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This Plumstack Consulting, LLC Master Services Agreement (“MSA”)is entered into between Plumstack (defined below) and Customer. If Customer contracts for Services from Plumstack hereunder, Service specifics, pricing and other details will be contained in an Order Form that will incorporate the terms of this MSA. Nothing in this MSA shall obligate a Party to enter into any Order Form, but by entering into an Order Form that incorporates this MSA, you agree that you have read and agree to be bound by this Agreement. Plumstack and Customer are each individually a “Party” hereunder or, collectively, the “Parties” hereunder.
1. Definitions
A. “Affiliate” means any legal entity that a Party owns, that owns a Party or that is under common ownership with a Party, where “ownership” for purposes of this definition means control, directly or indirectly, of more than a fifty percent (50%) interest in an entity.
B. “Agreement” means collectively this MSA, including any exhibits and attachments hereto, and the applicable Order Form entered into.
C. “Customer” means the entity receiving Services from Plumstack that has entered into the applicable Order Form.
D. “Deliverable” means tangible results of the Services that are set forth in an Order Form. Deliverables do not include the Products.
E. “Plumstack” means the Plumstack Affiliate that has entered into the applicable Order Form.
F. “Services” mean any professional, consulting, or other services to be provided by Plumstack under the Agreement, as described in more detail in an applicable Order Form.
G. “Order Form” means the applicable order, order form, statement of work or other similar document that describes the Services to be performed and any Deliverables to be provided and that is executed by Plumstack and Customer and incorporates the terms of this MSA.
2. Services
A. Plumstack will provide the Services in accordance with the Order Form. Any changes in the Services, consisting of additions, deletions, or other revisions will require an amendment agreed upon by both Parties.
B. Payment. Customer will pay all fees in an Order Form within 30 days’ of the date of invoice, unless the Order Form provides otherwise. Plumstack’s fees exclude any taxes, duties, tariffs, levies or other governmental charges or expenses (including, without limitation, any value added taxes), which, if applicable, will be billed to and paid by Customer. If any taxes are required to be withheld on payments made by Customer to Plumstack, Customer may deduct such taxes from the amount owed Plumstack and pay them to the appropriate taxing authority; provided however, that Customer promptly secures and delivers an official receipt for those withholdings and other documents reasonably requested by Plumstack. Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law. Customer remains obligated to pay Plumstack for the amount of tax withheld until Customer provides to Plumstack the official receipt and other documents reasonably requested. Plumstack may, at its option, assess a finance charge of the lesser of 18% per annum, accrued, calculated and payable monthly, or the highest amount allowed by law, on all past due amounts due to Plumstack.
3. Confidentiality
A. What is included. “Confidential Information” is non-public information, know-how and trade secrets in any form that are designated as “confidential” or that a reasonable person knows or reasonably should understand to be confidential. It includes non-public information regarding either Party’s products or customers, marketing and promotions, or the negotiated terms of Plumstack agreements.
B. What is not included. The following types of information, however marked, are not Confidential Information. Information that: (i) is, or becomes, publicly available without a breach of the Agreement; (ii) was lawfully known to the receiver of the information without an obligation to keep it confidential; (iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential; (iv) is independently developed by a Party without use of the other Party’s Confidential Information; or (v) is a comment or suggestion one Party volunteers about the other Party’s business, products or services. All comments, suggestions or feedback regarding Plumstack’s business, products or services are the property of Plumstack.
C. Treatment of Confidential Information. Subject to the other terms of the Agreement, each Party agrees that: it will not disclose the other Party’s Confidential Information to third parties; and it will use and disclose the other Party’s Confidential Information only for purposes of the Parties’ business relationship with each other. Each Party agrees: (i) to take reasonable steps to protect the other Party’s Confidential Information – these steps will be at least as protective as those the Party takes to protect its own Confidential Information; (ii) to notify the other promptly upon discovery of any unauthorized use or disclosure of Confidential Information; and (iii) to cooperate with the other to help regain control of the Confidential Information and to prevent further unauthorized use or disclosure.
D. Disclosing Confidential Information if required to by law. Each Party may disclose the other Party’s Confidential Information if required to comply with a court order or other government demand that has the force of law. Before doing so, each Party will seek the highest level of protection available and use reasonable efforts to give the other Party enough prior notice to provide a reasonable chance to seek a protective order
4. Non-Plumstack software and technology
A. Customer is solely responsible for any software or technology that it installs. Plumstack is not a Party to and is not bound by any terms governing Customer's use of Non-Plumstack software of technology.
5. Limitation of Liability
A. To the extent permitted by applicable law, the total liability of each Party, including its Affiliates and its Representatives, for all claims arising under the Agreement is limited to direct damages up to the following amounts: the amount Customer was required to pay for the Services under the applicable Order Form. These limitations apply regardless of whether the asserted liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, the limitation in this section (a) will not apply to: (i) liabilities arising out of any breach by either Party of its obligations under the section entitled “Confidentiality”; or (ii) violation by either Party of the other Party’s intellectual property rights.
B. EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR CONTRACTORS, WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF (i) ITS CONFIDENTIALITY OBLIGATIONS, OR (ii) THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. Neither Party shall bring any action against the other Party’s Affiliates or Representatives in respect of any matter disclaimed on behalf such Party in the Agreement. Each Party will indemnify the other in the event of any breach of this provision.
6. Term and Termination
A. This MSA will remain in effect until terminated. Either Party may terminate it at any time by giving at least 30 days’ prior written notice. The sole effect of terminating this MSA will be to terminate the ability of either Party to enter into subsequent Order Forms under this MSA. Termination of this MSA will not, by itself, result in the termination of any Order Form previously entered into under this MSA, and the terms of this MSA will continue to apply to any Order Form until that Order Form itself is terminated or expires.
B. The term and termination provisions for an Order Form will be set forth in that Order Form. Notwithstanding the foregoing, unless otherwise provided in a Order Form, Plumstack may terminate any Order Form upon 30 days’ notice and either Party may terminate the portion of the Order Form that applies to the Services if the other Party is (1) in material breach or default of any obligation that is not cured within 30 days’ notice of such breach or (2) fails to pay any invoice that is more than 90 days outstanding.
7. Miscellaneous
A. Notices, authorizations, and requests in connection with the Agreement will be sent by regular or overnight mail or by express courier to the addresses and numbers listed in this Agreement or the applicable Order Form. Notices will be treated as delivered on the date shown on the return receipt or on the courier confirmation of delivery. Copies of any notice Customer provides Plumstack shall be provided to:
Jeffrey M Hartmann
1580 S. Milwaukee Ave Ste 525
Libertyville, IL, 60048-3762
B. Either Party may assign all its rights under the Agreement, to an Affiliate, but it will, prior to such assignment, notify the other Party inwriting of the assignment. Any assignment will not relieve the assigning Party of its obligations under the assigned agreement.
C. If a court holds any provision of the Agreement to be illegal, invalid, or unenforceable, the rest of the document will remain in effect, and the Agreement will be amended to give effect to the eliminated provision to the maximum extent possible. A waiver of any breach of the Agreement is not a waiver of any other breach. Any waiver will be in writing and signed by an authorized representative of the waiving Party.
D. Any action to enforce or arising out of this Agreement will be brought only in the state or federal courts located in Chicago, Illinois, USA. Each Party consents to the jurisdiction of such courts in any action and waives their respective rights to trial by jury. This choice of jurisdiction and venue will not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
E. Customer is free to enter into agreements to license, use, or promote non-Plumstack software or services. Customer shall not make any claims about Plumstack or Plumstack’s Services unless pre-approved by Plumstack.
F. In the event of any conflict between the terms of this MSA and any terms of any Order Form, the terms of the Order Form shall control. The Agreement may be amended only by a formal written agreement signed by both Parties. Any terms and conditions contained in a purchase order, purchase requisition or other document that are in addition to or contradict the terms of this Agreement will not apply.
G. Plumstack’s ability to deliver Services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any data from Customer needed to deliver the Services. Customer will provide to Plumstack any and all data necessary for Plumstack to perform the Services. Except as otherwise provided in a Order Form, all data furnished by Customer will be reliable and accurate such that Plumstack can rely on such information without further investigation; and Customer shall be responsible for any and all costs incurred by Plumstack as a result of any incomplete and/or erroneous Customer-furnished information/data. Plumstack is not liable and Customer waives any claim for the consequence of any action by Plumstack based on any incomplete or inaccurate information furnished by the Customer or third parties upon which Plumstack reasonably relies, and Customer agrees to defend, indemnify and hold harmless Plumstack against third party claims resulting from the consequences of such incomplete or inaccurate information, including reasonable attorneys’ fees and other expenses incurred in defending against such claims.
H. In the marketing and promotion of its products and services, Plumstack, with Customer’s permission, may use Customer’s trade name, service mark and photographs of the Property in Plumstack promotional materials, publish case studies based on data and work completed for Customer, and issue news releases regarding the Services performed at the Customer site. All such materials will be subject to Customer review and approval prior to publication.
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