Master Service Agreement (MSA)

Master Service Agreement

This Master Service Agreement (this “Agreement”) is made between the party receiving services (the “Company”) and MFGx, LLC (“MFGx”) and contains the terms and conditions under which MFGx agrees to provide services to the Company.

The Company wishes to retain MFGx to provide the Services described within this Agreement, and MFGx wishes to provide the Services to the Company, upon the terms and conditions set forth below. Therefore, the parties agree as set forth in this Master Service Agreement.

MFGx LLC is a United States based company, registered legally in the State of Michigan as “MFGx, LLC”. The head office is located at 3341 Parkways Boulevard, Auburn Hills, MI 48326. MFGx provides companies with services considered to be Management Consulting. All profits from the business activities of MFGx and any employee, consultant, or affiliate, shall be accumulated in the United States.

Services

1.1 Services Generally: In consideration for payment of the fees as set forth in the Statement of Work, or Estimate, hereby agreed upon by both the Company and MFGx, MFGx agrees to perform said services in accordance with the defined requirements within the Statement of Work or signed Estimate. MFGx will describe any services that cannot be performed and/or need to be performed by a 3rd party, software vendor, or other party to the best of our ability. MFGx will not subcontract any services without the Company’s prior written consent and will remain responsible for the actions or failure to act of its subcontractors.  

1.2 Personnel: All individuals providing services must be MFGx’s employees unless Company expressly agrees otherwise in writing. Individuals providing services that are employed by MFGx or any approved subcontractor are referred to as “Personnel”. All actions and omissions of any subcontractor are deemed MFGx’s actions and omissions under this Agreement.  If Company believes that the performance or conduct of any Personnel is unsatisfactory for any reason or is not in compliance with the provisions of this Agreement, Company will notify MFGx and MFGx will promptly address the performance or conduct of the person, or, at Company request, immediately replace the person with another person acceptable to Company with sufficient knowledge and expertise to perform the services in accordance with this Agreement.

1.3 Statement of Work: Each statement of work shall be agreed upon by both parties, executed by authorized representatives of both parties and consecutively numbered. Each statement of work shall set forth, at a minimum, a description of the work to be performed; delivery schedule for performance and completion of the work, including anticipated delivery dates, where appropriate: amount, schedule, and method of payment of compensation; completion, change and acceptance criteria, if applicable; designation of the names and addresses of the project coordinators of each party and other billing terms specific to the work in question. An approved estimate shall suffice in lieu of a statement of work, if agreed upon by both parties.

Term and Termination

2.1 Term: This Agreement between the Company and MFGx shall remain in effect until such time that either party wishes to terminate the agreement, pursuant to the terms herein.

2.2 Termination by Company for Cause: In addition to the other termination rights set forth in this contract, Company shall have the right to terminate the Agreement for cause immediately by written notice to MFGx upon the occurrence of any of the following events:
MFGx ceases conducting business in the normal course, admits is insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership, or reorganization.

MFGx breaches any material provision of this Agreement and fails to fully cure such breach and all intervening breaches within thirty (30) days (or within a different time frame agreed upon in writing by the parties) following written notice thereof from Company.

2.3 Termination by Company for Convenience: Company may terminate this Agreement with MFGx for convenience at any time upon sixty (60) days written notice to MFGx. If Company terminates this Agreement for convenience, then upon the effective date of such termination: (a) all rights granted hereunder shall terminate and MFGx shall no longer provide services to Company.

2.4 Termination by MFGx for Cause: If Company fails to pay any undisputed amount due pursuant to this Agreement or otherwise breaches any other material provision of this Agreement and fails to cure such failure to pay or material breach within thirty (30) days following written notice thereof from MFGx, MFGx may, at its sole option, terminate this Agreement and all services immediately by written notice to the Company.

2.5 Termination by MFGx for Convenience: MFGx may terminate this agreement with Company for convenience at any time upon (60) days written notice to Company, effective on the next renewal date. Upon written notice of termination, MFGx shall continue to provide services to Company for the duration remaining on the contract term as per this full agreement. Company shall still be obligated to pay any fees and/or expenses owed to MFGx that may become due outside of the effective contract date.

Confidentiality

3.1 Permitted Uses: Each party shall use the other’s confidential information only for the purposes of this Agreement and/or a Statement of Work/schedule. Each party shall maintain the confidentiality of the other party’s confidential information in the same manner in which it protects its own confidential information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party’s confidential information.

3.2 Disclosure to Certain Parties: Each party is permitted to disclose the other party’s confidential information to its employees, contractors and other third parties on a need to know basis only, provided that such employees, contractors and/or third parties have written or legal confidentiality obligations to that party no less stringent than those contained in this Agreement. Each party shall be and remain fully liable and responsible for its recipients’ unauthorized disclosure or use of the other party’s confidential information.

3.3 Required Disclosure: In the event that the receiving party or any of its representatives becomes legally compelled by deposition, interrogatory, subpoena, civil investigative demand or other similar legal process to disclose any confidential information, it may disclose such confidential information to the extent legally required; provided, however, that it shall first (a) notify the disclosing party of such legal process, unless such notice is prohibited by laws; (b) attempt to obtain the disclosing party’s consent to such disclosure; and (c) in the event such consent not given, agree to permit a motion to quash, or other similar procedural step, to seek protection against the production or publication of such confidential information. In making any disclosure under such legal process, the receiving party shall use reasonable efforts to preserve the confidential nature of such confidential information. Nothing herein shall require any party to fail to honor a subpoena, court or administrative order, or similar requirement on a timely basis.

3.4 Exclusions: The confidentiality provisions of this Agreement do not apply to information that is or becomes generally available or known to the public through no act or omission of the receiving party; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the disclosing party; or created by a party independently of its access to or use of the other party’s confidential information.

3.5 Legal and Equitable Remedies: The parties acknowledge and agree that due to the unique nature of the confidential information, any breach of this Agreement would cause irreparable harm to the disclosing party and the disclosing party shall have the right to enforce this Agreement or any of its provisions by injunction, without prejudice to any other rights or remedies the disclosing party may have for a breach of this Agreement. Failure or delay by either party to any of its representatives in exercising any right, power or privilege under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege under this Agreement.

3.6 Survival: The provisions of this section shall survive the termination of this Agreement for so long as the confidential information remains confidential.

Fees and Expenses

4.1 Services Fees: The amount of services fees as outlined in the Statement of Work or Estimate pursuant to this Agreement shall be due within thirty (30) days from the date of the invoice. These fees are stated in United States Dollars and must be paid in United States Dollars. MFGx reserves the right to adjust hourly rates on an individual Statement of Work/Estimate, however, these adjustments shall only ever apply directly to the work being performed within that defined Statement of Work/Estimate. Typically, these rates will be decreased when a Company is looking to engage in large scale projects. The rate will never be adjusted greater than, whatever the current/in effect rate is for the calendar year.

4.2 Expenses: Expenses may be incurred by MFGx employees or consultants from time to time for travel or other purpose directly related and pursuant to this Agreement. These fees, shall be reviewed with Company before being incurred. The Company may, at Company’s sole discretion, choose to absorb said fees on their own rather than reimburse MFGx. Such fees may include travel related expenses, rental cars, lodging, parking fees, meals, mileage, work permits, airfare, other fees pursuant to carrying out duties set forth pursuant to this Agreement. Payment for these expenses shall be due no later than thirty (30) days from the date of the invoice. MFGx makes no promise or guarantee that resources for any project will be local. Budgetary estimates generally do not include travel related time or expenses, unless stated otherwise.

4.3 Billing Discrepancies: Billing discrepancies must be raised within Thirty (30) days from the receipt of an invoice, in writing to MFGx, otherwise the Company has materially accepted the invoice, the amounts and the liability to pay the invoice without further consideration.

4.4 Taxes: The fees and charges referenced herein and in any Statement of Work or schedule(s) are exclusive of any taxes. Company will pay to MFGx an amount equal to any taxes arising from or relating to this Agreement, including without limitation, sales, service, use or value added taxes, which are paid by or are payable by MFGx. “Taxes” means any form of taxation, levy, duty, customs fee, charge, contribution, or impost of whatever nature and by whatever authority imposed (including without limitation any fine, penalty, surcharge or interest), excluding, however, any taxes based solely on the net income of MFGx. If Company is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payment due to MFGx, then the sum payable to MFGx shall be increased by the amount necessary so that MFGx receives an amount equal to the sum it would have received had Company made no withholdings or deductions.

4.5 Default: MFGx, LLC reserves the right to suspend all services to the Company if the Company enters a default status on any monies owed. This suspension of service shall commence immediately upon written notification from MFGx to the Company. Any invoice outside of the terms established in section 4.1 and 4.2 may be in default status. Pursuant to this agreement, shall a Company fail to remit payment in full for any invoice, within the agreed upon payment terms contained herein all open invoices shall be subject to late fees in the amount of 15% per annum, to be calculated daily on the open invoice balance(s). Company may not place any claims upon MFGx of harmful or wrongful termination of services if Company is in default.

4.6 Resuming Service: Should Company enter default status per 4.5 at any time during the project, as stated, MFGx reserves the right to suspend all services and support until such time that defaulted invoices are paid in full. Upon such time that invoices have been paid in full, MFGx shall, reserve the right to require pre-paid blocks of hours from the Company to resume services. If pre-paid blocks are necessary, services will only be rendered after receipt of payment for the pre-paid block.

4.6 Collections: MFGx, LLC reserves the right to perform collection of any invoices that the Company defaults on or becomes default pursuant to any other terms within this agreement or termination thereof. During this process, all fees incurred by MFGx including legal fees, time and expenses related to the collection process performed by MFGx and/or any 3rd parties to the process, shall become the responsibility of the Company and payable to MFGx. These amounts incurred shall be added to any final judgement/settlement amounts to be paid by Company, without exception and is hereby agreed and accepted by all parties of this agreement.

4.7 Rate Changes: MFGx reserves the right, to modify its hourly rates on an individual basis per statement of work, or estimate. Hourly rates will be adjusted each calendar year customarily to adjust for inflation and other increased overhead costs, these increases should not exceed 5% of your current, effective rate for the prior year, these increases shall ONLY apply to new work (i.e. new Statement of Work or Estimate) that you engage with MFGx on, post rate increase. Any work already in progress will remain unaffected by any future rate increases.

Warranty Disclaimer

THE SERVICE PROVIDER IP IS PROVIDED “AS IS” AND SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SERVICE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

Mutual Indemnification

5.1 By Company: Company shall, at its expense, defend, indemnify and hold MFGx and its shareholders, directors, officers, employees, agents, successors and assigns harmless from and against any and all Claims and all Damages arising out of or relating to: (a) the material breach, inaccuracy or untruthfulness of any representation or warranty made by Company in this Agreement, and/or (b) injury (including death) to any persons or damage to or loss of tangible personal or real property resulting from Company’s negligent acts or omissions.

5.2 By MFGx: MFGx shall, at its expense, defend, indemnify and hold Company and its shareholders, directors, officers, employees, agents, successors and assigns harmless from and against any and all Claims and Damages arising out of or relating to: (a) the material breach of any representation or warranty made by MFGx in this Agreement, (b) injury (including death) to any persons or damage to any tangible personal or real property arising out of any services furnished by MFGx under this Agreement or (c) the services, excluding Third party software, infringing upon or misappropriating any United States patent, trademark or copyright of any third party. In the event any series are held or are likely to be held to constitute an infringement, MFGx shall, at its expense, first use reasonable and prompt efforts either (x) to procure for Company the right to continue to use such services, or (y) to modify the services so that they are non-infringing and of at least equivalent performance and functionality and scope, as applicable ,or (z) if both of the foregoing options are not commercially feasible, in MFGx’ sole reasonable discretion, provide functionally equivalent replacement services, or offer to reimburse Company’s cost of doing so.

Governing Law

This Agreement shall be construed and enforced according to the laws of the State of Michigan without reference to principles of conflicts of laws. Unless the parties agree to arbitration, the sole and exclusive forum for any disputes arising out or relating to this Agreement shall be brought in the federal or state courts within jurisdiction over matters in Oakland County, Michigan, and the parties hereby irrevocably consent to such jurisdiction.

Enforceability

If for any reason this Agreement, or portion thereof, is found to be unenforceable, that provision shall be enforced to the maximum permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. The section headings used are reference and convenience only and shall not enter into the interpretation thereof.

Entire Agreement

This Agreement including any Statements of Work and any schedule(s), and any amendments thereto constitute the entire agreement between the parties with respect to the subject matter and there are no representations, understandings or Agreements which are not fully expressed herein. This agreement supersedes and merges all prior proposals, understandings and all other Agreements, oral and written between the parties relating to the subject matter of this Agreement. The terms and conditions contained in any purchase order supplied by Company, now or in the future are not effective and are superseded by this Agreement. The Agreement may not be modified or altered except by written instrument duly executed by both parties. This Agreement shall be binding on and endure to the benefit of each party and its successors and permitted assigns.

General Terms

9.1 Independent Contractors: the relationship between Company and MFGx is that of independent contractor. Nothing in this Agreement shall be construed as creating a relationship between Company and MFGx of joint ventures, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document.

9.2 Responsibility for Personnel: MFGx will be responsible for all personnel it may assign to perform its obligations under this Agreement. Personnel furnished by MFGx shall be and will remain MFGx employees, and under no circumstances are they to be considered Company’s employees or agents. No federal, state or local income or payroll tax of any kind shall be withheld or paid by Company on behalf of MFGx or its employees. No MFGx employees shall participate in any benefit of Company, including health insurance, paid vacation or other benefit provided by Company to its employees.

9.3 Employee Solicitation: During the term of this Agreement and for one year thereafter, the parties shall not, except with the prior written consent of the other, solicit for employment any person employed by the other party then or within the preceding twelve months and who became known to a party in connection with this Agreement. An employee’s response to a general advertisement for employment shall not be deemed solicitation for the purposes of this Agreement. Each party’s sole and exclusive remedy for a breach of this section is to have the other party discharge the hired employee and/or retract any offer of employment to the applicable employee.

9.4 No Waiver: Any waiver of a party’s right or remedy related to this Agreement must be in writing, signed by that party to be effective. No waiver shall be implied from a failure of either party to exercise the right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of this Agreement.

9.5 Assignment: This Agreement may not be assigned without the prior written consent of the other party, except that either party shall have the right to assign or transfer this Agreement in connection with any transaction or series of transactions in which all or part of its business becomes the business of another person (including an affiliate of the assigning party) whether by way of reorganization, consolidation, arrangement, merger, transfer sale or otherwise who agrees in writing to be bound by this Agreement and assumes the assigned obligations in respect of such business on and after the effective date of such assignment.

9.6 Privacy Laws: Each party is responsible for complying with all applicable data transfer, data protection and privacy laws.

9.7 Severability: If any provision of this Agreement is determined to be invalid, illegal, or unenforceable by an arbitrator or any court of competent jurisdiction from which no appeal exists or is taken, that provision shall be severed from this Agreement replaced with an enforceable provision which most closely reflects the intent of the parties with respect thereto and the remaining provisions of this Agreement shall remain in full force and effect.

9.8 English Language: English shall be the governing language of this Agreement and any translation of this Agreement into any other language shall be secondary to the original English version and the form and substance of any such translation will be determined at the sole discretion of MFGx.

Limitation of Liability

10.1 Except for Company’s payment obligations under this Agreement, in the event either party shall be liable to the other party for any matter arising out of or in any way relating to this Agreement, whether based on an action or claim in contract, tort, or otherwise, then the amount of damages recoverable against the other party shall not exceed the amounts paid by Company to MFGx for the prior one (1) month for the specific service which is the subject of the action or claim under this Agreement.

10.2 Neither party shall be liable for indirect, special, consequential, or punitive damages of any party, including third parties, even if the party has been advised of the possibility of such damages.

10.3 Exclusions: The foregoing limitations and exclusions shall in no event apply to claims relating to either party’s breach of its confidentiality obligations set forth in this Agreement pursuant to Section 3 above entitled “Confidentiality” or claims pursuant to each party’s indemnity obligations as set forth in this Agreement section 5 above entitled “Mutual Indemnification”, or to either party’s gross negligence or willful misconduct. 10.4 Commencement of Actions: No party may commence an action under this Agreement more than one (1) years after the occurrence of the breach, or, in the event the breach is not discovered by the injured party when it has occurred, more than one (1) years after the breach could, in the exercise of due diligence, have been discovered by such party.

Notices

Unless otherwise provided in this Agreement, all notices (except for routine business communications) must be in writing and sent to the individual below, either by hand delivery; messenger; certified mail, return receipt requested; overnight courier; or by facsimile or by e-mail (with a confirming copy by regular mail) and shall be effective when received by such party at the address listed below or other address provided in writing.

MFGx, LLC
3341 Parkways Blvd
Auburn Hills, Mi 48326

E-mail: contracts@mfgx.io

Mutual Acceptance

These terms and conditions shall be considered to have been mutually accepted by both the Company and MFGx upon acceptance of any Proposal, Order Form and / or payment of any invoice for services rendered by MFGx to Company. Unless otherwise agree upon, in writing, signed and dated by all parties these terms and conditions are to be considered valid and shall supersede any other terms and conditions not authored by MFGx, LLC.

Right to Modify

MFGx, LLC reserves the right to modify the terms and conditions as set forth in this Master Service Agreement at any time and without notice. A link to the current Master Service Agreement and it’s terms and conditions shall be included in the footer of any proposal, order form and invoice generated by MFGx for the Company.