This ATB Technologies, LLC (“ATB”) Master Services Agreement (“MSA”), is entered into by and between ATB Technologies, LLC, a Missouri limited liability company (herein referred to as “ATB”, “we”, “us” and/or “our”) and ATB’s Client referenced in any related Scope of Work, Managed Services Agreement or similar ancillary documents (said party is herein referred to as “Client”, “you” and/or “your”, and said documents are hereinafter collectively referred to as “Statement(s) of Work” or “SOW(s)”). The parties hereto understand and agree that this Agreement and said related Statements of Work are hereby adopted and incorporated by reference into each other as if fully set forth herein and therein, and all are collectively referred to as the “Agreement”. This Agreement shall apply to Client’s purchase of Services (as defined below) as set forth in applicable Statements of Work. If any additional or different terms are proposed by Client while accepting Scope of Work and this Agreement, including strikeouts of language, such additional or different terms will be considered as a proposal by Client for a modification of the Agreement and will be effective only if expressly accepted in a separate writing by ATB. ATB’s performance of any Services as modified by Client shall not constitute acceptance of such additional or different terms, unless affirmatively agreed to in writing as set forth herein.
- BASIC TERMS
- a. SERVICES PROVIDED / STATEMENTS OF WORK: ATB will provide certain IT consulting services (the “Services”) for ATB Technologies (“Client”) in accordance with this signed Agreement and any one or more Scope of Work addendums executed by both ATB and Client from time to time, which are incorporated into this Agreement by reference (each a “Scope of Work”). Each new project for Client will require a new fully executed Scope of Work. Each Scope of Work will detail the services to be provided, ATBʼs estimated time to complete the services, any applicable timing goals or deadlines and the hourly billing rates or other fees payable by Client to ATB for the services. Upon the request of Client and approval by ATB, ATB will recommend and purchase on behalf of Client third party computer hardware and software for use by Client. Any custom ordered hardware and software shall not be returnable to ATB by Client.
- b. MASTER AGREEMENT: This Agreement shall serve as a master agreement between the parties and is intended to govern the partiesʼ relationship at all times ATB is providing Services for Client, and this MSA may be supplemented and/or modified only by one or more Statements of Work signed by ATB and Client. This MSA shall remain in effect indefinitely until terminated by either party as set forth in this Agreement. A non-defaulting party may terminate this Agreement by written notice to the other party if the other party is in material default of its obligations under this Agreement and has failed to cure such default within thirty (30) days after receiving written notice from the non-defaulting party specifying the default. Notwithstanding, a termination of this Agreement and any Scope of Work shall not (a) relieve Clientʼs obligation to pay ATB for all Services rendered prior to the effective date of termination and all third party hardware and software ordered or purchased by ATB on behalf of Client prior to the effective date of termination, or (b) entitle Client to any refund of any monies paid to ATB prior to termination (other than any pre-paid amounts for Services not rendered prior to the effective date of termination). At any time that ATB has the right to terminate this Agreement based on a non-cured default by Client, ATB shall have the right to instead suspend its performance of Services for Client until such time as Client cures the default in question. Any election by ATB not to exercise its remedy to terminate this Agreement or discontinue performing Services as a result of one default by Client shall in no way waive ATBʼs right to exercise such remedy for any future default. After the Services agreed upon in any given Scope of Work are completed by ATB and fully paid for by Client, neither party shall be obligated to contract for any additional Services unless and until a new Scope of Work is executed by both ATB and Client and the term of said new Scope of Work shall govern. Notwithstanding any other provision of this Agreement, at any time that the parties are engaged under any Scope of Work, then the provisions of this Agreement shall apply to said Scope of Work and its engagement.
- c. ESTIMATED HOURS: Each Scope of Work shall contain ATBʼs best-effort estimate of the time required to perform specific Services. These estimates are based on facts presented to ATB in advance in relation to previous, similar experiences by ATB and assume reliable service from internet service and utility providers. However, since no two engagements are exactly alike, it is not possible to precisely determine the time required for completing the agreed upon Services. This is particularly true in the case of trouble-shooting since the nature of that task may include eliminating an unknown number of potential problems until the cause unique to each situation is identified and resolved. Each Scope of Work shall be based on ATBʼs estimate of hours needed to perform the Services and the hours stated are not to be construed as fixed. Should ATB encounter any unforeseen problems which will warrant additional time or expense, ATB will notify Client of the situation and, if possible, the added cost. If ATB is required to incur more or less time than the number of hours identified on the Scope of Work for the specified Services, Client shall pay ATB for all billable hours actually incurred at the rate set forth in the Scope of Work. Each Scope of Work will be reviewed on a regular basis and will be refined as the project proceeds. Any changes to the nature or amount of Services to be provided under any Scope of Work must be mutually agreed upon in writing by ATB and Client in the form of an addendum to the applicable Scope of Work. ATB will proceed only on approved changes to any Scope of Work, as set forth in the applicable addendum.
- d. BILLING & INVOICES: Client shall pay ATB for all Services rendered (including telephone support and in-town travel time to Clientʼs location, but not round trip return travel) on an hourly basis at the billing rate specified in the Scope of Work. ATB bills in 15 minute increments for Services provided. ATB will submit to Client an invoice statement of Services rendered twice a month. Unless otherwise agreed upon in a Scope of Work, Client shall be required to pay a down payment of 50% of the total price for any hardware or software that ATB purchases on behalf of Client prior to ATB ordering the hardware or software. ATB will invoice Client for the balance after hardware and/or software has been delivered to Client. The terms for payment on all invoices from ATB are net thirty (30) days. Notwithstanding the payment terms of any invoice, Client shall be in default under this Agreement if Client fails to pay any invoice within thirty (30) days after receipt of such invoice.
- e. EXPENSES: Client shall reimburse ATB for all reasonable out-of-pocket costs incurred in providing Services for Client, including telecommunications charges, freight, shipping, mailing, copying, and other similar costs; and upon mutual agreement, Client will reimburse ATB for all out-of-town travel expenses, such as automobile/airline travel, hotel, meals, and cab fare, if applicable.
- f. CLIENTʼS RESPONSIBILITIES: Client shall be responsible for: (i) Clientʼs final purchase of computer hardware and software, though ATB can assist Client in determining compatibility and in resolving errors or problems, as part of the Services subject to this Agreement; (ii) all hardware and software warranties, guarantees, and manufacturer services which will be between Client and the manufacturer(s) and not ATB, even though ATB may be the reseller; (iii) complying with all state, federal and local laws governing the use and distribution of software; and (iv) the application, operation and management of its computer environment, including but not limited to: (a) following appropriate operating processes; (b) following appropriate protective measures to safeguard the software and data from unauthorized duplication, modification, destruction or disclosure; (c) following adequate data backup contingency plans; and (d) scanning drives/diskettes periodically for viruses and other malware.
- g. SOFTWARE UPGRADES: New third party software releases or upgrades, or any hardware and/or software belonging to Client or licensed to Client by a third party, used for the performance of the Services by ATB may have anomalies or performance issues unknown to ATB which can impact the timely, successful implementation of information systems and/or delay the performance of the Services generally. ATB will inform the Client promptly if this occurs and will use commercially reasonable efforts to analyze, correct and/or work around the anomalies or performance issues while performing the Services. ATB shall not be responsible for any delays in completing the Services if such anomalies or performance issues occur, and any increase in the time required of ATB to complete the Services shall be billable to Client at the rate for Services stated in the applicable Scope of Work.
- h. LICENSE: Client understands and agrees that except as otherwise agreed to in writing by the parties, under this Agreement, Client is acquiring a non-exclusive, non-assignable license to use any software, programs, systems, processes, manuals, documentation, and/or other works created by ATB and provided to Client (collectively “Works”) under this Agreement. Client may copy, reproduce, modify and/or otherwise alter any Works for its own use but may not sell, assign, transfer or commercialize any Works without the prior written consent of ATB. Further, Client understands and agrees that its rights and obligations are subject to any and all applicable agreements with other parties, such as third party hardware and software vendors.
- WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
- a. NO WARRANTIES ON THIRD PARTY HARDWARE OR SOFTWARE: Client agrees and acknowledges that ATBʼs recommendations of third party hardware and software are based on ATBʼs best judgment as to the match of the Clientʼs needs and hardware and software capabilities. ATB makes no express or implied warranties as to the quality of third party hardware or software, and ATB shall not be responsible for any malfunction or failure of any third party hardware or software at any time.
- b. ATBʼS WARRANTY: ATB warrants that (i) it will perform the Services in a professional and workmanlike manner using sound principles, accepted industry practices, and sufficiently competent personnel in its performance of Services hereunder, and (ii) no Work produced by ATB under this Agreement or any Scope of Work shall infringe the intellectual property or other rights of any third party. EXCEPT FOR THIS EXPRESS WARRANTY, ATB MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE TO BE IMPLEMENTED UNDER THIS Agreement OR ANY HARDWARE PURCHASED BY CLIENT AS CONTEMPLATED HEREIN. ATB EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES, ANY SUCH SOFTWARE OR ANY SUCH HARDWARE.
- c. LIMITATION OF LIABILITY: NEITHER PARTY SHALL NOT BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTRRUPTION OF BUSINESS, OR ANT INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT, ANY SCOPE OF WORK OR OTHERWISE. IN PARTICULAR, ATB ASSUMES NO LIABILITIES FOR THE RESULTS OF CLIENT BASED ON CLIENTʼS USE OF ANY SOFTWARE AND/OR SERVICES FURNISHED BY ATB or ANY HARDWARE OR SOFTWARE PURCHASED BY CLIENT AS CONTEMPLATED HEREIN. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE PARTIES AGREE THAT IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE OTHER PARTY’S ACTUAL, DIRECT DAMAGES, NOT TO EXCEED AN AMOUNT EQUAL TO THE FEE RECIEVED BY ATB FROM CLIENT HEREUNDER WITHIN THE PREVIOUS 18-MONTH PERIOD. NO ACTION, REGARDLESS OF FORM OR SUBSTANCE, ARISING OUT OF ANY CLAIMED BREACH OR DEFAULT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
- d. INDEMNIFICATION: ATB shall indemnify, defend, and hold Client and its directors, officers, employees, agents, and affiliated companies harmless from and against all claims, losses, damages, liabilities, expenses and costs (including reasonable attorneysʼ fees) that may at any time be incurred by any of them arising out of or relating to (i) any negligence or willful misconduct of ATB, its agents, employees, subcontractors, or representatives, and/or (ii) the infringement by the Work of any third party rights; provided that (1) Client notifies ATB promptly in writing of the claim of infringement, (2) ATB has sole control over the defense or settlement, and (3) Client reasonably cooperates with ATB with respect to the claim, providing all documents and information in Clientʼs possession relevant to the infringement claim, and Client makes personnel available to testify or consult with ATB, at ATBʼs expense, as ATB may reasonably request. If Client becomes, or in ATB’s reasonable opinion is likely to become subject to an infringement claim, ATB may, at its option and expense, (a) acquire the right for Client to continue using the Work, (b) replace or modify the Work or create a workaround so that the Work is functionally equivalent and non-infringing, or (c) terminate Clientʼs access and license for the Work and give Client a refund for any fees paid by Client for the infringing part of the Work, less a reasonable allowance for the time Client used the infringing Work. Except for the indemnification obligations expressly set forth in this Section and the warranty obligations in Section 2(b), Client hereby releases and agrees to hold ATB, its members, managers, officers, successors, assigns and agents harmless from and against all other claims, losses, damages, liabilities, expenses and costs (including attorneyʼs fees) incurred by Client resulting from or arising out of the use, or inability to use, ATBʼs Services provided under this Agreement.
- GENERAL PROVISIONS
- a. NON-SOLICITATION: Client acknowledges and understands that ATB has spent substantial sums of money and invested large amounts of time in recruiting, supervising, and training the personnel that shall perform the Services for Client hereunder, and that replacing such personnel would cost the Company substantial, but incalculable time and resources. Client agrees that during the term of this Agreement and for a period of one (1) year after this Agreement is no longer in effect, Client will not directly or indirectly solicit or induce any person who was an employee of ATB at any time during the term of this Agreement to leave employment or cease rendering services on behalf of ATB for any reason, except where the Client has obtained prior express written permission from ATB. Both parties agree that such actions by the Client directly and/or indirectly damage ATB and that such damages will be impossible to calculate. In liquidation of such damages, the Client agrees to pay the sum of $100,000 to ATB within 30 days of the Clientʼs hiring date of such employee(s) for each employee so hired, which is the partiesʼ good faith estimate of the damages to be incurred by ATB and not a penalty.
- b. NO LIMITATION ON ATB: This Agreement shall not preclude ATB from developing for itself, or for other clients or third parties, materials or Works which are similar to those produced as a result of Services provided to Client. Notwithstanding the preceding sentence, ATB shall not use Clientʼs Confidential Information (defined below) to produce such materials or Works.
- c. CONFIDENTIALITY: ATB acknowledges that in order to perform the Services called for in this Agreement, ATB may have access to or otherwise receive certain Confidential Information. ATB agrees not to use or disclose any Confidential Information except as reasonably necessary to perform the Services unless Client consents in writing. ATB understands that this obligation remains even after termination of this Agreement. As used herein, “Confidential Information” means all non-public information, data, reports, analyses, compilations, records, notes, summaries, discussions, studies, graphs, designs, photographs, drawings, and other materials (in whatever form or media) containing or reflecting information relating to Client or its business, and any other information which is marked or expressly designated as “Confidential” by Client, or by reason of its nature would reasonably be concluded to be of a confidential nature. All Confidential Information shall be returned by ATB to Client immediately upon completion of the Services or termination of this Agreement. Notwithstanding the foregoing, ATB may disclose information about Client’s use of Services to satisfy any law, regulation, government agency request, court order, search warrant, subpoena or other legal process.
- d. ATTORNEYʼS FEES: Upon default or breach of any of the provisions of this Agreement, the party in default or breach shall be required to pay court costs, expenses and attorney’s fees incurred by the prevailing party in enforcing and/or defending the rights hereunder, in addition to any other recovery to which the prevailing party may be entitled.
- e. FORCE MAJEURE. Neither Party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, supply chain disruptions, fires, storms, pandemics, acts of God, acts of war or insurrection and/or compliance with any regulations, order, or requirement of any governmental body or agency.
- f. DISPUTE RESOLUTION. The parties hereto hereby agree that any and all disputes arising out of or relating to this Agreement, and/or the performance of the parties of any obligations hereunder, (collectively, the “Disputes” and singularly, a “Dispute”) shall be resolved as follows (collectively, the “Dispute Resolution Mechanism”):
- Meet and Confer. Upon written notice of the existence of a Dispute by either party, the parties shall meet and confer in an attempt to reach an agreeable resolution of the Dispute by mutual consent. The notice shall contain sufficient information and factual detail to allow the parties to understand the nature of the claim(s).
Mediation. In the event the parties are unable to resolve the Dispute through meeting and conferring, all Disputes shall be subject to Mediation as a condition precedent to the institution of legal or equitable proceedings by either party. A written request for mediation shall be served upon the parties hereto, describing the nature of the Disputes with sufficient factual detail to allow the parties to understand the nature of the claim(s), and specifically requesting that such Disputes thereafter proceed to mediation. The parties shall thereafter confer in an attempt to select an agreeable mediator by mutual consent, and in the absence of such mutual consent, the mediator shall be chosen by United States Arbitration and Mediation, Inc. of St. Louis, Missouri. Seller and Purchaser shall share the costs of mediation and all fees associated therewith equally. Any agreement reached at mediation shall be an enforceable settlement agreement.
Institution of Legal Proceedings. In the event the Parties are unable to resolve the Disputes at mediation, either party may institute legal or equitable proceedings against the other party in accordance with the remedies available to such party in law or equity. Notwithstanding any other terms herein, nothing in this Agreement shall preclude either party from filing a request with a court of competent jurisdiction for equitable relief, including, but not limited to injunctive relief, pending resolution of any dispute through the mediation and arbitration procedure set forth herein. Subject to the terms herein, the parties hereto consent to the venue and jurisdiction of the Circuit Court of St. Louis County, State of Missouri and the United States District Court for the Eastern District of Missouri.
JURY TRIAL WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY OR ANY OTHER PARTY RELATING TO THE DISPUTE. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY PURSUANT TO ANY APPLICABLE STATE STATUTES.
- g. MISCELLANEOUS: This Agreement shall be governed by, and construed in accordance with, the laws of the State of Missouri without regard to any conflicts of law rules. This Agreement, and the Statements of Work referenced herein, contains the entire agreement between the parties and supersedes any and all previous written or oral negotiations, commitments, transactions or understandings between the parties. This Agreement may not be amended, supplemented, or otherwise modified except by a written amendment signed by all affected parties. ATB may assign this Agreement in whole or in part without the prior written consent of Client. This Agreement shall inure to the benefit of and be binding upon the affiliates, successors and permitted assigns of the parties. This Agreement may be executed in one or more counterparts, via facsimile or other form of electronic transmission, all of which together shall constitute one and the same binding instrument. ATB reserves the right to utilize subcontractors to provide the services in its reasonable discretion. In the event of a conflict between the terms of a Scope of Work and this Agreement, then the terms of the specific Scope of Work shall govern. This Agreement may be executed in one or more counterparts, each of which shall be considered an original instrument, but all of which shall be considered one and the same agreement. Each party hereto agrees that any electronic signature of a party to this agreement or any electronic signature to a document contemplated hereby is intended to authenticate such writing and shall be as valid, and have the same force and effect, as a manual signature.
END OF MASTER SERVICES AGREEMENT. Revised 4/20/2023.