master services agreement

1.1

Textile provides marketing, design and technology services and are individually and collectively referred to as products or professional services. Customer can purchase (i) Products and Optional Products as set forth on a schedule provided by us (“Schedule”), and (ii) Professional Services using a statement of work provided by us (“SOW”). “Product” means the product listed on a Schedule and includes without limitation Software and standard professional services as required for initial Product implementation. “Optional Products” means any additional products or optional features you purchase that are described in a Schedule or subsequent Schedule. If Optional Products are purchased, Optional Products is included in the definition of Product and governed by the terms and conditions applicable to Products. “Professional Services” mean the professional services listed in a SOW. When you use the Services you may also be using Third Party Property (as defined in Section 8.2). Customer’s use of Third Party Property is subject to that third party’s license and terms of use. The Professional Services, Products and Optional Products shall be provided in a professional manner consistent with the terms and specifications as provided on the Schedule or SOW subject to Textile’s determination of completion. 

1.2

Change Order. Any changes to Professional Services that are described in a mutually executed SOW requires a change order signed by both parties which will include the agreed upon changes (“Change Order”). Customer acknowledges that such changes may result in additional fees and a change to timelines depending on the changes requested. No changes to the Professional Services described in a SOW will be made until Textile and Customer agree in writing to the Change Order. 

1.3

Software. 

1.4

When you purchase Services, the Agreement governs the Services purchased. You are deemed to have accepted the Agreement when you (i) sign a Schedule and/or SOW, and/ or (ii) use the Product or when the Professional Services you purchase begins. 

1.5

Intellectual Property. “Intellectual Property Rights” means title to and interest in intellectual and industrial property rights, including patents, mask work rights, rights in inventions (whether or not patentable or reduced to practice) and invention disclosures, copyrights, moral rights, trade secrets, trademarks, trade names, service marks, domain names, or other intellectual property or proprietary rights (including applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing). Textile and its licensors, as well as Customer and its licensors, will retain all Intellectual Property Rights in any materials, deliverables, work product, or other intellectual property that are developed or acquired by either Party or their respective licensors prior to the Effective Date or independently from this Agreement (“Background Deliverables”). Textile hereby grants to Customer and its Affiliates a fully paid-up, royalty-free, perpetual, worldwide, assignable, sublicensable, and irrevocable license to any Background Deliverables incorporated in or provided with the Deliverables for the purpose of Customer or its Affiliates enjoying or exercising its rights in the Deliverables, including in connection with enjoying or exercising its rights in any Developed Deliverables. Customer will own exclusively all Intellectual Property Rights in the Deliverables (excluding Background Deliverables) developed, in whole or in part, pursuant to a Schedule (“Developed Deliverables”). All copyrightable aspects of the Developed Deliverables will be considered “works made for hire” (as that term is used in Section 101 of the U.S. Copyright Act, as amended). Textile hereby assigns to Customer all Intellectual Property Rights that Textile may now or at any time in the future possess in the Developed Deliverables. Partial or incomplete versions of Developed Deliverables will be deemed Developed Deliverables. Without limiting Customer’s rights, Textile acknowledges and agrees that Customer is not restricted from independently developing or using goods, products, materials, or services that are similar or related to any Developed Deliverables, and Customer will exclusively own any Intellectual Property Rights arising from that independent development. Textile will provide all assistance to Customer to register, effectuate, perfect ownership in, and enforce Customer’s Intellectual Property Rights in the Developed Deliverables.

2.1

Fees for the Services will be listed in the applicable Schedule and SOW (“Fees”). Unless different payment terms apply in a Schedule or SOW, you will pay us Fees within thirty (30) days of receipt of an invoice from us. You will also reimburse Textile for reasonable travel and out-of-pocket expenses incurred in providing you with the Services. Customer shall provide us with accurate billing contact information and provide updated billing contact information if that information changes. 

2.2

Taxes. The Fees exclude applicable taxes. The invoice you receive will include the applicable sales, use, excise, value added or similar sales taxes or assessments imposed by a governmental authority for the Services you purchase from us and you will pay us those taxes along with the Fees. We will remit those taxes to the appropriate taxing authority. You will not be charged taxes based upon Textile’s income. If you are tax exempt and are not required to pay the taxes described in this section, you must provide us with a tax exemption certificate. Customer agrees to indemnify Textile for any liabilities and expenses Textile incurs as a result of Customer failure or delay in paying these taxes. 

2.3

Interest. Interest shall begin to accrue on unpaid invoices on the thirty-first (31st) day after the date of each invoice at the rate of 1.5% per month (18.0% per year) until paid in full. 

2.4

Fee Disputes. 

2.5

Suspension. If you do not pay an invoice by the due date (excluding invoices in dispute), after the thirty first (31st) day of an invoice due date Textile may suspend all work and your access to and use of the Services, (the “Suspension Period”) until you pay the applicable outstanding amounts. In the event of a suspension of Services, the Term shall, subject to any right of termination contained in the Agreement, be extended by an amount of time equal to that of the Suspension Period. You are responsible for reimbursing Textile for any reasonable collection expenses incurred by Textile in collecting overdue amounts, including reasonable attorney fees.

3.1

You shall:

4.1

You acknowledge and agree that Textile may subcontract any Services, and Textile will use commercially reasonable efforts to require such subcontractors to comply with all applicable Agreement terms. Textile shall remain liable for the performance of its subcontractors. 

5.1

Term. Unless terminated earlier as provided in Section 5.2 below, the initial term (“Initial Term”) of a Schedule or SOW and any renewal terms (“Renewal Term”) will be stated in the Schedule and SOW. The term of this Master Services Agreement begins on the Effective Date and continues in effect until terminated in writing by either party upon thirty (30) days prior written notice, provided however, if a Schedule or SOW is in effect at the time of the Master Services Agreement termination, the Master Services Agreement will not terminate until the date of expiration or termination of the last applicable Schedule or SOW. The Initial Term and Renewal Term are collectively the “Term”. This Master Services Agreement is intended to apply to all current and future projects as defined in the Schedule or SOW.

5.2

Termination. Notwithstanding anything to the contrary contained in the Master Services Agreement, a Schedule or a SOW, Textile or Customer may, in addition to any other rights and remedies Textile or Customer may have at law or in equity, immediately terminate a Schedule or SOW and the Master Services Agreement if: 

5.3

Suspension Period. In addition, Textile may, at any time during the Suspension Period, terminate this Agreement upon thirty (30) days prior written notice to Customer. 

5.4

Cancellation by Mutual Consent. A Schedule or a Statement of Work (SOW) that is cancelled by mutual written consent shall incur the following assessment:

If no work has commenced on the project, a cancellation fee may be imposed, calculated as 5% of the project price or $1500, whichever amount is greater. If work has already commenced on the project in accordance with the SOW, such work will be billed in accordance with the terms of the SOW, and the cancellation fee will not apply.

6.1

Warranty. EXCEPT AS EXPRESSLY STATED IN THE MASTER SERVICES AGREEMENT, NEITHER TEXTILE NOR ANY OF ITS THIRD PARTY PROVIDERS OR SUBCONTRACTORS GUARANTEES THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF ANY SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, TEXTILE AND ITS THIRD PARTY PROVIDERS AND SUBCONTRACTORS MAKE NO WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH TEXTILE AND ITS THIRD PARTY PROVIDERS USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE UNINTERRUPTED USE, PROTECTION OF CUSTOMER DATA AND TO SECURE THE SOFTWARE, TEXTILE AND ITS THIRD PARTY PROVIDERS DO NOT PROVIDE OR GUARANTEE ABSOLUTE SECURITY OR UNINTERRUPTED USE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE SERVICES (INCLUDING THIRD PARTY PROPERTY) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY TEXTILE, ITS AFFILIATES, CONTRACTORS OR AGENTS SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN. 

6.2

Limitation of Liability. 

7.1

By Textile.  Textile will defend, indemnify and hold Customer harmless from and against any third party liabilities, costs and expenses resulting from claims, demands, lawsuits, proceedings and investigations (collectively “Claims”) (i) for Textile’s breach of its confidentiality obligations in Section 9, and (ii) alleging that the Services infringe or misappropriate a third party’s intellectual property rights in the U.S. or Canada. Textile is not obligated to provide the aforementioned indemnity in Section 7.1(ii) if the Claim is based on or related to (1) Customer’s modification to the Services without Textile’s prior written approval; (2) combining the Services with other materials or services where such Claim would not have resulted but for such combination; (iii) Customer fails to comply with the terms and restrictions of any Third Party Property provider’s intellectual property license.

7.2

By Customer.  Customer shall indemnify, defend and hold Textile, its officers, directors, employees, agents and contractors harmless from any and all Claims which arise from or relate to (i) the Customer Property; and (ii) Customer’s breach or alleged breach of the Master Services Agreement and any related terms of any Schedule or SOW; (iii) Customer’s breach or alleged breach of any Third Party Property provider’s intellectual property license or end user agreement; (iv) Any Claims alleging the Services infringe upon or misappropriate third party intellectual property rights for Background Deliverables supplied or provided by Customer to Textile.  

7.3

Indemnity Process.  To be indemnified pursuant to Sections 7.1 and 7.2 above, the party seeking indemnification must (i) promptly notify the indemnifying party in writing about the Claim provided that failure or delay or alleged delay in providing such prompt notice shall not adversely affect the indemnified party’s right to indemnification hereunder unless and then only to the extent that such failure or delay or alleged delay has resulted in actual prejudice to the indemnifying party, including, without limitation, by the expiration of a statute of limitations, (ii) reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, (iii) give the indemnifying party sole control of the defense and settlement of the Claim, provided that the indemnifying party may not settle any Claim without the indemnified party’s prior written consent unless the settlement releases the indemnified party from all liabilities and such settlement does not place any obligation on the indemnified party, including without limitation, an obligation to change its business practice. 

7.4

NO PARTY TO THE AGREEMENT SHALL BE ENTITLED TO ANY FORM OF IMPLIED OR EQUITABLE INDEMNIFICATION AT ANY TIME, WHETHER BASED ON A THEORY OF CONTRACT, TORTS (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND ANY RIGHT THERETO IS HEREBY IRREVOCABLY WAIVED AND DISCLAIMED BY EACH OF THE PARTIES.

7.5

THIS SECTION 7 SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.  

8.1

By Textile. Textile represents and warrants: 

8.2

By Customer.  Customer represents and warrants: 

9.1

By virtue of the Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with or the Receiving Party may otherwise access or become aware of proprietary or Confidential Information relating to the Disclosing Party or its affiliates, suppliers and clients (including without limitation the identity of such clients).  During the Term and at any time after the expiration or termination of the Agreement, the Receiving Party will keep in strict confidence all Confidential Information of the Disclosing Party.  “Confidential Information” means information, materials or data obtained, shared, accessed, disclosed, used or acquired in connection with the Agreement that is marked as confidential or which by its nature ought to be in good faith considered confidential and proprietary to the Disclosing Party, including without limitation, strategies, financial information, product information, employee information, customer and client information, pricing, trade secrets, Customer Property, Textile Property, the Master Services Agreement, Schedules, and SOWs. The Confidential Information will be used for no purpose other than for the Receiving Party to exercise its rights and fulfill its obligations under the Agreement. 

9.2

Nothing in this Section 9 shall restrict the Receiving Party from disclosing Confidential Information of the Disclosing Party (1) if disclosed to its affiliates, lawyers, accountants, auditors, managers, representatives, contractors, employees and consultants who have a need to know the Confidential Information in order to fulfill the party’s obligations in the Agreement (collectively, the “Representatives”), provided that, prior to the Receiving Party disclosing Confidential Information to its Representatives (i) such Representatives are informed by the Receiving Party of the confidential nature of the Confidential Information and the obligations in this Agreement, and (ii) such Representatives are subject to written confidentiality obligations similar to the confidentiality obligations set out in the Agreement, and in all instances each party will be responsible for its Representatives’ compliance with the foregoing, or (2) to the extent required by applicable law, including without limitation requests by a regulatory or administrative authority, provided the Receiving Party provides prior written notice to the Disclosing Party to the extent practicable and permitted by law.

9.3

The Receiving Party will (i) protect the Confidential Information of the Disclosing Party from unauthorized access, use or disclosure, (ii) use at least the same degree of care it uses to protect its own Confidential Information of a like nature; and (iii) access, use and reproduce the Confidential Information of the Disclosing Party only as permitted under the Agreement.

9.4

Confidential Information excludes information which: (a) is rightfully in the Receiving Party’s possession without breach of this Section 9; (b) is or becomes generally available to the public other than as a result of a violation of this Section 9; (c) is lawfully received by the Receiving Party from a third party that the Receiving Party knows is not prohibited or limited from disclosing such information; or (d) is independently developed by the Receiving Party or its Representatives without any use of or reference to the Confidential Information.

9.5

Injunctive Relief. The parties agree that breach or threatened breach of this Section 9 by a party or its Representatives may cause immediate and irreparable injury to the other party and that, in the event of such breach or threatened breach, the injured party will be entitled to seek injunctive relief as well as any other legal remedies available without being required to post any bond or to prove any actual damages or other similar requirement required to seek injunctive relief.

9.6

Disclosure Required By Law. Notwithstanding anything to the contrary in the Agreement, Textile may disclose all or part of Customer Property if required by law.  Unless prohibited by law, Textile will provide Customer reasonable notice and an opportunity to challenge such disclosure.

10.1

Customer References. Customer grants Textile a perpetual, non-exclusive, non-sublicenseable, royalty free, worldwide license to use Customer’s trademarks, service marks, trade names, logos, or other commercial or product designations (collectively the “Marks”) as well as demonstrations or representations of any Developed Deliverable only for the purpose of marketing and promoting Textile’s services. 

10.2

Severability and No Waiver. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated. The parties agree to replace any invalid provision with a valid provision that most closely approximates the spirit and intent of the invalid provision. The waiver by either party of a breach of any provision of an Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

10.3

Assignment. Except for the right to receive payment and except as provided in Section 5 above, neither party may assign nor delegate the Agreement, whether by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, provided however, either party may assign the Agreement without the other party’s consent if such assignment is to a parent or affiliate, to a successor in interest to substantially all of the business of that party to which an Agreement relates or as part of a corporate reorganization. An assignee of either party authorized hereunder shall be bound by all the terms of an Agreement and shall have all of the rights and obligations of the assigning party set forth therein. The provisions contained herein are for the sole benefit of the parties hereto.

10.4

Independent Contractors. The parties to the Agreement are independent contractors and no agency, partnership, joint venture or employment relationship is intended or created. Except as expressly stated in an Agreement, neither party shall have the power to obligate or bind the other.

10.5

Governing Law, Jurisdiction and Venue. 

10.6

Counterparts. Each Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

10.7

Force Majeure. Neither party is liable for any delay or failure to perform any obligation under an Agreement where the delay or failure results from a Force Majeure.  “Force Majeure” is a cause of action beyond the party’s reasonable control including catastrophic events, wars, terrorism, utilities or telecommunications failure, strikes or other labor disputes, accidents, fires, weather conditions materially preventing or impairing work, equipment or machinery failure, delays in transportation, civil commotion, sabotage, interruption by government, court orders, and material changes in applicable legislation and regulations.  Notwithstanding any other provision of an Agreement, if a party is wholly or partly unable to perform material elements of its obligations hereunder, that party shall be relieved of those obligations to the extent, and for the period, that it is affected by Force Majeure provided the affected party gives the other party prompt written notice of such inability. The party affected by Force Majeure shall use all reasonable efforts to remedy the situation and remove the cause of its inability to perform, in a timely manner, provided that there shall be no obligation on a party so affected to settle labor disputes or to test or to refrain from testing the validity of any order, regulation or law in any court having jurisdiction.

10.8

Entire Agreement.  The Agreement, and any documents referenced in the Agreement, constitute the complete agreement between Textile and Customer with respect to the subject matter hereof and supersedes any prior agreements or understandings. This Agreement may only be amended by a document that references this Agreement and that is signed by both the Customer and Textile.