Master Services Agreement Terms and Conditions

1. Agreement.
1.1  These Terms and Conditions govern all aspects of the obligations and liabilities between Arcalea LLC, an Illinois limited liability company (“Arcalea”), and the Client relating to the Project or Quote. These Terms and Conditions, any Quote, and all other Project-related agreements are referred to herein as the “Agreement.” Although these Terms and Conditions are not executed, they shall nonetheless be effective and controlling to the parties.

2. Definitions.
2.1. “Client” means the company or individual that executes the Quote, other than Arcalea.

2.2. “Product” means Galileo and Compass.

2.3.  “Project” means the project identified in the Quote.

2.4. “Quote” means a written Statement of Work duly executed by both Arcalea and the Client.

3. Services.
3.1. Arcalea will provide to Client and Client will purchase from Arcalea certain Products and or Services (“Services”) as described in one or more Quote. If Client requests in writing to purchase any Products or perform any Services not included in the Quote (“Additional Services”), the Client will provide Arcalea with additional compensation at the rates set forth in the applicable Quote. Each Quote that is executed by the parties forms a separate agreement and incorporates by reference and is governed by these Terms and Conditions, including all amendments thereto.

3.2. Client acknowledges that the terms set forth in each Quote are reasonable estimates based on the best available information and may change from time to time. In the event that Client requests Additional Services, the parties must amend the relevant terms of the Quote. Any amendments to a Quote must be agreed to in writing by both parties in order to be effective. [This Section is not applicable to MAC as described in Section 5.2.] 

4. Term; Termination.
4.1. Term.
This Agreement is effective as of the Effective Date and shall continue in force for a period equal to the longer of: (i) the expiration of all Quotes which have been executed by the Parties; or (ii) 2 years following the Effective Date of this Agreement (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for subsequent 1-year renewal terms (each a “Renewal Term,” and together with the Initial Term and any/all other Renewal Terms, the “Term”) unless either Party gives notice to the other Party of its intent not to renew the Agreement no fewer than 90 days prior to the end of the Initial Term or any Renewal Term then in place.

4.2. Termination.
Either Party may terminate this agreement if: (i) the other Party materially breaches any provision of this Agreement and fails to cure such breach within 30 days; (ii) Client is insolvent; (iii) either Party files for bankruptcy, makes an assignment for the benefit of creditors, or insolvency or receivership proceedings commence against the other Party.

Arcalea may terminate this agreement if Client fails to make any undisputed payment when due and fails to pay within 10 business days after receipt of written notice from Arcalea.

4.3. Effect of Termination.
Upon termination or expiration of this Agreement: (i) all rights and licenses granted to Client under this Agreement will immediately cease; (ii) Client shall make no further use of the Services and will promptly destroy or permanently erase all copies of the foregoing, unless continuing use is explicitly contemplated in a Quote; (iii) neither Party shall have continuing rights to the other Party’s Confidential Information; and (iv) any payment obligations that have accrued but which Client has not yet paid will become immediately due and payable. If either Party terminates this Agreement, such termination will be without prejudice to any right or remedy which either Party may have at law or in equity and will not relieve either Party of breaches occurring prior to the effective date of such termination.

Unless otherwise specified in an applicable Quote, the Agreement shall remain in full force and effect until the Project is completed, unless either party provides the other party with not less than ninety (90) days prior written notice of its intent to terminate pursuant to Section 4.1. Notwithstanding the foregoing, either party may terminate the Agreement without such 90-day notice if the other party materially breaches the Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach. For the avoidance of doubt, Client’s failure to pay fees in a timely manner constitutes a material breach of this Agreement.

5. Payment Terms; Reimbursable Expenses.
5.1. As consideration for Services, Client shall pay the fees set forth in the applicable Quote. Unless otherwise provided in the applicable Quote, all fees will be due and payable within fifteen (15) days of the invoice date. All payments due under the Quote will be paid in U.S. dollars (USD) via wire transfer or ACH payment through the company’s payment platform.

5.2. Arcalea may identify and perform additional moves, adds, and changes (“MAC”) on the Client’s behalf from time to time. Arcalea will notify Client of all MAC fees and expenses related to MAC prior for approval and such charges will be included on Arcalea’s monthly invoices.

5.3. For any payments not received within the time provided herein, Client will be charged a late fee equal to the lesser of 1.5% per month or the maximum amount permitted by law. Client will reimburse Arcalea for all costs incurred in collecting any late payments, including, without limitation, collection agency and attorneys’ fees. Without waiving any other remedies available to Arcalea under the Agreement or law, Arcalea may suspend or terminate Services if Client fails to pay any fees when due. In the event Client fails to make timely payments, in lieu of terminating the Agreement, Arcalea will have the right to revise these payment terms, including requiring advance payment for Services..

5.4. Client shall be responsible for the payment of all taxes to the appropriate taxing authority, including without limitation sales, use, or other similar state or local taxes, arising from or in relation to this Agreement..

5.5. Client will reimburse Arcalea for all reasonable expenses incurred during the performance of Services. Any reimbursable expenses shall be paid within fifteen (15) days of the invoice date and such invoice will be accompanied by receipts and reasonable supporting documentation. As used under this Agreement, reimbursable expenses shall include, without limitation, travel and lodging, parking, meals, and other reasonable expenses set forth on the applicable Quote.

6. Data and Analytics; No Warranty. 
Arcalea may provide Client with dashboards, metrics, and analytics which include data representations of real-time and/or historical information. While the data represented may be either publicly or privately available Client data, any representation, reproduction, presentation of, or manipulation of that data is provided to Client as informational only and is proprietary to Arcalea. Arcalea makes no warranties as to the integrity, timeliness, or accuracy of such data representations and Client holds harmless Arcalea for any representations or actions Arcalea may take upon the stated data and information herein. In addition, any and all visual representations provided by Arcalea are exclusively for evaluation purposes and are not included as part of deliverables or Services provided to the Client.

7. Ownership Rights.
7.1. As used under this Agreement, “Work Product” means all documentation, plans, materials, reports, dashboards, visualizations, artwork, drawings, computer programs or other information produced by Arcalea on behalf of the Client in connection with the Project, other than the Arcalea IP (as defined below). Upon full payment of the fees due to Arcalea under each applicable Quote, Arcalea will assign to Client all rights, title, and interest in and to the Work Product. After the Work Product is accepted and implemented by Client, Arcalea may display all completed Work Product in its work portfolio in print, digital, online, and any other medium for its promotional purposes. Client grants to Arcalea a limited license to display the completed, accepted, and implemented Work Product solely for such purpose.

7.2. Notwithstanding the foregoing, prior to and during the term of the Agreement, Arcalea may use or disclose to Client certain information, know-how, techniques, methodologies, algorithms, accounting, records, reports, logs, processes, requirements, designs, and specifications ("Arcalea IP") to enable Client to perform its activities related to Services. Arcalea is and shall remain the sole owner of the Arcalea IP and, except as agreed to by Arcalea in its sole discretion, Client shall have no right to review or request the Arcalea IP. Arcalea may grant, at Arcalea’s sole discretion to Client a temporary, non-exclusive, non-transferable, non-assignable, worldwide, royalty-free license, to use such Arcalea IP for the sole purpose of the lawful use of the Work Product and any modifications thereto. Upon termination of Services, any such license in connection therewith shall also terminate.

8. Confidentiality.
8.1. The parties understand that either party (as the “Disclosing Party'') may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information that if disclosed would cause irreparable harm to the Disclosing Party (“Confidential Information”). The parties hereby agree: (i) not to use such Confidential Information for any purpose other than to perform its obligations under this Agreement; (ii) not to disclose such Confidential Information to any person or entity, except for Receiving Party’s officers, directors, employees, attorneys and agents (collectively, “Representatives'') who need to know such Confidential Information and who are bound by the confidentiality terms at least as restrictive as those in this Agreement; and (iii) to protect and safeguard the Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. As used in this Agreement, “Confidential Information” shall include Arcalea’s costs to perform Services, which Arcalea will not be required to disclose to Client.

8.2. Confidential Information does not include any information that: (i) is or becomes publicly available through no fault of Receiving Party; (ii) becomes rightfully known by the Receiving Party from a third party with no confidentiality obligation to the Disclosing Party; (iii) is independently developed by the Receiving Party without the use of or reference to the Confidential Information. In addition, notwithstanding the fact that the information may be Confidential Information, any information which is required to be disclosed by applicable law or judicial or governmental authority shall not be subject to the restrictions set forth in this Section 8, provided that Receiving Party gives prompt notice of the same to the Disclosing Party in order to, where practicable, seek a protective order and provided further that the information disclosed is only that information expressly required to be disclosed by law or judicial or governmental authority.

9. Representations and Warranties.
9.1. Each party represents and warrants that: (i) it has the power and authority to enter into this Agreement and perform the obligations hereunder; and (ii) the execution and performance of this Agreement and all Quotes will not breach any oral or written agreement with other third parties.

9.2. EXCEPT AS SET FORTH ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ARCALEA HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF DATA ACCURACY, SYSTEM INTEGRATION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ARCALEA MAKES NO WARRANTIES TO PURCHASERS HEREUNDER, AND CLIENT SHALL NOT EXTEND ANY WARRANTIES TO PURCHASERS ON ARCALEA’S BEHALF.

10. Limitation of Liability. 
IN NO EVENT SHALL ARCALEA BE LIABLE FOR CUMULATIVE, CONSEQUENTIAL, OR AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE FEES ACTUALLY RECEIVED BY ARCALEA UNDER THIS AGREEMENT.

11. Infrastructure. 
Unless otherwise provided in a Quote, Arcalea will not be liable for Client’s infrastructure or technical environment in which any digital properties are or will be hosted. Client will use commercially reasonable efforts to keep its database and systems up to date and free of viruses.

12. Miscellaneous.
12.1. Notices. 
Unless otherwise provided herein, any notice or other communication to be given in writing under this Agreement will be deemed to have been given by either party to the other party upon the date of receipt, if hand delivered, or one business day after deposit with a national overnight courier for next business day delivery at the addresses set forth on the first page hereof, or upon the date of electronic confirmation of receipt of an email. A party may change its address for notices by providing written notice to the other party.

12.2. Governing Law/Venue. 
This Agreement will be governed by the laws of the State of Illinois, without regard to conflict of laws principles. Each party irrevocably and unconditionally agrees to be subject to the jurisdiction of the state and federal courts sitting in Cook County, Illinois. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

12.3. Conflict Resolution. 
The parties agree to make a good faith effort to resolve any controversy, breach, or claim arising out of or relating to this Agreement in an amicable and expeditious manner, so as to avoid unnecessary losses or delays. If such good faith negotiations fail, the dispute shall be referred to mediation before and as a condition precedent to the initiation of any adjudication including arbitration or litigation. If the parties are unable to mutually agree on a mediator within thirty (30) days of the commencement of the controversy, then either party may request that the Center for Conflict Resolution in Chicago, Illinois, select a candidate. Any mediation shall be held in Chicago, Illinois and the cost of any proceeding shall be determined during the mediation. All parties will be responsible for their costs of mediation.

12.4. Assignment. 
This Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns. Neither party may assign its rights or delegate its duties under this Agreement (whether directly or indirectly, by operation of law or otherwise) without the prior written consent of the other party; provided, however, that Arcalea may assign its rights and obligations under this Agreement to its affiliates without such consent, but with written notice to Client. Any purported assignment of rights or obligations, except as expressly permitted herein, will be null and void.

12.5. Severability. 
If any term or provision of this Agreement is deemed invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect any other term or provision of this Agreement.

12.6. Relationship of Parties. 
The parties acknowledge that Arcalea is an independent contractor. Nothing in this Agreement or any Quote will be construed as creating a partnership, joint venture, agency, or fiduciary relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other, or to hold themselves out to any third party as an agent of the other.

12.7. Amendments/Modifications. 
This Agreement may be amended or modified only by a separate writing signed by both parties.

12.8. Force Majeure. 
Arcalea shall not be held liable for any delay or failure in the performance of its obligations under this Agreement from any cause beyond its reasonable control, including acts of God, acts of civil or military authority, delay or failure to receive any required government approvals, embargoes, pandemics, epidemics, war, terrorist acts, riots, strikes, fires, explosions, earthquakes, floods, power blackouts affecting facilities, or delays caused by Client’s inability to secure the proper infrastructure or technical environment for Services.

12.9. Conflicting Terms.
If there is an inconsistency or discrepancy between these Terms and Conditions and any Quote or any other Project-related agreement, the provisions of these Terms and Conditions shall control, unless the Quote or other Project-related agreement expressly amends or disclaims the conflicting language.

12.10. Waiver.
A waiver by either party of any term or condition of this Agreement in one or more instances must be signed in writing and will not constitute a permanent waiver of the term or condition or any other term or condition of this Agreement or a general waiver.

12.11. Entire Agreement. 
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements between the parties concerning the subject matter hereof.