Legal Center > MSA (Master Services Agreement)
Terms of Service
Master Services Agreement
This Agreement is made this ________ by and between FORCEBRAIN.COM, INC. (“SUMO SCHEDULER”) with offices at 11545 Park Woods Circle Suite B Alpharetta, GA 30005 and ________________ (“CUSTOMER”) with offices at__________________________________.
And sets forth the terms and conditions under which SUMO SCHEDULER will perform certain consulting Services for CUSTOMER.
WHEREAS, CUSTOMER, from time to time, may desire SUMO SCHEDULER to supply CUSTOMER with professional consultant(s) on a subcontract basis to help meet the requirements for which CUSTOMER does not have the required resources; and
WHEREAS, SUMO SCHEDULER is prepared to furnish such professional consultant(s) to CUSTOMER on the terms and conditions contained herein.
THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties have agreed and do agree as follows:
- ENGAGEMENT OF SUMO SCHEDULER
CUSTOMER hereby engages SUMO SCHEDULER to provide consulting and implementation Services (“Services”) under the terms and conditions of this Agreement. This engagement may consist of multiple phases, each individual phase to be defined by a mutually agreed upon “Statement of Work” (also known as a Quote, Proposal, or Change Order) to be executed between the parties.
The Statement of Work will describe the Services to be performed, the dates of the Services (“Schedule”), the CUSTOMER obligations and other requirements necessary for completion of the Services (“Dependencies”), the identifiable work product to be delivered by SUMO SCHEDULER (“Deliverables”) including, but not limited, to any computer software programs or products to be configured for CUSTOMER by SUMO SCHEDULER (“Configured Software”), the price for the Services (“Fees”) and any other terms that apply to that specific Statement of Work (“Special Terms”). Except for Special Terms, this Agreement will take precedence in the event of a conflict between the terms of this Agreement and the Statement of Work.
- RATE CARD & EXPENSES
SUMO SCHEDULER agrees that the following hourly rates will apply for Services performed through December 31, 2020. On January 1, 2021, SUMO SCHEDULER reserves the right to make adjustments as appropriate to reflect market conditions.
< RATE CARD TBD >
Any roles not listed above, including resources deployed to the US or Europe or on site CUSTOMER assignments may be discussed on a project by project basis.
All Services performed by SUMO SCHEDULER shall be performed on a time and materials basis, unless otherwise defined on the Statement of Work. Effort for professional Services fees will be estimated on a project-by-project basis in the form of a Statement of Work. Unless otherwise defined on the Statement of Work, Fees will be billed to CUSTOMER on an hourly basis, as opposed to a fixed bid. Additional features and changes to scope will be at our normal rate based on the Rate Sheet above, unless otherwise specified in a separate Statement of Work. Additional requirements, wizards, workflows, features, and scope enhancements will be contracted at our normal rate based on the Rate Sheet above, unless otherwise specified in a separate Statement of Work.
In the event that a Statement of Work has not been executed, or should Services be provided for a period of time prior to execution thereof, CUSTOMER agrees to pay SUMO SCHEDULER for time and materials at the hourly rate set forth in the rate sheet defined herein.
Unless otherwise agreed in writing by CUSTOMER and SUMO SCHEDULER, CUSTOMER shall pay any and all taxes, fees, tariffs, or other levies (other than taxes on SUMO SCHEDULER’s income) imposed by any government, governmental unit or similar authority with respect to the charges made or payments received in connection with the Services.
In addition to the Fee set forth, CUSTOMER is responsible for the following upon approval in writing:
(a) actual travel and living expenses including, but not limited to airfare, mileage, lodging, auto rental, meals and incidental expenses incurred while traveling on behalf of CUSTOMER in accordance with SUMO SCHEDULER’s travel policy.
(b) other expenses, including but not limited to work materials incurred while providing the Service, including telecom and conferencing costs.
(c) reimbursements will be made subject to costs being reasonable, actually incurred, and supported by adequate documentation.
- INVOICES AND PAYMENT TERMS
Invoices will be issued out of the SUMO SCHEDULER’s Alpharetta, Georgia Office in USD$, net of any taxes or local VAT dues. Invoices will be due NET FIFTEEN (15) days from the date thereof. Failure to pay any undisputed invoices within fifteen (15) days from the date the invoice is issued will entitle SUMO SCHEDULER to an interest charge at the rate of the lesser of one and one half percent (1.5%) per month or the maximum allowed by law, in addition to any other costs associated with the collection thereof. Failure to pay an invoice on time will put the project on hold, until all outstanding invoices are settled and paid up-to-date. SUMO SCHEDULER reserves the right to adjust the terms of payment hereunder should CUSTOMER’s financial condition materially change.
- CHANGE CONTROL
CUSTOMER may request changes that affect the scope of the Services relating to any Statement of Work (“Change Order”), including changes in the Deliverables to be delivered. If the CUSTOMER requests such a change, then SUMO SCHEDULER shall notify the CUSTOMER promptly in writing if it believes that an adjustment in the Fees with respect to such Statement of Work, or an adjustment to the relevant schedule, is required. In such event, the parties shall negotiate in good faith a reasonable and equitable adjustment in the applicable Fees and schedule, as applicable. Notwithstanding the foregoing, unless requested by the CUSTOMER, SUMO SCHEDULER shall continue to work pursuant to the existing Statement of Work and neither party shall be bound by any change requested hereunder until such change has been documented in writing and signed by both parties.
- NO-SHOW, DELAYS, & EXPIRATION OF CREDITS
- Hours will be logged in full for no-show meetings, where the CUSTOMER fails to provide a 24-hour notice to reschedule.
- CUSTOMER delays in excess of 10 business days are subject to a “restocking fee” of 15% of the total project amount, for each week the CUSTOMER delays the project.
- If applicable, paid hours that go unused for 90 days after the date of deployment expire and are no longer available for credit towards Services.
- OWNERSHIP OF DELIVERABLES
(a) The Deliverable(s) and all documents, designs, inventions, computer programs, data, computer documentation and other tangible materials authorized or prepared by SUMO SCHEDULER for the CUSTOMER in the course of providing Services are and shall be the sole and exclusive property of CUSTOMER and shall be considered works for hire (“Works”) for United States copyright purposes. For the purposes of all matters other than United States copyright laws, and to the extent that such Deliverable may not fall within the specifically enumerated works that constitute works made for hire under the United States copyright laws, SUMO SCHEDULER hereby assigns all copyrights, trademarks, trade secrets, patents, or other proprietary rights and all other right, title and interest throughout the world and without further consideration in and to such Deliverable to the CUSTOMER. The assignment of the Deliverable hereunder includes all rights of paternity, integrity, attribution and withdrawal and any other rights known as, or substantially similar to, “moral rights.” To the extent such moral rights may not be assigned under applicable law and to the extent such assignment is not allowed by the laws in the various countries where moral rights exist, SUMO SCHEDULER hereby waives such moral rights and consents to any action that would violate such moral rights in the absence of such consent.
(b) CUSTOMER acknowledges that in performing the Services hereunder, SUMO SCHEDULER may utilize proprietary works, including without limitation software, tools, specifications and other materials, that are “Pre Existing,” that is, that were developed by SUMO SCHEDULER or a third party prior to the start of a particular Statement of Work and that were not created specifically for the CUSTOMER. To the extent SUMO SCHEDULER incorporates Pre Existing materials into the Deliverable, SUMO SCHEDULER grants CUSTOMER a perpetual, royalty-free, irrevocable worldwide right and license to use, copy, modify and distribute such Preexisting materials.
(c) SUMO SCHEDULER shall take such action as the CUSTOMER may reasonably request to effect, perfect or confirm CUSTOMER’s ownership interests and other rights to the Deliverables as set forth herein, including prompt execution of instruments of assignment, declarations, affirmations or other documents in connection with the provisions of this Section 7.
(d) Notwithstanding the foregoing, SUMO SCHEDULER shall have the right to use for any purpose all Residuals embodied in the Works. As used in the foregoing sentence, the term “Residuals” shall mean the general concepts, methodologies, techniques and processes, in non-tangible form only, which are developed by SUMO SCHEDULER during the course of the Agreement and which satisfy all of the following: (i) are of a general programming or business nature (and not specific to any Works created by SUMO SCHEDULER for the CUSTOMER), (ii) are not specifically related to the CUSTOMER’s business, and (iii) were not developed using, or based on, any confidential information (as such term is used in Section 9 below) of the CUSTOMER.
- ACCEPTANCE OF DELIVERABLES
SUMO SCHEDULER’s Services include acceptance testing. The purpose of this acceptance testing is to confirm that the Configured Software substantially conforms to the specifications set forth in the Statement of Work. CUSTOMER will be deemed to have accepted the Configured Software upon the first to occur of: (1) successful completion of the acceptance testing; or (2) CUSTOMER commencement of general use of the Configured Software. Following acceptance of the Configured Software by CUSTOMER pursuant to this paragraph or the applicable Statement of Work, SUMO SCHEDULER’s Service obligations to CUSTOMER will cease.
- Acceptance Testing Criteria: SUMO SCHEDULER and CUSTOMER shall jointly establish reasonable acceptance testing criteria in the applicable Statement of Work or amendment thereto.
- Testing Procedure: CUSTOMER shall have ten (10) days to test the Configured Software according to the acceptance criteria from the date the Configured Software is provided by SUMO SCHEDULER. Should the Configured Software not perform in accordance with the acceptance criteria under normal use, CUSTOMER shall promptly notify SUMO SCHEDULER and provide a detailed description relative to which aspects of the Configured Software failed to pass the acceptance test. Following notification to SUMO SCHEDULER that the Configured Software has not met the acceptance criteria, SUMO SCHEDULER shall have up to forty-five (45) calendar days from receipt of the notice to correct errors in the Configured Software. Following such corrections, SUMO SCHEDULER shall notify CUSTOMER in writing that the Configured Software is ready for retesting and CUSTOMER shall have five (5) days to either accept or reject the Configured Software. If the Configured Software fails to pass the acceptance test despite SUMO SCHEDULER’s efforts, CUSTOMER may, at its option, terminate this Agreement or request SUMO SCHEDULER to make additional corrections by again providing a detailed description of the errors. In the event either party determines such corrections are not feasible, either party may terminate the Statement of Work or portion thereof applicable to the Configured Software that has failed to pass the aforementioned testing. In such an event, SUMO SCHEDULER shall thereafter refund to CUSTOMER the Fee paid to SUMO SCHEDULER applicable to that portion of the Deliverable.
(c) Support: CUSTOMER shall have ninety (90) days from the date of deployment to utilize any remaining support hours, whereby CUSTOMER may email support@SUMO SCHEDULER and receive a 24-Hour response.
During the course of performing Services for CUSTOMER, SUMO SCHEDULER may be given access to confidential or proprietary information of CUSTOMER. SUMO SCHEDULER shall (a) use CUSTOMER’s confidential or proprietary information solely for those purposes expressly agreed to in writing; and (b) strictly maintain the confidentiality of CUSTOMER’s confidential or proprietary information, both during SUMO SCHEDULER’s performance of Services and for a period of two years thereafter. Without the prior written consent of CUSTOMER, SUMO SCHEDULER shall not use, sell, resell, lend, disclose, or otherwise publish CUSTOMER’s confidential or proprietary information for any purpose unrelated to the provision of Services to CUSTOMER. Moreover, SUMO SCHEDULER will restrict dissemination of CUSTOMER’s confidential and proprietary information to those SUMO SCHEDULER personnel involved in providing Services to CUSTOMER and who SUMO SCHEDULER, in good faith, believes need to know or have access to CUSTOMER’s confidential or proprietary information in order to provide such Services.
SUMO SCHEDULER shall inform all SUMO SCHEDULER personnel to whom access will be given of the terms and conditions of this Agreement governing the treatment of CUSTOMER’s confidential or proprietary information and obtain the agreement of such personnel to abide by such terms. SUMO SCHEDULER’s obligation to maintain the confidentiality of CUSTOMER’s confidential or proprietary information will terminate with respect to any particular portion of the information that SUMO SCHEDULER can demonstrate (a) was within the public domain at the time of its disclosure hereunder; (b) entered the public domain through no fault of or attributable to SUMO SCHEDULER subsequent to the time of its disclosure hereunder; or (c) independently developed by SUMO SCHEDULER without reference to said information.
- LIMITED WARRANTY
(a) SUMO SCHEDULER warrants that:
- it will perform the Services under this Agreement in a skillful, competent, and workmanlike manner; and
- the Deliverables delivered to CUSTOMER shall perform substantially in conformity with the specifications contained in the Statement of Work.
The warranties contained in this Section 10 shall be effective for a period of seven (7) days from the date of acceptance of the relevant Service or Deliverable, as defined when a CUSTOMER marks the Service or Deliverable as “Pass/Approved” or acknowledges acceptance via email, whichever happens first. In the event of a breach of the warranty contained in Section 10(a) (1) or 10(a) (2), CUSTOMER must notify SUMO SCHEDULER in writing within ten (10) calendar days of discovering the breach. Upon receipt of such notice, SUMO SCHEDULER shall use all commercially reasonable efforts to correct the deficiency without charge and in a timely manner. If, after a period of sixty (60) days following receipt by SUMO SCHEDULER of such notice, SUMO SCHEDULER is unable to remedy the deficiency, SUMO SCHEDULER shall refund that portion of the Fee attributable to the Service or Deliverable that is the subject of the claimed breach. The warranties contained in this Section 10 shall be null and void and of no force and effect if the Deliverables fail to perform as a result of modification, accident, neglect or misuse, user error, or electrical power damage. CUSTOMER acknowledges that this paragraph sets forth SUMO SCHEDULER’s sole obligation and liability and CUSTOMER’s sole and exclusive remedy for a breach of the express warranties contained herein.
(b) THIRD PARTY SOFTWARE. SUMO SCHEDULER may provide Services in connection with the software, documentation and other materials, which are owned by a third party and not CONSULTANT (collectively, “Third Party Software”). Unless as otherwise set forth in the applicable Deliverables, any warranties regarding Third Party Software are set forth in a separate agreement between CUSTOMER and the manufacturer of such Third Party Software. CUSTOMER ACKNOWLEDGES AND AGREES THAT the CUSTOMER IS SOLELY RESPONSIBLE FOR THE SELECTION OF THE THIRD PARTY SOFTWARE, AND THAT, UNLESS AS OTHERWISE SET FORTH IN THE APPLICABLE DELIVERABLE, SUMO SCHEDULER IS NOT RESPONSIBLE FOR ANY FAILURE OF ANY OF THE THIRD PARTY SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, SUMO SCHEDULER MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT REGARDING ANY THIRD PARTY SOFTWARE.
(c) THIRD PARTY SUPPORT. SUMO SCHEDULER shall not be responsible for the performance or conformity of any portion of any Deliverable provided by other personnel, which are not under the employment of SUMO SCHEDULER (“Third Party”). In the event that Third Party introduces enhancements, corrections or any computer code to the Deliverable or Third Party Software included in this Statement of Work without the prior written consent and approval from SUMO SCHEDULER, and such computer code invalidates the functionality of any portion of the Deliverable or Third Party Software, SUMO SCHEDULER will not be responsible for the performance and conformity of any part of the work product or Third Party Software provided to CUSTOMER.
(d) WARRANTY DISCLAIMER. THE FOREGOING LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AND CONSTITUTES THE SOLE AND EXCLUSIVE WARRANTIES OF SUMO SCHEDULER WITH RESPECT TO THE SERVICES AND DELIVERABLES UNDER THIS AGREEMENT. SUMO SCHEDULER SPECIFICALLY DISCLAIMS, AND CUSTOMER RELEASES AND WAIVES, ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY ARISING UNDER STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. SUMO SCHEDULER EXPRESSLY DOES NOT WARRANT OR SUPPORT ANY THIRD PARTY. Without limiting the generality of the foregoing, SUMO SCHEDULER does not warrant that the Services or Deliverables will meet CUSTOMER’s requirements, will operate in any combination that may be selected for use by CUSTOMER or in combination with other software, or will operate uninterrupted or error free. Furthermore, SUMO SCHEDULER does not warrant that all software errors, defects or inefficiencies will be corrected, nor does SUMO SCHEDULER assume any liability for failure to correct any such error, defect or inefficiency. SUMO SCHEDULER makes no warranty, and CUSTOMER assumes the entire risk, as to the capabilities, suitability, use or performance of the Deliverables.
(a) By SUMO SCHEDULER: SUMO SCHEDULER shall indemnify, defend and hold CUSTOMER harmless from all liabilities, obligations, losses, damages, injuries, and claims setting forth that the Deliverable(s) as delivered to CUSTOMER under this Agreement infringes upon any copyright, trademark, trade secret, patent, or other proprietary right of any third party
(i) Investigation, Defense and Indemnification. SUMO SCHEDULER agrees to investigate promptly and defend CUSTOMER against any claim, demand, suit or action brought against CUSTOMER based on any claim that the Deliverables delivered by SUMO SCHEDULER to CUSTOMER infringes any existing patent, copyright, trademark, trade secret or other proprietary right of any third party, provided CUSTOMER (i) provides timely notice of any such claim, demand, suit or action to SUMO SCHEDULER, and (ii) agrees to cooperate with SUMO SCHEDULER and to execute any and all documents and take any and all action deemed necessary or advisable by SUMO SCHEDULER to protect the Deliverables and CUSTOMER’s interests therein. If the above stated conditions are met, SUMO SCHEDULER agrees to assume the defense of such claim, demand, suit or action, with counsel of SUMO SCHEDULER’s choice, and indemnify and hold harmless CUSTOMER from and against any and all damages and costs (including reasonable attorneys’ fees) finally awarded by a court against CUSTOMER as a result of any such claim, demand, suit or action; provided that SUMO SCHEDULER will not be responsible for any damages or costs under any compromise made by CUSTOMER without SUMO SCHEDULER’s written consent.
(ii) Non-Infringing Use. If, in SUMO SCHEDULER’s opinion, any of the Deliverables are likely to become the subject of a claim for infringement or if, as a result of any such claim, demand, suit or action, CUSTOMER is enjoined from using any of the Deliverables, SUMO SCHEDULER may, at its own expense and at its option, (i) replace the same with non-infringing software of equivalent function or performance, or (ii) modify such Deliverable so that it becomes non-infringing. If none of these options is reasonably practical, SUMO SCHEDULER may terminate this Agreement with respect to the subject Deliverable, whereupon SUMO SCHEDULER shall refund to CUSTOMER that portion of the Fee paid by CUSTOMER which is attributable to the development of such Deliverable as full payment of all obligations of SUMO SCHEDULER pursuant to this Agreement.
(iii) No Further Indemnity. SUMO SCHEDULER shall have no obligation with respect to any such infringement claim based upon CUSTOMER’s modification of the Deliverables or their combination, merger, operation or use with equipment, data, software or other items not furnished by SUMO SCHEDULER, provided such infringement would have been avoided but for such combination or merger.
(b) By CUSTOMER: CUSTOMER shall indemnify, defend and hold SUMO SCHEDULER harmless from all liabilities, obligations, losses, damages, injuries, and claims relating to CUSTOMER’s use of the Configured Software.
(i) Investigation, Defense and Indemnification. CUSTOMER agrees to investigate promptly and defend SUMO SCHEDULER against any claim, demand, suit or action brought against SUMO SCHEDULER based on any claim that its use of the Configured Software infringes any existing patent, copyright, trademark, trade secret or other proprietary right of any third party, provided SUMO SCHEDULER (i) provides timely notice of any such claim, demand, suit or action to CUSTOMER, and (ii) agrees to cooperate with CUSTOMER and to execute any and all documents and take any and all action deemed necessary or advisable by CUSTOMER to protect the Configure Software. If the above stated conditions are met, CUSTOMER agrees to assume the defense of such claim, demand, suit or action, with counsel of CUSTOMER’s choice, and indemnify and hold harmless SUMO SCHEDULER from and against any and all damages and costs (including reasonable attorneys’ fees) finally awarded by a court against SUMO SCHEDULER as a result of any such claim, demand, suit or action; provided that CUSTOMER will not be responsible for any damages or costs under any compromise made by SUMO SCHEDULER without CUSTOMER’s written consent.
(ii) No Further Indemnity. CUSTOMER shall have no obligation with respect to any such infringement claim except as set forth herein.
- RELATIONSHIP OF PARTIES/INDEPENDENT CONTRACTOR
SUMO SCHEDULER is and, at all times, shall perform the Services as an independent contractor. Nothing contained in this Agreement shall be construed to create an agency, joint venture or partnership between the parties. SUMO SCHEDULER shall determine the time, place, methods, details and means of performing the Services under this Agreement. SUMO SCHEDULER is responsible for the supervision, control, compensation, and health and safety of SUMO SCHEDULER personnel.
Either party may issue a press release regarding the relationship between the parties or this Agreement with the advance written consent of the other party, such consent not to be unreasonably withheld. Both parties agree not to disparage or otherwise speak negatively about the other party or any of its officers, directors or employees.
- LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO A BREACH BY SUMO SCHEDULER OF ITS WARRANTIES OF NON INFRINGEMENT AS SET FORTH IN SECTION 10 ABOVE, AND EXCEPT IN THE EVENT OF PERSONAL INJURY OR DAMAGE TO PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR NEGLIGENCE OF SUMO SCHEDULER, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR SAVINGS) INCURRED BY THE OTHER PARTY, EVEN IF THE FIRST PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY UNDER THIS AGREEMENT AND ANY APPLICABLE STATEMENT OF WORK, FOR ANY CAUSE OF ACTION WHATSOEVER, SHALL BE LIMITED TO THE TOTAL FEES DUE UNDER THE APPLICABLE STATEMENT OF WORK. IN NO EVENT SHALL SUMO SCHEDULER BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM OR RELATED TO THE USE OR PERFORMANCE OF THE DELIVERABLES.
- COMPLIANCE WITH LAWS
SUMO SCHEDULER shall comply with all applicable federal, state, and local laws and regulations, whether of the United States or of any other country in which work is performed under this Agreement. SUMO SCHEDULER is also responsible for compliance with all applicable harmony codes, ordinances and standards that may be issued by public authorities. In particular, SUMO SCHEDULER agrees to comply with all applicable: (a) export laws; (b) employment laws; and (c) tax laws, whether of the United States or of any other country.
- TERM AND TERMINATION
(a) Upon execution by both parties hereto, this Agreement shall be effective on the date first set forth above and, unless terminated early in accordance with this Section 16, shall continue until the date of completion of all Services under all Statements of Work entered into hereunder.
(b) Either party may terminate this Agreement or any Statement of Work upon thirty (30) days’ prior written notice to the other party. If this Agreement or Statement of Work is terminated by the CUSTOMER, CUSTOMER shall pay SUMO SCHEDULER for all work performed on a time and materials basis and for all expenses incurred prior to the effective date of termination. In addition, CUSTOMER shall also pay a termination fee equal to 25% of the total amount contracted under the applicable Statement of Work. If CUSTOMER provides less than ten (10) business days advance written notice of a Statement of Work termination for which Services have been scheduled, the termination fee payable as set forth above shall be equal to 100% of the total amount contracted as set forth in the Statement of Work.
(c) Notwithstanding completion or termination of the Services or the termination or expiration of this Agreement, the parties shall continue to be bound by the provisions of this Agreement which by their nature are intended to survive completion or termination.
(a) Governing Law; Forum Selection. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Georgia, without regard to the conflict of laws rules.
(b) Venue. The federal courts of the United States in the state of Georgia, and the state courts of the State of Georgia, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non convenience or otherwise.
(c) Non-Exclusivity. CUSTOMER expressly acknowledges that this Agreement does not restrict in any way SUMO SCHEDULER’s right to seek or accept work engagements from or for any other entity.
(d) Notices. Any notice or formal communication required or permitted under this agreement shall be in writing and delivered to the parties at the following addresses:
11545 Park Woods Circle Suite #B
Alpharetta GA 30005
(e) Non-assignment. Neither CUSTOMER nor SUMO SCHEDULER may assign this Agreement or any of the rights or obligations hereunder without the prior written consent of the other party to this Agreement except pursuant to a merger, acquisition, or other change of control. The above notwithstanding, SUMO SCHEDULER reserves the right to subcontract portions of the Services. Should SUMO SCHEDULER invoke such a right, SUMO SCHEDULER shall remain primarily liable for delivery of the Services at all times.
(f) Entire Agreement. This Agreement, together with any subsequent Statement of Work, signed by both parties, constitutes the entire agreement between the parties hereto and supersedes any and all prior agreements, arrangements, and/or understandings between the parties relating to the subject matter hereof. This Agreement shall not be deemed or construed to be modified or amended except by written agreement of the parties.
(g) No Waiver. The failure of either party at any time to require performance by the other of any provision hereof shall in no way constitute a waiver thereof unless expressly waived in writing. Nor shall the waiver of any breach of any provision hereof be held to be a waiver of any subsequent breach of such provision or any other provision.
(h) Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
(i) Force Majeure. Neither party shall be liable for any delays nor failure in performance due to causes beyond its reasonable control. The above notwithstanding, CUSTOMER shall remain liable for its failure to meet any Dependency not caused by a condition of Force Majeure.
(j) Non Solicitation; No Hire Policy. Unless otherwise mutually agreed to by the parties in writing, CUSTOMER agrees not to hire, retain or seek to retain any current and/or former employee, consultant, agent or other personnel of SUMO SCHEDULER during the term of this Agreement and for a period of thirty-six (36) consecutive months after SUMO SCHEDULER has ceased providing Services to CUSTOMER under this Agreement. The parties acknowledge and agree the Services involve complex methodology requiring a high degree of specific product training. Therefore, should CUSTOMER contract with or employ such a SUMO SCHEDULER employee or agent during this time period for whatever reason, the CUSTOMER shall pay to SUMO SCHEDULER as liquidated damages and not as a penalty a sum equal to $180,000 in US Dollars
(k) Counterparts and Exchanges by Fax. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original and all of which together shall constitute one and the same instrument, and in making proof hereof it shall not be necessary to produce or account for more than one such counterpart. A facsimile signature shall be sufficient to bind a party hereto, and such party shall promptly forward an original signature page to the other party.