Master Services Agreement
This Master Services Agreement (the “Agreement”) is made and entered into between VIKARA HEALTH SOLUTIONS, LLC (“Vikara Health Solutions” or “VHS”) and the customer (“Customer”) that has executed a Statement of Work (“Statement of Work” or "SOW”) with VHS and this Agreement shall govern the Services (as defined herein) provided by VHS for the Client as referenced herein and in such SOW.
BY EXECUTING A SOW, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN THE SOW (“SOW EFFECTIVE DATE”), AND AGREES TO AND ACCEPTS SUCH TERMS AND CONDITIONS AS OF THE SOW EFFECTIVE DATE. IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, CUSTOMER REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF CUSTOMER DOES NOT AGREE WITH THIS AGREEMENT, CUSTOMER MUST NOT EXECUTE THE SOW.
Section 1. Services and Deliverables
The Services to be provided hereunder (the "Services") and any work product to be delivered hereunder (the "Deliverables") shall be as set forth in a Statement of Work executed by Customer and Vikara Health Solutions.
Section 2. Fees, Expenses
Customer shall pay Vikara Health Solutions the professional fees and the related expenses in accordance with the Statement of Work, payable upon receipt of an invoice therefor. If Customer disputes any portion of an invoice, Customer shall notify Vikara Health Solutions in writing within ten (10) business days of receipt of such invoice, specifying the amount in dispute and the basis for the dispute in reasonable detail. The undisputed portion of the invoice shall be due and payable in accordance with the terms herein. The parties shall work in good faith to resolve any disputed amounts promptly, and any resolved amounts shall be paid within five (5) business days after resolution. Failure by Customer to make any payment when due shall result in the imposition of an interest charge on any unpaid amount at a rate equivalent to the lesser of (i) one and one-half percent (1 1/2%) per month, or (ii) the highest rate allowable by law. Customer shall pay all sales, use, transfer, or other taxes, whether federal, state, or local, however designated, with the exception of any taxes based upon the income of Vikara Health Solutions, which are levied or imposed by reason of this Agreement or Customer's use of the Deliverables.
Section 3. Customer Responsibilities
Customer shall
(i) fulfill the customer responsibilities as outlined in the SOW, and ensure that all assumptions are accurate;
(ii) provide Vikara Health Solutions with reliable, accurate and complete information, as required; and
(iii) make timely decisions and obtain required management approvals. Customer shall remain responsible for backing up its proprietary data. In addition, Vikara Health Solutions shall be entitled to rely on all Customer decisions and approvals, including those made independently of this Agreement and/or prior to its execution by the parties. Nothing in this Agreement shall require Vikara Health Solutions to evaluate, advise on, modify, confirm, or reject such decisions and approvals, except as expressly agreed to in the Statement of Work.
Section 4. Confidentiality
With respect to this Agreement “Confidential Information” means any information supplied in connection with this Agreement that is designated by the disclosing party as confidential, as well as all information that a reasonable person would understand to be confidential given the nature of the information and the circumstances of its disclosure, even if not expressly designated as such by the disclosing party. The recipient agrees to: (i) protect the Confidential Information in a reasonable and appropriate manner and in accordance with applicable professional standards; (ii) use the other party's Confidential Information only to perform its obligations under this Agreement; and (iii) reproduce the other party's Confidential Information only as required to perform its obligations under this Agreement.
This section shall not apply to information which is (i) publicly known, (ii) already known to the recipient; (iii) disclosed to a third party to the recipient without restriction; (iv) independently developed by the recipient; or (v) disclosed pursuant to legal requirement or order. Subject to the foregoing, Vikara Health Solutions may disclose Customer's Confidential Information to its subcontractors and affiliates for the purpose of providing the Services and Deliverables.
Section 5. Deliverables
Customer may use, copy, distribute internally, and modify the Deliverables, but solely for its own internal business purposes. Customer shall not, without Vikara Health Solutions' prior written consent, disclose to a third party, publicly quote, or make reference to the Services and/or Deliverables. Vikara Health Solutions shall retain all right, title and interest in and to: (i) the Services and/or Deliverables, including but not limited to all patent, copyright, trademark and other intellectual property rights therein; and (ii) all methodologies, processes, techniques, ideas, concepts, trade secrets and know-how embodied in the Services and/or Deliverables or that Vikara Health Solutions may develop or supply in connection with this Agreement (the "Vikara Health Solutions Knowledge"). Subject to the confidentiality restrictions contained in Section 4, Vikara Health Solutions may use the Deliverables and the Vikara Health Solutions Knowledge for any purpose.
Section 6. Modifications
At any time during the term of this Agreement, either party may request a modification to the Statement of Work {"Modification"). If Customer requests a Modification, Customer will notify Vikara Health Solutions describing in detail the requested Modification. After receipt of such notice, Vikara Health Solutions will notify Customer of the effect of the proposed Modification on pricing and scheduling (a "Modification Estimate"). If Vikara Health Solutions requests a Modification, it will notify Customer describing in detail the Modification requested and include a Modification Estimate. Within a reasonable period after delivery to Customer of any Modification Estimate, the parties will negotiate regarding the proposed Modification (a "Change Request"). All Change Requests must be signed by an authorized representative of each party in order to be effective.
Section 7. Warranty
(a) Vikara Health Solutions warrants that the Services shall be performed with reasonable care in a diligent and competent manner. Vikara Health Solutions' sole obligation shall be to correct any non-conformance with this warranty, provided that Customer gives Vikara Health Solutions notice within thirty (30) days after the
Services are performed or successful completion of the acceptance test plan, if applicable.
(b) Vikara Health Solutions does not warrant as to, and is not responsible for, any third-party products or services. Customer's sole and exclusive rights and remedies with respect to any third-party products or services are against the third-party vendor and not against Vikara Health Solutions.
(c) THIS SECTION 7 IS VIKARA HEALTH SOLUTIONS' ONLY WARRANTY CONCERNING THE SERVICES AND DELIVERABLES AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE.
Section 8. Risk Allocation
(a) VIKARA HEALTH SOLUTIONS' TOTAL LIABILITY RELATING TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES VIKARA HEALTH SOLUTIONS RECEIVES HEREUNDER FOR THE PORTION OF THE WORK GIVING RISE TO LIABILITY, AND SHALL NOT INCLUDE ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES OR LOSS (NOR ANY LOST PROFITS, SAVINGS, OR BUSINESS OPPORTUNITY).
(b) As Vikara Health Solutions is performing the Services and providing the Deliverables solely for the benefit of Customer, Customer will indemnify Vikara Health Solutions, its affiliates managers members', principals and personnel against all costs, fees, expenses, damages and liabilities (including defense costs) associated with any third party claim, relating to or arising as a result of the Services, Customer's use of the Deliverables, or this Agreement, except to the extent resulting from Vikara Health Solutions' breach of Section 7.
(c) Vikara Health Solutions will indemnify Customer against any damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property incurred while Vikara Health Solutions is performing the Services and to the extent caused by the grossly negligent or willful acts of Vikara Health Solutions' personnel or agents in performing the Services, provided that Customer promptly notifies Vikara Health Solutions of the claim, provides Vikara Health Solutions with full authority to defend or settle the claim and provides Vikara Health Solutions with information reasonably necessary to defend the claim.
(d) The provisions of this Section 8 are intended to apply in all circumstances, regardless of the grounds or nature of any claim asserted (including contract, statute, any form of negligence, whether of Customer, Vikara Health Solutions, or others, tort, strict liability or otherwise) and whether or not the party seeking indemnification was advised of the possibility of the damage or loss asserted, to the extent not contrary to applicable law.
(e) Any action against Vikara Health Solutions must be brought within eighteen (18) months after the cause of action arises.
Section 9. Personnel
(a) Vikara Health Solutions shall use reasonable efforts to comply with Customer's request for specific individuals to perform Services, but Vikara Health Solutions shall have the authority for assigning and re-assigning its personnel (including subcontractors) to perform the Services.
{b) During the term of this Agreement, and for a period of six (6) months following the expiration or termination thereof, neither party will actively solicit the employment of the personnel of the
other party involved directly with procuring or providing Services or Deliverables. In addition, during such period, neither party shall make, publish, or communicate to any person or entity any disparaging or defamatory statements, whether written or oral, about the other party, its business, services, products, or personnel, except as required by law or in connection with legal proceedings.
Section 10. Termination
(a) This Agreement is effective as of the applicable SOW Effective Date and will continue until terminated in accordance with this Section 10. The Services will commence on the date set forth in the applicable SOW and shall remain in effect until terminated by either party, or as otherwise set forth in the SOW.
(b) Vikara Health Solutions may, at any time, in its sole discretion, make changes to this Agreement, and any changes to this Agreement will become effective upon Customer’s execution of a new or additional SOW in which the new terms of this Agreement will be incorporated. Vikara Health Solutions will post the updated Agreement on the “last updated” date listed above.
(c) This Agreement may be terminated at any time by either party upon thirty (30) days written notice to the other.
(d) Customer shall pay Vikara Health Solutions for all Services rendered, Deliverables provided, and expenses incurred as of the date of termination, and shall reimburse Vikara Health Solutions for all reasonable costs associated with any termination.
(e) The parties shall first attempt to resolve any dispute or alleged breach internally by escalating it through management and, prior to pursuing litigation, use a mutually acceptable alternative dispute resolution process.
Section 11. General
(a) This Agreement, together with the Statement(s) of Work, constitutes the entire understanding and agreement between Customer and Vikara Health Solutions with respect to the Services and Deliverables, supersedes all prior oral and written communications. If there is a conflict between this Agreement and the terms of any Statement of Work, this Agreement shall govern, unless specifically otherwise agreed by the parties in the Statement of Work.
(b) Neither party shall use the other party's name, trademarks, service marks, logos, trade names and/or branding without such party's prior written consent. Notwithstanding anything herein to the contrary, Vikara Health Solutions may reference or list Customer's name and/or a general description of the Services, Deliverables, or project. Customer also agrees that upon reasonable prior notice from Vikara Health Solutions, Customer will be willing to provide a reference for Vikara Health Solutions (e.g., in the form of analyst telephone calls, Customer
telephone calls, presentations, and the like).
(c) Vikara Health Solutions' obligations hereunder shall be excused in the event of labor disturbances, riots, acts of war or terrorism, fires, power failures, governmental acts, acts of God, fires, floods, or any other cause beyond its reasonable control.
(d) This Agreement may not be assigned or otherwise transferred without the prior express written consent of the other party which will not be unreasonably withheld; provided that Vikara Health Solutions may assign this Agreement to a third party which assumes all of Vikara Health Solutions' obligations hereunder pursuant to a sale of its business, to an affiliate or use subcontractors to provide Services or Deliverables. For avoidance of doubt, Customer acknowledges and agrees that Vikara Health Solutions may subcontract any of its obligations hereunder.
(e) Any notices given pursuant to this Agreement shall be in writing, delivered to the address set forth in the Statement of Work, and shall be considered given when received.
(f) No term of this Agreement shall be deemed waived, and no breach of this Agreement excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent.
(g) If any term or provision of this Agreement is determined to be illegal or unenforceable, such term or provision shall be deemed stricken, and all other terms and provisions shall remain in full force and effect.
(h) This Agreement does not make either party an agent or legal representative of the other party and does not create a partnership or joint venture. Each party is an independent contractor and principal for its own account.
(i) Sections 4 through 11 of this Agreement, together with the obligation to make payment for Services rendered, shall survive the expiration or termination of this Agreement.
(j) The internal laws of the State of Illinois shall govern this Agreement without regard to conflicts of law principles, and any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Cook County, Illinois, and each party hereby consents to the personal jurisdiction of such courts.
(k) Each party shall be responsible for complying with all applicable laws, rules and regulations, including but not limited to data protection laws, rules and regulations. However, Customer acknowledges that:
(i) Vikara Health Solutions and Customer may correspond or convey documentation via Internet e-mail unless Customer expressly requests otherwise,
(ii) neither party has control over the performance, reliability, or availability of such email communication systems, and may include e-mails containing confidential, proprietary personal information (PII), protected health information (PHI), and
(iii) Vikara Health Solutions shall not be liable for any loss, damage, expense, harm or inconvenience resulting from the loss, delay, interception, corruption, or alteration of any Internet e-mail due to any reason beyond Vikara Health Solutions' reasonable control.