These Terms are between client (“CLIENT”) and J. Barrows, LLC, located at 361 Newbury St, 5th Floor, Boston, MA 02115(“VENDOR”)

1.0 GENERAL TERMS

1.1 Agreement Overview

This Master Service Agreement (“Agreement”), effective as of the day CLIENT has accepted this Agreement (“Effective Date”), governs all services (“Services”) provided by VENDOR to CLIENT. Specific deliverables, timelines, and pricing will be set forth in individual Statements of Work (“SOW”) or orders executed under this Agreement. Each SOW shall be subject to the terms of this Agreement.

1.2 Online Platform and Software Access

If any application programming interfaces (“APIs”), online portals, or other software (collectively, “Software”) are provided to CLIENT, VENDOR grants CLIENT a revocable, non-exclusive, non-transferable, non-sublicensable license during the Term to use such Software and related documentation solely for CLIENT’s internal business purposes.  CLIENT shall not (a) copy, modify, or create derivative works of the Software or any online training content; (b) share access credentials with any third party; (c) record, resell, or redistribute training content; or (d) use the Software or Services to compete with VENDOR.  Online portal access will remain active for the duration specified in the applicable SOW or order form.

1.3 Ownership and Intellectual Property

Except as expressly stated otherwise, VENDOR or its licensors, as applicable, shall retain all rights, title and interest in and to the Services, Software and related materials, including without limitation all intellectual property rights. Subject to CLIENT’s full payment of all fees, VENDOR hereby grants to CLIENT during the Term of this Agreement a limited, non-exclusive, royalty-free, non-sub-licensable and non-transferable license to use deliverables  solely for CLIENT’s internal business purposes.  CLIENT shall not record any in-person or remote training sessions or lectures or any webinars provided by VENDOR, and shall not distribute or disclose any materials or recordings obtained through the Services or Software to the public or any third parties except in furtherance of CLIENT’s internal business purposes.

2.0 DELIVERY TERMS

2.1 Statements of Work and Orders

CLIENT may cancel, modify or reject an SOW or any portion by giving VENDOR no less that 60 (sixty) days prior written notice. In the event of cancelation, modification or rejection, VENDOR shall immediately cease work on such project and inform all third-party vendors, if any, or other engaged in such work to cease or modify their activities. CLIENT shall pay for all Services and Software provided up until the date of cancelation, modification or rejection, and shall be liable to pay for Services and Software rescheduled or cancelled, which was scheduled inside such sixty (60) day period as set forth on the SOW.   In the event of termination or expiration of this Agreement, CLIENT shall immediately pay for all Services and Software provided up to and including the date of termination or expiration.

2.2 Facilities and Equipment

CLIENT shall provide VENDOR without charge any facilities, equipment, resources and cooperation as are reasonably required by VENDOR to perform the onsite Services, as applicable.

2.3 Performance of Services

VENDOR shall determine the content, manner and means by which the Services are accomplished, subject to the express condition that VENDOR shall at all times comply with applicable law.  If there is a global health emergency and travel restrictions are implemented (i.e. such as Coronavirus measures) VENDOR will deliver the training virtually and all respective timelines and deliverables will remain in place and adhered to.

Nothing in this Agreement will prevent VENDOR or any of its representatives from utilizing their general skills, know-how and expertise, and to use, disclose and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Services performed hereunder or from making use of the know-how acquired, principles learned or experience gained during the performance of the Services.  CLIENT hereby authorizes VENDOR to place an advertisement or other notice on VENDOR’s website disclosing that VENDOR has provided the Services and/or Software to CLIENT and to use CLIENT’s name in any standard customer listing (or partial customer listing) published by VENDOR and in press releases or other publications.

3.0 FEES AND PAYMENT

3.1 Fees and Invoices

CLIENT agrees to pay VENDOR all undisputed fees and other amounts specified in this Agreement or any applicable SOW within 30 days of invoice date, unless otherwise agreed in writing.  In the event that CLIENT fails to make any payments when due, VENDOR may withhold further Services or withhold access to Software, as applicable. A three percent (3%) processing fee will be applied to all payments made by credit card.

3.2 Taxes

CLIENT shall be responsible for all applicable taxes, duties, and fees relating to the Services and/or Software, excluding taxes based on VENDOR’s income.

3.3  Refunds

Unless otherwise stated in an SOW, fees are non-refundable once Services have commenced or access to the Software has been provided. CLIENT’s dissatisfaction with the nature or quality of the Services shall not constitute a basis for a refund.

4.0 REPRESENTATIONS AND WARRANTIES

4.1 Mutual Representations

Each party represents and warrants that: (a) it has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (b) execution and performance into or under this Agreement does not violate any other third-party contract or obligation; (c) it owns or has licenses or sublicenses to all right, title and interest to any materials, technology, or intellectual property delivered to the other for use in connection with the Services and Software identified in this Agreement and the applicable SOW(s), and that such materials, technology and intellectual property do not infringe and third party’s rights; and (d) it will comply with all applicable laws, including data protection, export control, and anti-corruption laws.

4.2 Disclaimers

EXCEPT AS EXPRESSLY PROVIDED HEREIN, VENDOR MAKES NO OTHER WARRANTIES OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CLIENT AGREES THAT THE USE OF VENDOR’S SOFTWARE AND/OR SERVICES IS AT YOUR SOLE RISK. THAT SUCH SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. VENDOR MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.  CLIENT UNDERSTANDS AND AGREES THAT CLIENT’S USE, ACCESS OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SOFTWARE OR THE SERVICES IS DONE AT CLIENT’S OWN DISCRETION AND RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S PROPERTY (INCLUDING CLIENT’S COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.  CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF CLIENT RESIDES IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO CLIENT, AND CLIENT MAY HAVE ADDITIONAL RIGHTS

5.0 LIMITATION OF LIABILITY AND LIABILITY CAP

5.1 Exclusion of Damages

IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF: (i) THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SOFTWARE OR SERVICES; (ii) ANY CONDUCT BY OR ON BEHALF OF VENDOR THAT CONSTITUTES, OR MAY CONSTITUTE, A CIVIL VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT OF 1984 AND AS MAY BE AMENDED FROM TIME TO TIME, OR (iii) ANY VIRUSES THAT MAY INFECT, CLIENT’S COMPUTER, MOBILE DEVICE, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THE SOFTWARE, OR CLIENT’S DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM VENDOR, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

5.2 Liability Cap

IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, THIRD PARTY PARTNERS, LICENSORS’ OR SUPPLIERS’ TOTAL LIABILITY TO THE OTHER PARTY FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR CLIENT’S USE OF THE SOFTWARE OR SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE LESSER OF (1) $100,000 OR (2) THE TOTAL AGGREGATE AMOUNT PAID BY CLIENT TO VENDOR UNDER THE APPLICABLE SOW OR THAT PARTICULAR SERVICE OR SOFTWARE.  The foregoing limitations shall not apply to CLIENT’s payment obligations; either party’s indemnification obligations; or breaches of confidentiality.

6.0 INDEMNIFICATION

6.1  Client Indemnification

CLIENT shall indemnify, defend and hold harmless VENDOR, its officers, employees, directors, affiliates, agents, representatives and subcontractors, for any and all damages, costs, expense and other liabilities, including reasonable attorney fees, reasonable expert fees and court costs, incurred in connection with any third-party claim, action or proceeding arising from: (a) CLIENT’s materials, data or other property violates the intellectual property rights of any third party; (b) CLIENT’s misuse of the Services or Software; or (c) CLIENT’s breach of this Agreement.  

6.2  Vendor Indemnification

VENDOR shall indemnify, defend and hold harmless CLIENT, its officers, employees, directors, affiliates, agents, representatives and subcontractors, for any and all damages, costs, expense and other liabilities, including reasonable attorney fees, reasonable expert fees and court costs, incurred in connection with any third-party claim, action or proceeding alleging that any documents, materials, information, or other property of VENDOR violates the intellectual property rights of any third party, provided CLIENT gives prompt written notice and allows VENDOR to control the defense.

7.0 TERM AND TERMINATION

7.1  Term

This Agreement shall commence on the Effective Date and continue for one (1) year, automatically renewing for successive one-year periods unless either party provides thirty (30) days’ written notice of non-renewal.

7.2 Termination for Convenience

Either party may terminate this Agreement for any reason with thirty (30) days’ written notice to the other party.

7.3  Termination for Cause

Either party may terminate this Agreement immediately upon written notice if the other party: (a) materially breaches this Agreement and fails to cure such breach within ten (10) days after receiving written notice; or (b) becomes insolvent or files for bankruptcy.

7.4  Effect of Termination

If this Agreement is terminated: (i)  CLIENT shall immediately cease all use of the Services and/or Software as of the date of termination; (ii) CLIENT shall immediately pay VENDOR any remaining fees or other amounts owed; and (iii) the parties will continue to be liable for any liabilities accrued or amounts payable prior to that  termination.  The termination remedies set forth herein are in addition to, and not to the exclusion of, any other rights or remedies either party may have against the other, all of which are expressly reserved.

8.0 CONFIDENTIALITY

8.1  Confidential Information

CLIENT or VENDOR may from time to time disclose to the other party confidential information relating to its business and affairs ("Confidential Information"). Neither party will disclose Confidential Information of the other to the public or any third party, other than to its employees and authorized sub-contractors, without the express written consent of the other party, nor make use of any Confidential Information other than in the performance of this Agreement, except that either party may disclose Confidential Information as required by law or legal process. Each party will use at least the same degree of care, but not less than reasonable care, to avoid disclosure of Confidential Information as it uses with respect to its own Confidential Information.

Confidential Information will either be (i) clearly designated in writing as confidential, or if verbally disclosed, identified as being confidential or (ii) of such a nature that a person would reasonably understand such information to be confidential.

8.2 Exclusions

Confidential Information does not include information: (a) generally available to or known to the public, (b) previously known to the recipient, (c) independently developed by the recipient outside the scope of this Agreement, (d) lawfully disclosed by a third party, or (e) disclosed during testimony before any judicial or quasi-judicial court or tribunal.

8.3 Data Protection

Each party shall comply with all applicable data protection and privacy laws, including the GDPR and CCPA (where applicable). CLIENT acknowledges that its users’ data processed through the online portal may be subject to VENDOR’s Privacy Policy.

8.4 Survival

Confidentiality obligations shall survive the termination or expiration of this Agreement for a period of five (5) years after such disclosure.

9.0 OTHER TERMS

9.1 Relationship of the Parties

The parties are independent contractors. Nothing in this Agreement creates an employment, joint venture, or agency relationship.

9.2 Assignment

This Agreement is binding upon and will inure to the benefit of both parties, and their respective successors and assigns. CLIENT may not assign its rights under this Agreement to a third party without VENDOR’s prior written consent, such consent not to be unreasonably withheld. VENDOR may sub-contract the performance of any Services to any contractor, with the consent of CLIENT (which will not be unreasonably withheld).

9.3 Force Majeure

Neither party shall be deemed to be in default of any provision of this Agreement, or failures in performance, resulting from acts or events beyond the reasonable control of such party and such acts shall include, but not be limited to, acts of God, civil or military authority, civil disturbance, war, strikes, fires, pandemics or other catastrophes, or other “force majeure” events beyond the parties’ reasonable control.

9.4 Export Compliance

CLIENT shall comply with all U.S. export laws, including OFAC regulations, and shall not export the Services or Software to sanctioned countries or persons.

9.5 Notices

All notices, requests or demands made or given pursuant to this Agreement shall be in writing and given by posted delivery, recorded delivery, e-mail or by facsimile transmission to the other party at the address written on the front page of this Agreement.  Each party shall promptly give written notice of any change in its address or addressee.

9.6 Entire Agreement; Amendments

This Agreement and all SOWs constitutes the entire agreement between the parties, superseding all prior agreements.  Any modification must be in writing and signed by both parties.

9.7 Governing Law and Dispute Resolution

This Agreement, and any matters relating to it, will be governed, construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflicts of law provisions. Before initiating litigation, the parties shall attempt to resolve any dispute through good faith negotiation or mediation. Any action arising out of this Agreement shall be brought in the state or federal courts located in Suffolk County, Massachusetts, and each party consents to jurisdiction therein.

9.8 Electronic Execution

This Agreement may be executed electronically and shall be deemed effective upon digital acceptance by both parties.