Master Services Agreement

You accept this Master Services Agreement (the “MSA”) by either executing a Contingency Sales Order (“Order”) that references these terms (collectively the Order and MSA will be referred to as the “Agreement”) or by accessing LaunchSource’s Membership SaaS Platform and/or any additional LaunchSource services offering. These terms govern the specified services (the “Services”) offered by LaunchSource to Client in accordance with an Order(s) (the “Order”) or other agreements between the parties (which shall also contain fee and payment provisions). Together, this MSA and the order or other agreements between the parties form the full and complete agreement for Services between the parties (the “Agreement”). This MSA governs the use of the specific LaunchSource Services described in the Order or Orders entered into between the parties. In the event of a conflict between this MSA and an Order, the Order shall prevail, if such Order specifically excepts certain provisions in this MSA.

In this Agreement, the following capitalized terms shall have the following meanings:

“Client” or “You” means the Client entity identified above for which LaunchSource is rendering the Services described in the Order;

“Intellectual Property Rights” means patents, trademarks, service marks, registered designs, applications for the foregoing, copyright and design rights, know-how, confidential information, trade and business names and any other similar protected rights in any country;

“Services” means the services rendered or to be rendered by LaunchSource to Client, including, where applicable, providing Client access to the LaunchSource Membership platform, as more specifically described in an Order for Services.

“Independent Contractor” The parties intend to act and perform as independent contractors and the provisions hereof are not intended to create any partnership, joint venture, agency or employment relationship between the parties or between a party and the employees, agents or independent contractors of the other party.

2.1 LaunchSource agrees and acknowledges that:

1. LaunchSource will perform the Services with reasonable commercial care and shall perform the Services as described in an Order to the best of its ability and in a timely manner.
2. LaunchSource grants Client a non-exclusive license (the “License”) for the purchased term to use the LaunchSource platform and Services for Client’s internal business purposes.
3. Parties shall comply with confidentiality obligations and restrictions as set out in Section 4 of this MSA with respect to any information or data that may be deemed confidential.
4. LaunchSource shall be excused from its performance of any obligations under this provision which are prevented or interfered with due to Force Majeure events as set forth in Section 9.7 below.

2.2 Client agrees and acknowledges that:

1. Unless stated otherwise in an Order, Client shall not redistribute, re-market, sell, resell or relicense any of LaunchSource’s Services, to any third parties.
2. Client agrees not to reverse engineer nor make derivative works from LaunchSource Services/Offerings.
3. Client shall not set up or share any user ID’s, passwords or LaunchSource Data or Services with other persons.
4. License of Software. LaunchSource hereby grants Client a limited rite to use and access the Software via the Internet as set forth in Section 6 herein below, subject to the terms of this Agreement. Client shall be granted credentialed access to the Software as further set forth on Exhibit A.

• Hosting. LaunchSource shall host the Software on its computer servers or on servers hosted by third parties, and make the Software available to Client via the Internet.
• Availability of the Software. Client acknowledges that access to the Software may be affected by certain mandatory actions by LaunchSource, or by events beyond the control of LaunchSource, including: (i) malfunction or failure of computer hardware or software; (ii) periodic maintenance procedures or repairs which LaunchSource may undertake from time-to-time; or (iii) causes beyond the control of LaunchSource or which are not reasonably foreseeable by LaunchSource, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures.
• Updates. LaunchSource shall provide, at no additional charge, updates, enhancements, bug fixes and other upgrades to the Software as they become commercially available.

1. a) Client will not access or use the Site and the Services to collect any market research for a competing businesses
2. b) Client will not “stalk” or otherwise harass another user of the Site and/or Services or any other person;
3. c) Client will not impersonate any person or entity or falsely state or otherwise misrepresent its affiliation with a person or entity
4. d) LaunchSource reserves the right, in its sole and absolute discretion, to deny Client (or any device) access to the Site and/or the Services, or any portion of the Site and/or the Services, without notice.
5. e) Client will not disclose the names and identities of any Candidates listed on the LaunchSource platform outside of Client company.

Client will not attempt to circumvent Services by independently attempting to communicate and hire any of the Candidates through alternative means after discovering such Candidates through Services.

1. f) If Client does independently first communicate with and hire candidates that it first discovered on the LaunchSource Platform, LaunchSource shall have the right to charge Client a fee equal to 25% of the candidate’s first year salary, due and payable upon receipt.
2. g) Client agrees to notify LaunchSource within 48 hours of a candidate’s acceptance of an offer of employment.

5.1 No Rights in Intellectual Property:

1. This Agreement does not create, and Client shall have no rights in or to the use of, any trademark, trade name, logo, service mark or other mark, identification or name of LaunchSource or any Intellectual Property Right of LaunchSource.

1. Client shall promptly notify LaunchSource of any known infringement or improper use of LaunchSource’s Intellectual Property Rights. You agree to reasonably cooperate with LaunchSource in any action taken by LaunchSource against such third parties, provided that all expenses of such action shall be borne by LaunchSource and all damages which may be awarded or agreed upon in settlement of such action shall accrue to LaunchSource.

1. LaunchSource shall promptly notify Client of any known infringement or improper use of Client’s Intellectual Property Rights. LaunchSource agrees to reasonably cooperate with Client in any action taken by Client against such third parties, provided that all expenses of such action shall be borne by Client and all damages which may be awarded or agreed upon in settlement of such action shall accrue to Client.
2. LaunchSource Services are  proprietary to LaunchSource  and may include copyrighted works, trade secrets, or other materials created by LaunchSource at great effort and expense.  Client will not contest the validity of LaunchSource ’s rights in or ownership of these Services in any way.  LaunchSource products and services are proprietary to and controlled by LaunchSource. If products or services are licensed to Client as part of the Order, Client is granted a non-exclusive, limited right to use such Services, which shall only be used for Client’s internal business use.
3. e. Other than with respect to the limited subscription granted herein, all right, title and interest in and to the Software, including all rights under the patent, copyright and trademark laws of the United States (“Intellectual Property Rights”) shall remain solely in LaunchSource. Client acknowledges that the Software is confidential and proprietary to LaunchSource and Client shall not disclose the Software to or permit access to the Software to any third party including, without limitation, any person, client, organization, governmental agency, non-profit organization, or other entity, or the employees or agents thereof, whether on a for-profit, loan, gratuitous, temporary, or other basis, whether through consulting, training, or other services provided by Client, or in any other manner. Upon termination of the Agreement, but without limitation of the obligations of fees as defined in 3c, LaunchSource will terminate Client’s access to the Software and Client will have no further right or license thereto.

6.1 Fees:

Client shall pay LaunchSource fees for the Services as set forth in the Order and in accordance with payment terms set forth therein. Client shall be responsible for payment of all applicable federal, state and local taxes arising from or related to the Services rendered hereunder and any related penalties and interest associated with such taxes. LaunchSource reserves the right to charge 3% interest per month on late payments. All payments shall be made in U.S. dollars, drawn on a U.S. bank. LaunchSource shall be entitled to recover all costs of collection, including reasonable attorneys’ fees and costs of suit; and LaunchSource shall be entitled to suspend, or upon further written notice to Client, and to terminate Client’s access to the Software.

6.2 Term and Termination:

1. This MSA shall become effective on the Effective Date when an Order is placed and continue until the earlier of (i) twelve (12) months past the date of termination or expiration of an Order entered into by the parties, or (ii) until cancelled by either party upon 30 day prior written notice to the other party. An Order shall set out the term of the Services and such Order shall terminate upon the completion of the Services by LaunchSource.   If any Order is still in effect at the time of termination or expiration of the MSA, the MSA shall remain in full force and effect according to its terms until completion of such Order.
2. Either party may terminate an Order and/or the MSA on 30 Day written notice to the other party in the event of a material breach (including non-payment) of the Order and/or MSA by the other party that is not cured within thirty (30) days of written notice thereof from the other party.
3. The MSA and/or Order currently in effect may be terminated immediately by one party in the case of a dissolution, termination of existence or insolvency of a party, appointment of a receiver, or the voluntary or involuntary commencement of any other proceedings under bankruptcy or insolvency laws of the other party.
4. Upon termination or expiration of an Order, Client’s access will be terminated and Client will no longer have access to the LaunchSource platform or services licensed via an Order. All provisions of the MSA which by their nature are reasonably intended to survive the termination of the MSA shall survive such termination. Upon the termination or expiration of this Agreement for any reason, LaunchSource shall have the right to terminate Client’s access to the Software and shall be entitled to payment of all outstanding Fees.

7.1 Confidentiality:

1. The parties each acknowledge that the other party treats its products, development processes, business methods, business information, client data, and prices as confidential to the extent permitted by the laws applicable to this Agreement and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party, regardless of whether they may be copyrighted, patented or trademarked.
2. During the Term, each party will learn or receive information about the other party which the other party treats as confidential, including but not limited to all business, marketing, financial and customer-related data (“Confidential Information”), as well as product related information and information pertaining to the Client’s Agreement with LaunchSource.  Each party agrees that Confidential Information received from the other party shall be treated as confidential and protected in the same manner as the receiving party treats its own confidential information, but with no less than reasonable care.  Each party agrees not to transfer, distribute or disclose to any third party any Confidential Information of the other party, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement, and who are under an obligation to keep such information confidential.  Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving party hereunder, (ii) was already rightfully in the possession of the receiving party when received by the disclosing party, or (iii) was developed independently by the receiving party by individuals without access to the disclosing party’s information.  In addition, Confidential Information may be disclosed if it is required to be disclosed pursuant to an order of a court or governmental agency, provided that the receiving party shall first notify the disclosing party and afford the disclosing party the opportunity to seek a protective order relating to such disclosure.
3. The obligations of the parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law.  All other Confidential Information shall remain protected during the Term and for three (3) years thereafter.  Notwithstanding the foregoing, the LaunchSource Data shall remain the intellectual property of LaunchSource and any expiration of Confidential Information hereby shall not transfer any rights relating to the LaunchSource Data to Client.

IN NO EVENT SHALL EITHER PARTY, THEIR EMPLOYEES, AGENTS, OFFICERS, DIRECTORS OR LAUNCHSOURCE’S THIRD PARTY PROVIDERS BE LIABLE IN ANY WAY WHATSOEVER UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE SERVICES TO THE OTHER PARTY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR BUSINESS REVENUE, LOST BUSINESS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER REGARDLESS OF WHETHER SUCH COSTS, LOSSES OR DAMAGES ARE/WERE FORESEEABLE OR SUCH PARTY, ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS, LOSSES OR DAMAGES.

THE MAXIMUM LIABILITY OF EITHER PARTY FOR ALL DIRECT DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID DIRECTLY TO LAUNCHSOURCE BY CLIENT, FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE CLAIM AROSE IN CONTRACT INCLUDING A FUNDAMENTAL BREACH, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR UNDER STATUTE.

Notwithstanding anything to the contrary, the exclusions and limitations set forth in shall not apply with respect to: (i) the parties’ respective obligations under Section 9 (Indemnification), or (ii) breach of Section(s) 2.1(b), 4 or 5.1(e).

LIMITATION OF WARRANTIES. LaunchSource warrants that:

(i) the execution, delivery and performance of this Agreement by LaunchSource will not conflict with, breach, or cause a default under, any contract with any third party; and

(ii) it has the right to grant the license to the Software as set forth herein.

OTHER THAN THE WARRANTIES SET FORTH HEREIN, THE LICENSED MATERIALS ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER AND THE COMPANY HEREBY DISCLAIMS ANY AND ALL IMPLIED OR EXPRESS WARRANTIES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.

10. LaunchSource agrees to indemnify, defend and hold Client, its officers, directors, employees, agents and representatives harmless from and against any and all third party claims, damages, losses, costs (including reasonable attorneys’ fees), or other expenses that arise out of or from (a) a breach of its confidentiality obligations under this Agreement; (b) an infringement of the Intellectual Property Rights of a third party; (c) a breach of the limited warranties set forth in Section 6, provided that LaunchSource is notified promptly by Client of any such claims. LaunchSource shall have sole control over the defense of any such claims. All settlements must be agreed to by Client. If a judgment is obtained against Client’s use of the LaunchSource Services, or if LaunchSource reasonably believes that there is a likelihood of a claim of infringement of Intellectual Property Rights, LaunchSource shall, at LaunchSource’s option and expense, modify or substitute the affected LaunchSource Services (but provide Client with substantially the same equivalent); obtain the right to continued use; or in the event that the claim of infringement relates to the LaunchSource Services and none of the foregoing are reasonably available on commercial terms, LaunchSource may terminate the Client’s right to use the LaunchSource Services at issue and take back the affected LaunchSource Services. In the event of such termination, LaunchSource will refund any fees pre-paid by Client hereunder for the period that LaunchSource cannot provide access to the LaunchSource Data or Services.

11. Client agrees to indemnify, defend and hold LaunchSource its officers, directors, employees, agents and representatives harmless from and against any and all third party claims, damages, losses, costs (including reasonable attorneys’ fees), or other expenses that arise out of or from (a) a breach of the use restrictions in Section 2 of this Agreement; b) an infringement of the Intellectual Property Rights of a third party caused by Client, provided that Client is notified promptly by LaunchSource of any such claims. All settlements must be agreed to by LaunchSource.

10.1 Assignment: Except as otherwise provided herein, neither party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other party, such consent not to be unreasonably withheld. Any prohibited assignment shall be null and void. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement to a parent, an affiliate, division, subsidiary or an entity, which acquires all or substantially all of that party’s business, which is related to this Agreement. This Agreement is binding on the parties’ respective successors and permitted assigns. LaunchSource reserves the right to terminate this Agreement if Client assigns this Agreement to a direct competitor of LaunchSource (which determination shall be in LaunchSource’s sole discretion).

10.2 Governing Law: The laws of the State of Massachusetts (without giving effect to its conflicts of law principles) govern all matters, including tort claims, arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

10.3 Severability: The provisions of this Agreement shall be deemed severable. If any provision or any part thereof is, for any reason, held to be invalid or unenforceable in any respect under the laws of any jurisdiction where enforcement is sought, such invalidity or unenforceability will not affect any other provision of this Agreement and this Agreement will be construed as if such invalid or unenforceable provision or part thereof had not been contained therein.

10.4 Amendments: This Agreement may be modified or amended by written Agreement of the parties only.

10.5 Notices: Unless otherwise specified, all notices and other communications provided for under this Agreement shall be in writing (including e-mail, facsimile or similar electronic communication) and mailed, hand-delivered or electronically transferred:

To LaunchSource:

LaunchSource, Inc.

31 St. James Avenue

Boston, MA 02116

Attention: John Harvey, Co-Founder

10.6 Waivers: Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, or a waiver of any other, different or subsequent breach. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof.

10.7 Force Majeure: LaunchSource shall not be held liable for inadequate performance to the extent caused by acts or conditions beyond the reasonable control of LaunchSource, including but not limited to acts of nature, war, acts of terrorism, riots, strikes or labor disputes, embargoes, government orders, internet disturbances or any other force majeure event.

10.8 Entire Agreement; Governing Terms: This Agreement constitutes the entire agreement between the parties hereto with respect to the Services agreed to by the parties in the Order(s), and cancels and supersedes any prior understanding and agreements between the parties relating thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied, statutory or otherwise between the parties, except as expressly set forth in this Agreement.