MASTER SERVICES & NON-SOLICITATION AGREEMENT
THIS MASTER SERVICES & NON-SOLICITATION AGREEMENT (the “Agreement”), is effective as of the potential client, between Rock Mountain Technology Services, LLC, DBA Tech Legion, a Utah Limited Liability Company (the “Company”), an independent contractor, and potential client, an organization engaging the services of the Company (the “Undersigned”). Collectively, the Company and the
Undersigned will hereinafter be referred to as the “Parties”.
RECITALS
WHEREAS, the Undersigned desires to solicit the services of the Company, and the Company is willing to offer said services at an agreed-upon rate;
WHEREAS, the Company desires to provide certain IT services and other business activities, and the Undersigned desires to accept certain IT services and other business activities in accordance with the service agreement (“Proposal”) heretofore signed;
WHEREAS, the Parties have agreed as to the terms of the Proposal, including rate and duration, and the Proposal is hereby incorporated into this Agreement by reference herein;
WHEREAS, the Proposal is incorporated herein by reference only, and the Agreement is not intended to nor does it cause any alteration to the terms of the Proposal unless the Parties agree to a material change and witness such intention;
NOW THEREFORE, in consideration of the mutual covenants contained herein and as an inducement to the Company to offer services to the Undersigned, the Parties hereto do hereby mutually agree and covenant as follows:
AGREEMENT
Article 1. NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES
1.1. The Company’s Business. As part of its business structure, the Company provides IT and other related business services to its clientele, including the Undersigned. The Company, through its employees, handles both on-site and off-site technical issues of its clientele, including the Undersigned. As contemplated in the Proposal, the Company may send Company employees to the Undersigned’s location to diagnose, set up, solve, and or implement technical solutions according to the needs of the Undersigned. The Company may virtually connect to the Undersigned’s network to diagnose, set up, solve, and or implement technical solutions according to the needs of the Undersigned.
1.2. The Company’s Employees. Both parties hire and train its employees in highly technical areas in order to fulfill a commitment to excellence and maintain exceptional service. The Company does so through great expense, both monetary and time-labor, and continues ongoing training for its employees. Both parties hereby acknowledge that process and further accept the Proposal with each other because of the expertise of the other party and its employees.
1.3. Confidential Information. Both parties expressly acknowledge that each party now possesses or will possess information of a confidential or secret nature in both written and unwritten form that has unique commercial value (“Confidential Information”). For purposes of this Agreement, Confidential Information includes, without limitation, trade secrets, processes, methods, computer programs or databases, data, know-how, inventions, improvements, techniques, marketing plans, product plans, strategies, and forecasts. Each party expressly acknowledges that engaging with each other creates a relationship of trust and confidence between both parties with respect to the Confidential Information and covenants not to use, disclose, disseminate, re-brand, or solicit the use of said Confidential Information without the prior written consent of the other party.
1.4. Term. This Agreement shall commence upon dual execution and continue for one (1) year, automatically renewing each year for additional one-year terms unless terminated according to the provisions herein. The parties agree that the cost of services shall remain fixed for the first year, after which it may be renegotiated to account for numerous economic factors. However, if there is a change in responsibilities, duties, or scope of work, compensation may be renegotiated by mutual approval to reflect adjustments in workload or duties. All previous agreements, whether oral or written, between the Undersigned and the Company regarding service provisions are hereby rescinded and rendered null and void.
- As per the terms of the Proposal, the relationship between the Parties may one day be terminated. The Undersigned has obligations in the event of such a termination of the relationship. At said time of termination, the terms of this Agreement remain, and all obligations regarding non-disclosure and non-solicitation will remain valid for as long as each other remains in business. Further, should either party elect to start a new venture, the other party hereby expressly acknowledges that this Agreement, in particular non-disclosure and non-solicitation, will follow him/her personally and survives the termination/expansion of any business venture undertaken.
- To terminate this Agreement, the Undersigned must provide written notice of termination at least 30 days prior to the end of the Agreement’s Term. If no such notice is provided, the Agreement will automatically renew for an additional one-year term. Should the Undersigned wish to terminate the Agreement for any reason deemed justified, a “three-strike” process must be
followed. Under this process, the Company will have 30 days per “strike” to address and resolve each stated cause for termination before the Agreement can be ended. Part of this process includes that the Undersigned must notify the Company within five (5) business days of a perceived cause for termination. If the Company satisfactorily addresses the reasons deemed justifiable for
termination, the Undersigned may not proceed with canceling the Agreement.
- If the Agreement is terminated for any reason and the Undersigned does not follow the “three-strike” process, the Undersigned shall be responsible for paying the remaining cost of all products and services through the end of the Agreement’s Term.
1.5. Company’s Duties. During the term of this Agreement, the Company agrees to perform the proposed services for the Undersigned with diligence and on a commercially reasonable best-efforts basis, applying its abilities, knowledge, resources, and skills. The Company’s goal is to support the Undersigned in maintaining and enhancing its technology systems and aiming to improve their overall functionality and performance. The services outlined in this agreement are intended to support, maintain, and enhance the operational data network systems for the Undersigned. Additionally, the Company aims to respond to emerging issues, sustain system functionality, and facilitate the advancement of the Undersigned’s network systems. This agreement does not cover elevating the Undersigned’s systems to a specified level or state of operation. As such, it does not include any claims about current system levels or states, nor does it guarantee any future operational levels or states for data, equipment, or software serviced by the Company.
1.6. Undersigned’s Duties. During the term of this Agreement, the Undersigned agrees to pay for all products, time, materials, and services required for the Company to perform its obligations. The Undersigned agrees to inform the Company of any failure to fulfill its obligations and duties within five (5) business days of the occurrence. The Undersigned acknowledges that this Agreement does not replace any proprietary warranties or support packages for vendors, software, or equipment independently owned and paid for by the Undersigned. However, the Company will utilize its expertise to collaborate with these independent technology services and packages to the best of the Company’s ability.
1.7. Billing Matters. Both parties agree that the Company’s time, expertise, and skills constitute its labor billable services. Therefore, any contact between the Undersigned and the Company that aims to fulfill the Company’s duties is billable. This includes, but is not limited to, on-site and remote work, such as telephone and written communications, systems design, project implementation, meetings, briefings, reports, instruction, updates, purchases, research, system maintenance, and training. The Company retains sole discretion to designate any contact, work, time, or service as non-billable. Both parties further agree to operate in “good faith,” waiving the need for signed acknowledgments for services rendered or time spent, as well as for pickup or delivery of equipment, products, or materials. Upon request, the Company will provide reasonably available documentation to verify time entries. Both parties agree that the Company will bill for all products and materials delivered or deployed on behalf of the Undersigned.
- Service Time Increments. Telephone communication, remote work, and written contact (including text, mail, or email) will be rounded and billed in fifteen (15)-minute increments. On-site visits will be billed at a minimum of one (1) hour and in fifteen (15) minute increments thereafter. Any work performed beyond the contracted monthly hours will be billed at 125% of the hourly contract rate. Unused hours at month’s end will be forfeited unless the Undersigned notifies the Company of its desire to retain said hours in writing within 30 days of the invoice receipt. Hours retained by following the aforementioned process will expire after 90 days.
- Use of Time. The Company retains sole discretion over the allocation of its time and efforts unless the Undersigned specifies otherwise. The Company also reserves the right to accept or decline any work requests from the Undersigned. All applicable
work will be provided on a best-effort basis as outlined in this Agreement.
- Invoices and Payment. The Company will issue monthly invoices to the Undersigned for services rendered, products deployed or delivered, and any materials purchased through the Company. Invoices are due within fifteen (15) days of the invoice
date (“net 15” terms). Any amounts disputed in good faith may be withheld, provided the remaining balance is paid by the due date. Written notification of the disputed amount, including reasons for withholding, must be provided to the Company within fifteen (15) days of receiving the invoice. Both parties will work in good faith to promptly resolve disputes, with any resolved amounts payable
within fifteen (15) days of resolution. If an undisputed invoice is not paid within thirty (30) days of issuance, a late fee of five percent (5%) of the total, including taxes, will be added monthly until the invoice is paid in full. Should collection services be necessary, the Undersigned agrees to cover all associated fees, including collection and attorney’s fees. For any returned checks due to insufficient
funds or other issues, the Undersigned will pay a fee of $50.00 in addition to the outstanding balance.
Article 2. NON-SOLICITATION OF COMPANY’S EMPLOYEES
Each party hereby expressly recognizes the expertise of the other’s employees and covenants to not solicit any of each other’s employees for work not contemplated in the Proposal, including but not limited to private use of the employee by the either party or its affiliate; making offers to the employee in an attempt to lead said employee from the losing party and to the other party; requesting any information regarding the other party or its employees that is not contemplated by the Proposal and/or has not been authorized by the other party; attempting to engage the employee in “side work” or “moonlighting prospects” in which the employee would do work for the other party, or one of its affiliates, outside of the scope of the Proposal regardless of whether the employee would or would not receive additional compensation not expressly stated in the Proposal; any and all attempts to disenfranchise the employee from his/her employment relationship with that employee’s employer; making any attempt whatsoever, in any degree, to solicit work from the employee, either on a contractual basis, as party to a competitor of the Company, or through full-time employment.
Article 3. REMEDIES FOR BREACH
3.1. Liquidated Damages. If either party breaches its obligation as referenced in Article 2 of this Agreement and reincorporated by reference herein, the offending party shall pay the amount equivalent to: 1) two (2) years’ worth of the attached Proposal or 2) two (2) years’ worth of the labor portion of the most recent invoice received by the client or 3) the total amount of all labor charges to client over the past two (2) years. (whichever of the three is greater).
The Parties agree that quantifying losses arising from a breach of this Agreement is inherently difficult insofar as it is not commercially reasonable or feasible to assign an employee’s value to the other party given the expense, both monetary and time-labor, to train and present the employee as ready to represent either party’s business, including the Undersigned or Company. Further, both parties are extraordinarily detailed in its training so as to fulfill an excellent service commitment for its customers, and any solicitation to draw away employees from the offended party, whether successful or not, damages the offended party’s reputation and may require the other Company to provide non-monetary concessions to future clients.
The Parties stipulate that the agreed upon sum is not a penalty but rather a reasonable measure of damages based upon the offended party’s expertise in their respective industry and given the nature of the damage that may result from a breach of this Agreement.
3.2. Both parties agree that if the other party breaches any term of this Agreement, the offended party may seek out any other remedy provided at law or in equity, including the recovery of monetary damages, all of which shall be cumulative and not exclusive that:
- The remedy at law is inadequate, and the offended party is entitled to an injunction restraining such breach or threatened breach and that no bond or other security is required in obtaining such injunction; and
- If the offending party’s breach results in the offending party receiving remuneration or obtaining a right to remuneration, the offending party immediately remits that remuneration to the offended party and does hereby assign all of the offending party’s rights to such remuneration to the offended party.
Article 4. GENERAL PROVISIONS
The following provisions are integral parts of this Agreement:
4.1. Binding Agreement. This Agreement shall be binding upon and shall inure to the benefit of the successors, assigns, personal representatives, heirs, and legatees of the respective parties hereto and any entities resulting from the reorganization, consolidation, or merger of any party hereto.
4.2. Captions. The headings used in this Agreement are inserted for reference purposes only and shall not be deemed to define, limit, extend, describe, or effect in any way the meaning, scope, or interpretation of any of the terms or provisions of this Agreement or the intent hereof.
4.3. Gender. As used herein, all pronouns shall include the masculine, feminine, neuter, singular, and plural thereof, wherever the context and facts require such construction.
4.4. Entire Agreement. This Agreement constitutes the final and entire Agreement with respect to the subject matter hereof and supersedes any prior written or oral agreements pertaining to the subject matter of this Agreement.
4.5. Survival. This Agreement shall survive the termination of the relationship between the Company and the Undersigned.
4.6. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, but all of which shall together constitute one and the same instrument. Digital copies of this Agreement are considered acceptable.
4.7. Severability. The provisions of this Agreement are severable, and should any provision hereof be void, voidable, unenforceable, or invalid, such void, voidable, unenforceable, or invalid provision shall not affect any other provision in this Agreement.
4.8. Waiver of Breach. Any waiver by any other party hereto or any breach of any kind or character whatsoever by the other party or parties, whether such be direct or implied, shall not be construed as a continuing waiver of or consent to any subsequent breach of this Agreement on the part of the other party or parties.
4.9. Cumulative Remedies. The several rights and remedies herein expressly reserved to each of the parties shall be construed as cumulative, and none of them shall be exclusive of, or in lieu or limitation of, any other right, remedy, or priority allowed by law.
4.10. Modifications. This Agreement may not be amended, nor may any rights hereunder be waived except by written Agreement of the parties.
4.11. Time of Essence. The parties agree that time is of the essence in the performance of all duties herein.
4.12. Attorneys’ Fees. The parties agree that should either party be determined by a court of competent jurisdiction to have been in breach of this Agreement, the non-breaching party is entitled to recover all costs and expenses, including reasonable attorneys and expert witness fees incurred by the party.
4.13. Notices. All notices required or permitted to be given hereunder shall be duly given if delivered or mailed by registered or certified mail, postage prepaid, addressed to the addressee as follows:
COMPANY:
Rock Mountain Technology Services, LLC
774 South 400 East
Orem, UT 84097
UNDERSIGNED:
Name:
Address:
City, State, Zip:
Any party shall have the right to specify in writing in the manner above provided another address to which subsequent notices shall be given. Any notice given hereunder shall be duly given as of the date hand delivered or mailed.
4.14. Exhibits. Each exhibit that may be attached hereto shall be incorporated into and be a part of this Agreement.
4.15. Recitals. The recitals and party identifications are incorporated into and shall be a part of this Agreement.
4.16. No Presumption. Should any provision of this Agreement require judicial interpretation, the Court interpreting or consulting the same should not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agents prepared the same, it being
acknowledged that all parties have participated in the preparation hereof and that each party acknowledges that he or she has had an adequate opportunity to read and study this Agreement, to consider it, and to consult with attorneys if he or she so desired.
4.17. Governing Law and Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively by its terms and by the laws of the State of Utah. The parties agree that in the event any action relating to or arising from this Agreement occurs, said state is hereby designated as jurisdiction and venue to hear such action. The parties hereby agree to bring any such action before the Courts of said state and, in addition, to submit themselves to the jurisdiction of the Courts of said state.
4.18. Further Assurances. Each party will do such acts and execute and deliver to any other party such additional documents or instruments as may be reasonably requested in order to effect the purposes of this Agreement and to better assure and confirm to the requesting party its rights, powers, and remedies under this Agreement.