This MASTER SERVICES AGREEMENT (“Agreement”) is made and entered into effective as of the date last signed by the Parties below (“Effective Date”), by and between Andela Inc. (together with its subsidiaries, affiliates, predecessors, successors and assigns, “Andela”), having an address of 580 Fifth Avenue, Suite 820, New York, NY 10036, and ______________________ (together with its subsidiaries, affiliates, predecessors, successors and assigns, “Client”), having an address of ______________________. Andela and Client are collectively referred to as the “Parties” and individually as a “Party”.
WHEREAS, Andela is in the business of staffing specialized professionals (“Talent”) from its global talent network who provide engineering and/or other professional services; and
WHEREAS, Client desires to engage Andela to staff Talent for Client.
NOW THEN, for and in consideration of the mutual promises and covenants herein contained, the Parties agree as follows:
Andela agrees to staff Talent for Client and provide any such service (the “Services”) as described in one or more Order Form and Statement of Work (each, an “SOW”) in the form attached as Exhibit A hereto. Any conflict or inconsistency between the provisions of this Agreement and any executed SOW or Order Form shall be resolved in favor of the Order Form, SOW, and Agreement, in that order.
2. Terms and Termination
- Continuation. This Agreement shall remain in effect and govern Services provided to Client by Andela until this Agreement is terminated, or the Parties agree otherwise (the “MSA Term”). Each SOW shall commence on the applicable start date and shall continue for the “Initial Term” set forth therein. After the Initial Term, each SOW shall automatically renew for additional one-month periods until either Party terminates such SOW in accordance with the terms hereof.
- Termination for Convenience. This Agreement may be terminated by either Party upon thirty (30) days’ prior written notice to the other Party. Each SOW may be terminated, in whole or in part, by either Party upon thirty (30) days’ prior written notice to the other Party.
- Termination for Cause.
- Material Breach. With the exception of monetary breaches as described in Section 2(c)(ii), either Party may terminate this Agreement or any SOW on the other Party’s breach of any material provision of this Agreement or a SOW. The non-breaching Party must give fourteen (14) calendar days written notice (describing the breach in detail) and the opportunity to cure the breach.
- Monetary Breach. Andela may terminate this Agreement or any SOW if Client fails to make a monetary payment within thirty (30) days of receipt of an invoice. Andela shall give Client fourteen (14) calendar days’ written notice (describing the amounts owed) and the opportunity to cure the breach.
- Effect of Termination. Upon termination of this Agreement for any reason, Client shall immediately pay to Andela all amounts owed to Andela pursuant to Section 3 hereof for Services performed prior to the effective date of termination including any expense reimbursement under Section 3(c). In the case of termination for Client’s breach, Client shall also be responsible for Andela’s reasonable costs relating to enforcing Client’s obligations, including the collection of unpaid charges due and payable under this Agreement. For the avoidance of doubt, termination of this Agreement shall not affect rights and/or obligations of the Parties which arose prior to any such termination, including without limitation warranties, indemnities, limitations of liability, which by their nature extend beyond the expiration or termination of this Agreement (unless otherwise provided in applicable SOWs) and such rights and/or obligations shall survive any such termination.
3. Professional Services Fees, Consideration, Payment
- Fees. Client shall pay Andela the fees (the “Fees”) set forth in the applicable SOW. All Fees are due and payable by Client on a monthly basis within thirty (30) calendar days of receipt of an invoice for such Fees. If Client pays invoices within five (5) calendar days, Client may receive a discount equal to a one and a half percent (1.5%) reduction in their Fees (“Prompt Payment Discount”). If Client provides pre-payment of at least six (6) months of Fees, Client may receive a discount equal to a two percent (2%) reduction in their Fees (“Pre-Payment Discount”), provided that said discount cannot be combined with the Prompt Payment Discount. Invoices shall be issued prior to the 5th day of each month in which the Services are to be performed. Late payments accrue interest at a rate of the lesser of 1.5% per month or the highest applicable lawful rate.
- Fee Disputes. Client shall notify Andela of any disputed Fees in writing (along with substantiating documentation) within fifteen (15) calendar days of receipt of an invoice. Client will be deemed to have accepted all invoices for which Andela does not receive timely notification of dispute, and Client shall pay all undisputed amounts due under such invoices by the due date set forth on the invoice. The parties shall seek to resolve all such disputes expeditiously and in good faith.
- Billing Contact. Each Party shall, from time to time, designate a single point of contact that shall have primary responsibility on behalf of the designating Party for reviewing, responding to and resolving any billing-related or payment-related inquiries that may arise during the course of this Agreement.
- Expenses. Andela is entitled to reimbursement from Client for documented “out-of-pocket” and travel expenses that are reasonably incurred and necessary for Andela’s performance of the Services. Unless otherwise specified in the applicable SOW, Client must pre-approve in writing all expenses for reimbursement. Andela will support all requests for reimbursement of travel expenses with documentation including receipts for expenses.
- Uplift. On each anniversary of the Initial Term of this Agreement, the Fees in the applicable SOW will increase by a minimum of six percent (6%) to account for Talent performance and annual market adjustments. Andela will provide thirty (30) days’ notice of such increase.
4. Staffing, Personnel
Andela will source, assess, engage and select Talent according to the applicable SOW. Client shall have the opportunity to interview any Talent selected by Andela, and Client shall determine in consultation with Andela in good faith whether such personnel shall perform the Services. Client shall be permitted to request a replacement of any Talent within the first two (2) weeks of their engagement (such Talent, the “Replaced Talent”) and will not be charged for such Replaced Talent. Client agrees to provide Andela with its feedback on any given Talent within two (2) business days of any interview. After the first two (2) weeks, replacement requests are subject to the notice period set forth in Section 2(b) above. Andela shall use reasonable efforts to provide the Services through the same personnel for the duration of a SOW, provided that Andela shall be entitled to replace such personnel with personnel of equivalent qualification and experience on no less than five (5) business days’ notice to Client. Talent may include Andela’s employees, independent contractors, subcontractors, or agents.
5. Intellectual Property
- Assignment. All copyrights in any deliverables delivered pursuant to an SOW (“Deliverable”) or arising out of the Services performed by the Talent will become the property of Client. Andela hereby assigns to Client, or its designee, all rights, title and interest of Andela in and to any and all such copyrights throughout the world. Andela agrees that, to the full extent permitted under applicable law, all Deliverables shall constitute “works made for hire” (as such term is defined in 17 U.S.C. § 101) for Client. To the extent that any Deliverable does not constitute a “work made for hire” for Client, Andela hereby irrevocably assigns, transfers, and conveys (and agrees to assign, transfer, and convey, without further consideration) to Client, on a worldwide and perpetual basis, all right, title, and interest in and to any and all Deliverables (including all intellectual property rights therein). Andela agrees to execute such further documents or take such further actions (at Client’s expense) that may be necessary to register or enforce Client’s intellectual property rights in the Deliverables.
- Andela Pre-Existing Rights. Andela shall retain any of its pre-existing intellectual property rights and any residual rights provided that to the extent any such intellectual property rights are embodied in the Deliverables, Andela hereby grants Client a non-exclusive, royalty-free, perpetual, irrevocable, world-wide license to use such pre-existing intellectual property rights to the extent necessary for the use of the Deliverables.
- Client Materials. Client shall retain ownership of all content and materials provided to Andela hereunder. Client takes full responsibility for any content (including, without limitation, graphics, audio, copy text, video, and images) provided to Andela to be used for the Services. Client represents and warrants that it has full rights to exploit all content and materials provided to Andela.
Client is not liable for taxes relating to Andela’s net income. Client shall be responsible for sales, use, or value-added taxes it owes due to this Agreement that the law requires Andela to collect from Client. In the event that Andela is required at any time to pay any tax for which Client is responsible, Client shall promptly reimburse Andela for such payments, subject to the provision to Client of supporting documentation evidencing such payments.
- Each Party warrants and represents that it has full authority to enter into this Agreement, to consummate the transactions contemplated hereby, and that this Agreement is not in conflict with any other agreement to which such Party is a party or by which it is bound.
- Client warrants and represents further that it will provide Andela with all necessary reasonable cooperation and communication in relation to the performance of the Services.
- Andela warrants and represents further that:
- each of the Talent assigned to perform any part of the Services pursuant to an SOW shall have the proper skill, training, and background for such Talent’s level of competence as specified in the SOW so as to be able to perform in a competent and professional manner;
- upon assignment, Client shall receive good and marketable title to all copyrights in original materials included in any Deliverables or developed under this Agreement, unless otherwise specified in an SOW, free and clear of all liens, claims, encumbrances and security interests whatsoever of a third party;
- unless expressly set forth in an SOW, all Deliverables and Services provided by Andela to Client by its personnel are delivered or provided “as is” and “where is” and may or may not be error-free; and
- ANDELA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND EXCEPT AS EXPRESSLY PROVIDED HEREIN. SPECIFICALLY, ANDELA DISCLAIMS ALL GUARANTEES, REPRESENTATIONS AND WARRANTIES (WHETHER EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING), RELATING SOMEHOW TO THE SERVICES, THIS AGREEMENT OR AN SOW.
8. Limitation of Liability; Exclusion of Certain Damages
Except for liabilities resulting from either Party’s actual intentional and/or willful misconduct or breach of obligations under Section 10 (Confidentiality), each Party’s liability hereunder shall not exceed the fees paid or payable by Client within the one-year period immediately preceding the date that the alleged wrongful act first occurred. NEITHER CLIENT NOR ANDELA SHALL BE LIABLE TO ONE ANOTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND OR ANY LOST OR IMPUTED PROFITS ARISING OUT OF THIS AGREEMENT OR ANY AGREED UPON SOW OR ITS TERMINATION, HOWEVER CAUSED, AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. EACH PARTY HERETO WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
Andela agrees to indemnify Client, and Client’s directors, officers, affiliates, employees, personnel and agents against any and all losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), and to defend Client in any suit, claim, or proceeding, brought by any third party or governmental agency, arising from Andela’s breach of its obligations under this Agreement or any applicable SOW and/or Andela’s violation of any applicable law or regulation. Client agrees to indemnify Andela, and Andela’s directors, officers, affiliates, employees, personnel and agents against any and all Losses, and to defend Andela in any suit, claim, or proceeding, brought by any third party or governmental agency, arising from Client’s breach of any provision of this Agreement or any applicable SOW, and/or Client’s violation of any applicable law or regulation. In consideration of these indemnification obligations, each Party must provide the indemnifying Party prompt notice of the assertion of any claim and permit the indemnifying Party to assume the full control of the defense and/or settlement thereof. Notwithstanding the foregoing, an indemnifying Party shall not enter into a settlement which would affect any rights of the indemnified Party without such indemnified Party’s prior written consent.
In connection with entering into and performing under this Agreement and each SOW, each Party may receive or have access to commercially valuable technical and nontechnical confidential or proprietary information of the other Party (including confidential or proprietary information of a third party), including information in whatever form, relating to the business of such Party that is not generally known or available to others, including but not limited to, source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, payment terms, the terms of this Agreement and each SOW, marketing and business plans, information concerning such Party’s vendors, and such Party’s contemplated plans, strategies and prospects (“Confidential Information”). Except as expressly and unambiguously provided herein or in any agreed upon SOW, the receiving Party will hold in confidence and not disclose any Confidential Information of the disclosing Party and will similarly bind its personnel. Each Party acknowledges and agrees that any Confidential Information received or obtained from the other Party will be the sole and exclusive property of the other Party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement, any agreed upon SOW or as may be required by law. If disclosure is required by law, the Party required to disclose Confidential Information shall reasonably cooperate with the other Party (at the other Party’s request and expense) so that the other Party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is in the public domain prior to the disclosure or becomes part of the public domain through no wrongful act of the receiving Party; (b) was in lawful possession of the receiving Party prior to the disclosure; (c) was independently developed by the receiving Party outside the scope of this Agreement; or (d) was disclosed to the receiving Party by a third party who was in lawful possession of the information.
11. No Exclusivity
Andela’s Services, including but not limited to as such are described under the terms of this Agreement, are not and shall not be deemed to be exclusive to Client nor to Client’s affiliates. Andela is and shall remain free to render similar services to other entities, and to engage in all such activities as Andela deems appropriate, provided that in doing so Andela does not breach any covenants or obligation expressly set forth in this Agreement. Andela shall not have any duty or obligation to disclose to Client any confidential or proprietary information that Andela may acquire about the business, operations or activities of any other person or entity, even if such information could be deemed material and relevant information to Client.
12. Publicity, References
Each of Andela and Client may use the name and logo of the other Party in commercially reasonable marketing, advertising and/or publicity releases, and describe work completed under this Agreement and any related SOW in summary and general form, without revealing any of the other Party’s Confidential Information so long as the relationship between the Parties is accurately portrayed without securing additional written approval of the other Party.
Client acknowledges that Andela invests significant resources in sourcing Talent. Subject to Section 14, during the MSA Term and for one year thereafter, Client shall not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage for services (excluding the Andela Services hereunder), encourage or otherwise induce to terminate a relationship with Andela, any Talent who Client is introduced to through Andela in connection with this Agreement. For the avoidance of doubt, general solicitations that do not specifically target the Talent will not be considered solicitations in breach of this provision.
14. Hiring Fee
Subject to Andela’s express written consent, which may be withheld or conditioned in Andela’s sole discretion, in the event Client hires or engages (except through Andela) any Talent (the “Hired Talent”) within one year after the end of the MSA Term, Andela may waive Section 13 (Non-Solicit) only if Client (i) replaces the Hired Talent with a new Andela Talent, and (ii) pays a hiring fee of $50,000 (the “Hiring Requirements”). Direct hire of Talent (except through Andela) who have provided less than one year of Services is not permitted. Andela’s expenses incurred replacing Talent cannot be ascertained with certainty, so the Parties agree that the hiring fee is a reasonable estimate of Andela’s expenses to source, find, recruit, screen, engage and replace each Talent, and otherwise operate its business with respect to such Talent.
During the MSA Term and for one year thereafter, Client shall not induce or attempt to induce any customer, client, vendor, or supplier of Andela to cease, or reduce its level of, doing business with Andela.
Neither the making of this Agreement nor the performance of any provision hereunder shall be construed to constitute either Party or its personnel as the agent, employee or legal representative of the other for any purpose, nor shall this Agreement be deemed to establish a joint venture or partnership between Andela and Client or to create any relationship between the parties hereto other than that of independent contracting parties.
17. Limited Duties
To the extent that Andela, through rendering Services to Client, is obligated to have a fiduciary or other similar duty to Client beyond the specific covenants and agreements set forth in this Agreement, such fiduciary or other similar duties must be expressly set forth and referenced in the applicable SOW. Absent express language creating a fiduciary relationship, nothing in this Agreement (or otherwise arising from the delivery or receipt of goods or services) shall operate or be construed to operate to create any fiduciary duties owed by Andela.
18. Excusable Delay
Neither Party will be liable for any failure to perform any obligation (other than payment obligations) due to causes beyond such Party’s reasonable control, including the elements, acts of God, labor disputes, acts of the public enemy and/or terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power systems, sabotage, armed hostilities and riots. Notwithstanding the foregoing, in every case the delay or failure to perform must be beyond the control and without the fault or negligence of the Party claiming excusable delay. Performance times under this Agreement shall be considered extended for a period of time equivalent to the time lost because of any delay which is excusable hereunder; provided, however, that, if any such delay shall, in the aggregate, last for a period of more than sixty (60) days, the Party not relying on the excusable delay, at its option, may terminate the applicable SOW.
19. Data Processing Agreement
- GDPR. If Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”), ”), and the e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC), their national implementations in the European Economic Area (“EEA”), and all other data protection laws of the EEA including laws of the European Union, the United Kingdom and Switzerland, as may be amended or replaced from time to time are applicable to the Services provided by Andela, then the terms found at https://andela.com/dpa (which may be updated from time to time) shall be incorporated herein. For the purposes of GDPR, Client shall be considered the “Controller” and Andela shall be considered the “Processor”.
- CCPA. The Parties acknowledge and agree that Andela may be a service provider for the purposes of the California Consumer Privacy Act (“CCPA”) and may receive personal information from Client pursuant to this Agreement for a business purpose. Andela shall not sell any such personal information. Andela shall not retain, use or disclose any personal information provided by Client pursuant to this Agreement except as necessary for the specific purpose of performing the Services for Client pursuant to the Agreement, or otherwise as set forth in this Agreement or as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. Andela certifies that it understands the restrictions of this Section 19(b).
- HIPAA. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and if Andela is a Business Associate of Covered Entity under the HIPAA Privacy Regulations, the HIPAA Security Regulations and the HITECH Standards, then the parties may agree and enter into a separate Business Associate Agreement the terms of which shall be incorporated by reference herein.
20. Entire Agreement
This Agreement contains the entire agreement of the Parties and supersedes all prior written or verbal agreements, if any and of whatsoever sort or type, including, but not limited to, all prior discussions between the Parties with respect to the subject matter hereof. The terms and conditions of any and all exhibits, schedules, attachments, and contemporaneous or future agreed SOWs are incorporated herein by reference, and shall constitute indivisible parts of this Agreement as if fully set forth herein today.
If any one or more of the provisions (or portions thereof) of this Agreement shall for any reason be held by a final determination of a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions (or portions of the provisions) of this Agreement, and the invalid, illegal, or unenforceable provision shall be deemed replaced by a provision that is valid, legal, and enforceable and that comes closest to expressing the intention of the Parties.
22. Amendments, Modifications
No modification, amendment, supplement to or waiver of this Agreement or any of its provisions shall be binding upon the Parties hereto unless made in writing and duly signed by both Parties. A failure or delay of either Party to this Agreement to enforce at any time any of the provisions of this Agreement, or to exercise any option which is herein provided, or to require at any time performance of any of the provisions hereof, shall never be construed to be a waiver of such provision of this Agreement and shall not excuse the other Party’s performance of such, nor affect any rights at a later time to enforce the provision.
Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent (which may be withheld or conditioned), except to any affiliate, or in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or similar transaction, provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement and all SOWs. Subject to the foregoing, this Agreement will be binding on and enforceable by the Parties and their respective successors and permitted assigns. Consent by either Party to assignment in one instance shall not constitute consent by such Party to any other assignment.
24. Governing Law and Jurisdiction, Fees, Costs
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to conflict of laws provisions. Any dispute, claim or controversy arising out of or related to this Agreement shall be resolved in the federal or state courts sitting in New York County, New York. In any proceeding relating to a dispute arising out of or relating to this Agreement, the prevailing Party shall be entitled to an award of reasonable legal fees and costs (e.g. the “English Rule” is adopted).
All notices and other communications required or permitted under this Agreement shall be deemed to have been duly given and made upon actual receipt if in writing and if served (i) by personal delivery to the Party for whom intended (which shall include delivery by FedEx or similar service, without requirement for signature upon delivery), (ii) by postage prepaid, certified or registered mail, return receipt requested, in the United States mail, or (iii) by email to such relevant address for such Party, with confirmation back of delivery, and in each case bearing the then address of record for, or such other address as may be designated hereafter by, such Party.
Each Party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction suggesting or requiring ambiguities is resolved against the drafting Party shall not apply in the interpretation of this Agreement.
This Agreement may be executed by electronic signature, and in counterparts, each of which shall be deemed to be an original, but all such counterparts shall constitute one and a single instrument.