Master Services Agreement
Revised: September 12, 2018
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. AGREEMENTS AND ACKNOWLEDGMENTS
2.1 LaunchSource agrees and acknowledges that:
2.2 Client agrees and acknowledges that:
3. Hosting; Availability of Software; Data Integrity
4. Terms of Service
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.
5. INTELLECTUAL PROPERTY RIGHTS & OWNERSHIP
5.1 No Rights in Intellectual Property:
6. FEES, TERM AND TERMINATION
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:
8. LIMITATION OF LIABILITY AND WARRANTY
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:
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.