Master Services Agreement

Last Updated: 1.3.18

MASTER SERVICES AGREEMENT

This Master Services Agreement (the “Agreement”) is made and entered into between Responsive Advisors, Inc. (“Responsive Advisors”) and the client that has executed a Statement of Work (“SOW”) with Responsive Advisors (hereinafter “Client”) and this Agreement shall govern the services provided by Responsive Advisors for the Client as referenced herein and in such SOW (collectively, the “Services”).

BY EXECUTING A SOW, CLIENT EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN THE SOW (“SOW EFFECTIVE DATE”).  IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE CLIENT’S LEGAL ENTITY, CLIENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND CLIENT.  IF CLIENT DOES NOT AGREE WITH THIS AGREEMENT, CLIENT MUST NOT EXECUTE THE SOW.

1. Services

1.1       Services under Statement of Work.  Client is engaging Responsive Advisors to provide Services as described in the relevant, duly executed SOW’s under this Agreement.  Neither party will have any obligation with respect to any draft SOW unless and until it is executed by both parties.  Except as otherwise provided herein, if any of the terms and/or conditions of this Agreement conflict with any of the terms and/or conditions of any SOW, the terms and/or conditions of such SOW will control solely with respect to the Services covered under such SOW.

1.2       Cooperation.  At all times during the term, Client shall fully cooperate with Responsive Advisors, and make competent, qualified personnel available to assist and answer questions as reasonably requested by Responsive Advisors.  Responsive Advisors will assume that all information, assumptions, representations and data that Client supplies is accurate and complete.  Responsive Advisors is not responsible for the independent verification of required information and shall not be responsible for delays in the provision of the Services caused by Client’s failure to provide such information.

1.3       Third Party Equipment.  Except as expressly set forth in any SOW, Responsive Advisors has not provided an estimate for, and is not responsible for, the selection or procurement of any hardware or equipment, operating system software, database software, or other third party software, connectivity, data transport, or other IP rights required to perform the Services.  Client is solely responsible for the selection, procurement, costs, and expenses of acquiring the same, and any other infrastructure required to support Client’s use of the Services.

2. Confidentiality

"Confidential Information" includes (i) all information related to the business of one party (“Disclosing Party”) and any of its affiliates, clients and other third parties, to which the other party (“Receiving Party”) has access, whether in oral, written, graphic or machine-readable form, in the course of or in connection with the Services; (ii) all notes, analyses and studies prepared by the Receiving Party incorporating any of the information described in this Article 2, and (iii) the terms and conditions of this Agreement.  The Receiving Party must only use the Disclosing Party’s Confidential Information for the purposes of this Agreement and may only disclose the Disclosing Party’s Confidential Information to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement.  The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement.  Confidential Information does not include information that: (a) is obtained by the Receiving Party from the public domain without breach of this Agreement; (b) was lawfully and demonstrably in the possession of the Receiving Party prior to its receipt from the Disclosing Party; (c) is independently developed by the Receiving Party without use of or reference to the Confidential Information; or (d) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.  In the event the Receiving Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the Disclosing Party, the Receiving Party will provide prompt notice to the Disclosing Party of such receipt, and may thereafter comply with such process. Upon request from the Disclosing Party, the Receiving Party shall return to the Disclosing Party, destroy or delete as the Disclosing Party directs, all original documents and copies (including those in electronic form) which contain or relate to Confidential Information of the Disclosing Party.  Each party acknowledges that a breach of this Article 2 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, injunctive or such further relief as may be proper from a court of competent jurisdiction.

3. Ownership

Responsive Advisors retains all rights, title, interest and ownership, of and all intellectual property rights with respect to the Services.  Responsive Advisors may provide materials to Client and its Representatives including but not limited to: information, notes, recordings, chats, analyses, courses, studies, videos, books, tests, presentational materials and other aids, procedures, frameworks, techniques, operating methods, know-how, processes, formulas, source and object codes, data, improvements, plans, modifications, and/or derivative works and any other information which could reasonably be expected to benefit competitors of Responsive Advisors (collectively, “Pre-Existing Materials”).  Client understands that the Pre-Existing Materials that it receives are confidential and proprietary to Responsive Advisors, and shall not be sold, loaned, rented, given away, distributed, advertised for sale on the ‘Internet’ and/or through any other medium, and/or exploited in any manner.  Responsive Advisors hereby grants, subject to Responsive Advisors’ receipt of payment under each applicable SOW in accordance with the terms and conditions therein, to Client a non-exclusive, non-transferrable, royalty-free, and limited license under Responsive Advisors’ intellectual rights in and to the Pre-Existing Materials to use solely for the purposes set forth in the applicable SOW, the term of the applicable SOW and solely as so embedded or included in conjunction with the Services.

4. Fees

4.1       Fees.  In consideration of the provision of the Services described herein and/or in any SOW, Client agrees to pay Responsive Advisors the fees set forth in the duly executed SOW.   All fees due and payable by the Client to Responsive Advisors under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.  The fees reflected in such SOW(s) shall be in U.S. dollars.

4.2       Taxes.  All fees due and payable under this Agreement are exclusive of taxes, which will be added at the prevailing rate from time to time.

4.3       Expenses.  Unless otherwise set forth in a SOW, travel and out-of-pocket expenses are included in the fees set forth in the relevant SOW’s.

4.4       Invoices. Responsive Advisors will provide Client with an invoice for fees that become due hereunder.  Unless otherwise set forth in an SOW, each invoice shall be due and payable by Client upon receipt of such invoice.  Invoices submitted by Responsive Advisors to Client are deemed accepted and approved unless disputed by Client.

4.5       Late Payments.  If the Client does not make payment within thirty (30) days from the date on which it is due to be paid, interest will be due and payable and calculated daily at a rate of one and one half percent (1.5%) per month.  Responsive Advisors may, in its sole discretion, suspend Services until payment is made in full without incurring any liability.  If Client’s unpaid invoices are referred to an attorney or collections agency, Client shall be liable for all reasonable attorney’s fees or collections agency fees related thereto.

5. Term

The term of this Agreement shall commence on the date of effective date of the applicable SOW and remain in effect through the term of the applicable SOW.

6. Termination

6.1       Termination for Breach.  If a party materially breaches this Agreement and/or any SOW (the "Defaulting Party"), and the Defaulting Party does not cure such breach within fourteen (14) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the relevant SOW upon written notice to the Defaulting Party.  Termination of a SOW and/or this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement or at law or in equity.

6.2       Termination for Convenience.  Unless otherwise agreed in a SOW, either party may terminate this Agreement at any time upon thirty (30) calendar days prior written notice to the other party.

6.3       Effect of Termination. Upon termination of this Agreement and/or SOW, Client will pay all outstanding fees, charges and expenses incurred through the effective date of termination.

7. Representations & Warranties

7.1       Each party represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of the State of organization; and (ii) has the power and authority to enter into this Agreement.

7.2       Responsive Advisors warrants that Services will performed in a good and workmanlike manner in accordance with applicable industry standards and practices.

7.3       Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.

7.4       Exclusive Remedy.  Client’s sole and exclusive remedy and Responsive Advisors’ sole and exclusive liability for any breach of the warranty set forth in Section 7.2 shall be for Responsive Advisors to re-perform the Services at no cost to Client.  This sole and exclusive remedy is available only if Responsive Advisors is promptly notified in writing within thirty (30) days after the performance of such Services that do not conform to the warranty set forth in Section 7.2.  For avoidance of doubt, this Section shall not be deemed to limit either party’s rights or remedies under any other Section of this Agreement.

8. Limitation of liability

EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT TO RESPONSIVE ADVISORS UNDER THE APPLICABLE SOW THAT GAVE RISE TO SUCH CLAIM.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND/OR ANY SOW, IN NO EVENT WILL CLIENT OR RESPONSIVE ADVISORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FOREGOING, NO LIMITATION OR EXCLUSION OF EITHER PARTY’S LIABILITY WILL APPLY WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR RELATING TO ARTICLE 2 AND ARTICLE 9 OF THIS AGREEMENT AND/OR ITS WILLFUL MISCONDUCT AND/OR GROSS NEGLIGENCE.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND/OR ANY SOW, THE EXCLUSIONS AND LIMITS STATED IN THIS AGREEMENT DO NOT APPLY TO ANY OF CLIENT’S OBLIGATIONS TO PAY FEES AND COSTS TO RESPONSIVE ADVISORS UNDER THIS AGREEMENT AND/OR ANY SOW.

9. Indemnification

9.1       Indemnification by Responsive Advisors.  Responsive Advisors agrees to indemnify, defend and hold Client harmless from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney’s fees, finally awarded, arising out of, and/or relating to, any claim (“Claim”) that Client’s use of the Pre-Existing Materials constitutes infringement, violation, trespass, contravention and/or breach in the United States of any patent, copyright, trademark, license and/or other property and/or proprietary right of any third party, and/or constitutes the unauthorized use and/or misappropriation of any trade secret of any third party.  Notwithstanding anything herein to the contrary, the indemnity in this Section 9.1, shall not apply (i) to a Claim arising from any modification of the Pre-Existing Materials by Client and/or any third party, and/or from the use of the Pre-Existing Materials not authorized by Responsive Advisors and/or in a manner contrary to those specific business functions outlined in the SOW and/or as expressly provided under this Agreement, to the extent such modification and/or use resulted in the Claim, (ii) if such Claim results from Client’s use of the Pre-Existing Materials after notice of the alleged or actual infringement from Responsive Advisors or any appropriate authority, and/or (iii) in the event of any breach of Client’s obligations under this Agreement and/or SOW and/or the use of the Pre-Existing Materials other than in accordance with and/or in connection with this Agreement, and/or in a manner not reasonably contemplated by this Agreement.  The indemnities set forth herein shall survive the termination of this Agreement.

9.2       Indemnification by Client.  Client shall indemnify, defend and hold Responsive Advisors and its officers, associates, employees, contractors and agents harmless from and against all Claims arising out of and/or related to (i) Client’s and/or its Representatives breach of the terms and/or conditions of this Agreement and/or SOW, and/or (iv) Client’s and/or its Representatives failure to use of the Services and/or Pre-Existing Materials in accordance with the terms and conditions set forth herein, and in the applicable SOW.

9.3       Conditions for Indemnification.   A party seeking indemnification under this Section shall (a) promptly notify the other party of the Claim, (b) give the other party the sole control of the defense and settlement of the Claim, and (c) provide, at the other party’s expense, out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the Claim.

9.4       Claim.  In the event of a Claim related to Section 9.1 described herein, Responsive Advisors shall be entitled at its own expense and option to (i) procure the right for the Client to continue utilizing the Pre-Existing Materials which are at issue; (ii) modify the Pre-Existing Materials to render same non-infringing; or (iii) replace the Pre-Existing Materials with an equally suitable, functionally equivalent, compatible, non-infringing Service. If none of the foregoing is possible as determined by Responsive Advisors in its sole and absolute discretion, Responsive Advisors may terminate this Agreement and the applicable SOW(s) without liability upon prior written notice to the Client. This Section sets forth the Client’s sole and exclusive remedy for any Claim related to Responsive Advisors’ intellectual property infringement indemnification obligations described herein.

10. Force Majeure

Notwithstanding any other provision of this Agreement, neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation fire, flood, earthquake, elements of nature, epidemics, communication line failures, power failures, acts of God, acts of war, terrorism, riots, civil disorders or rebellions (“Force Majeure Event”).  In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform those obligations for one (1) month due to such Force Majeure Event.  This Section does not apply to Article 2, or any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.

11. Independent contractor

Responsive Advisors is an independent contractor and will determine the method, details and means of performing the Services.  No party shall have the authority to bind, represent or commit the other.  Nothing in this Agreement shall be deemed or construed to create a joint venture or agency relationship between the parties for any purpose.  Nothing contained herein shall give or is intended to give any rights of any kind to any third persons.

12. Governing law and choice of forum

This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles.  Any action related to or arising from this Agreement shall take place exclusively in the courts situated in the City of Chicago, Cook County, Illinois and the parties hereby submit to the venue of the courts situated therein.

13. Solicitation

13.1     Employees. During the term of this Agreement and for a period of one (1) year thereafter, Client shall not, without the prior written consent of Responsive Advisors, directly, indirectly or through any other party solicit Responsive Advisors’ employees. Notwithstanding the foregoing, Client may hire the Responsive Advisor’s employees who respond to public advertisements.  In the event of a breach of this Article 13.1, the Client’s sole and exclusive liability and Responsive Advisor’s sole and exclusive remedy shall be for Client to pay the Responsive Advisor fifty percent (50%) of the employee’s first year salary.

13.2     Business Relationship.  Client agrees that during the term of this Agreement and for a period of one (1) year after the effective date of termination, Client shall not interfere in, or solicit or induce any change in or cessation of, the business relationship between Responsive Advisors and any of its clients, independent contractors, agents, representatives, contract manufacturers, suppliers or investors.

14. Assignment

Client may not assign, as a result of a change of control or by operation of law or otherwise, its rights or obligations under this Agreement without the prior written consent of Responsive Advisors.  This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.

15. Notices

All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or: (a) personal delivery to the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.

16. General

16.1     No Waiver by Conduct.  No waiver of any of the terms of this Agreement and/or any SOW will be valid unless in writing and designated as such.  Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence.

16.2     Severability.  If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.

16.3     Amendment.  Each SOW and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each party.  The exchange of a fully executed SOW by fax, electronic and/or computer image shall be sufficient to bind the parties to the terms and conditions of such SOW.  Notwithstanding anything herein to the contrary, Responsive Advisors may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Client’s execution of a new or additional SOW in which the new terms of this Agreement will be incorporated.

16.4     Headings.  The headings and titles of the paragraphs of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.

16.5     Recitals.  The recitals are hereby incorporated into the body of this Agreement for all intents and purposes as if fully set forth herein.

16.6     Survival.  Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination on of this Agreement.

16.7     Entire Agreement.  This Agreement and each SOW constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.

16.8     Attorney Fees.  If either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys' fees) incurred in connection with the action.

16.9     Construction.  The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either party hereto. The parties acknowledge that they have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement.