This MASTER SERVICES AGREEMENT (this “MSA”), is made and entered in by Client and Applied Visions, Inc., a New York State corporation, having a principal place of business at 6 Bayview Avenue, Northport, NY 11768 (hereinafter “AVI”).
TERM AND TERMINATION
1.1 Term This MSA will become effective on the date first shown above and will continue in effect through the completion of each Statement of Work (as described in Section 2.1 hereof).
1.2 Termination of Statements of Work Client may, at its sole option, terminate any Statement of Work, or any portion thereof, with immediate effect, upon giving written notice. Upon receipt of such notice, AVI shall advise Client of the extent to which performance has been completed through such date, and shall collect and deliver to Client whatever work product then exists in the manner requested by Client. AVI shall be paid for all work performed through the date of termination and shall, if termination is solely for the convenience of Client, in addition receive a termination fee equal to the billing for services during the most recent ten (10) days or the remainder of the estimated billing for the unexpired portion of the Statement of Work(s), whichever is the lesser amount. Upon termination of a Statement of Work prior to Completion, all outstanding invoices, including Termination Fee shall immediately become due and payable.
1.3 Survival In the event of any termination of this MSA, Articles 5, 6, and 7 hereof shall survive and continue in effect.
SERVICES TO BE PERFORMED BY AVI
2.1 Statements of Work All work to be performed by AVI shall be documented in a Statement of Work or Statements of Work signed by authorized representatives of both parties. Each Statement of Work shall set forth, at a minimum, the work to be done, the number of AVI’s personnel to be assigned to Client’s work, the duration of each individual’s assignment, and the fees for the work to be performed. AVI shall have the right to accept or decline any proposed Statement of Work.
2.2 Method of Performing Services AVI, in conjunction with its personnel, will determine the method, details, and means of performing the work to be carried out for Client. Client shall have no right to, and shall not, control the manner or determine the method of accomplishing such work. Client may, however, require AVI’s personnel to observe at all times the security and safety policies of Client. In addition, Client shall be entitled to exercise a broad general power of supervision and control over the results of work performed by AVI to ensure satisfactory performance. This power of supervision shall include the right to inspect, stop work, make suggestions or recommendations as to the details of the work, and request modifications to the scope of the Statement of Work.
2.3 Assignment of Personnel Client may interview the personnel AVI assigns to Client’s work. If Client determines that such personnel are not appropriate for the work based on their specific or general skills or their background and experience, AVI shall make a reasonable effort to assign other qualified personnel.
2.4 Scheduling AVI will try to accommodate work schedule requests of Client to the extent possible. Should any personnel of AVI be unable to perform scheduled services because of illness, resignation, or other causes beyond AVI’s reasonable control, AVI will replace such personnel within a reasonable time.
2.5 Reporting Client will advise AVI of the individuals to whom AVI’s manager will report progress on ongoing work. Where Statement of Work(s) call for some or all work to be performed at Client’s site, Client and AVI shall develop appropriate administrative procedures for managing such work. Client shall periodically prepare an evaluation of the work performed by AVI for submission to AVI.
2.6 Place of Work AVI’s personnel will perform work for Client at AVI or at Client’s premises, as mutually determined. If work is to be performed at Client’s premises, Client agrees to provide working space and facilities, and any other services and materials AVI or its personnel may reasonably request in order to perform the work. Client recognizes that there may be a need to train AVI’s personnel in the unique procedures used at Client’s location. When DocuSign Envelope ID: 7C32E35C-8422-4C16-BDDE-4058884044CB DocuSign Envelope ID: 0E86A316-C8E2-4B4D-9021-5297A1B0C6B7 AVI – Tic Tox Master Services Agreement Page 2 of 5 Client determines that such training is necessary, Client shall, unless otherwise agreed in writing, pay AVI for its personnel’s training time.
3.1 Rates All work performed by AVI shall be pursuant to either a Firm Fixed Price Statement of Work or a Time and Materials Statement of Work. The current schedule of fees for work performed by AVI under a Time and Materials Statement of Work shall be set forth as part of each Statement of Work. Unless otherwise stated, AVI reserves the right to change such schedule for any Time and Materials Statement of Work upon at least sixty (60) days advance notice or at any time for any new Statement of Work or modified portion of an existing Statement of Work. Daily rates are for days of eight (8) hours of work. Any absences for lunch and other breaks are excluded from billable time. Billable days shall be calculated by dividing hours worked during the billing cycle by eight (8).
3.2 Estimates (Time and Materials Contracts) Estimates of total fees for Time & Materials projects may be provided in a Statement of Work, but AVI does not guarantee such estimates. AVI will, however, notify Client as soon as possible if it will exceed the estimate, and Client may then terminate the project and pay only for services actually rendered if Client so chooses. If actual work exceeds estimate by more than fifteen percent (15%), the Termination Fee shall be waived.
3.3 Invoices AVI shall submit invoices to Client for the services furnished and other authorized expenses incurred hereunder. At AVI’s option, invoices may be delivered either by mail or e-mail.
3.4 Date for Payment of Compensation Client shall pay each invoice in full within fifteen (15) days after receipt unless otherwise stipulated in an applicable Statement of Work. AVI may, at its option, stop work hereunder and reassign resources to other projects while Client is in default of the payment terms. Upon Client bringing its account current, AVI shall resume work hereunder as soon as resources can again be made available.
3.5 Expenses Except as otherwise agreed in this MSA or the applicable Statement of Work, AVI shall be responsible for all costs and expenses incident to the performance of services for Client, including all costs incurred by AVI to do business.
TREATMENT OF AVI’s PERSONNEL
4.1 Compensation of AVI’s Personnel AVI shall bear sole responsibility for payment of compensation to its personnel. AVI shall pay and report, for all personnel assigned to Client’s work, federal and state income tax withholding, social security taxes, and unemployment insurance applicable to such personnel as employees of AVI. AVI shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such personnel may be entitled. AVI agrees to defend, indemnify, and hold harmless Client, Client’s officers, directors, employees and agents, and the administrators of Client’s benefit plans, from and against any claims, liabilities, or expenses relating to such compensation, tax, insurance, or benefit matters; provided that Client shall (1) promptly notify AVI of each such claim when and as it comes to Client’s attention; (2) cooperate with AVI in the defense and resolution of such claim; and (3) not settle or otherwise dispose of such claim without AVI’s prior written consent, such consent not to be unreasonably withheld. Client shall not, without AVI’s prior written consent, offer AVI’s personnel any compensation, whether in the form of salary, overtime payment, incentives or bonuses of any kind, gifts, or payment in kind.
4.2 Compensation of AVI Client agrees to keep the Compensation Terms of this MSA and any Statements of Work issued hereunder confidential. Such terms shall not be disclosed to AVI employees or third parties.
4.3 Worker’s Compensation Insurance Notwithstanding any other worker’s compensation or insurance policies maintained by Client, AVI shall procure and maintain worker’s compensation coverage sufficient to meet the statutory requirements of every state in which AVI’s personnel are engaged in Client’s work.
4.4 AVI’s Agreements with Personnel AVI shall obtain and maintain in effect written agreements with each of its personnel who participate in any of Client’s work under any Statement of Work. Such agreements shall contain terms sufficient for AVI to comply with all provisions of this MSA, and shall confirm that such personnel shall have no status as employees of Client and no claim under any Client benefit plan.
4.5 State and Federal Taxes As neither AVI nor its personnel are Client’s employees, Client shall not take any action or provide AVI’s personnel with any benefits or commitments inconsistent with any of such undertakings by AVI. In particular:
- Client will not withhold FICA (Social Security) from AVI’s payments
- Client will not make state or federal unemployment insurance contributions on behalf of AVI or its personnel
- Client will not withhold state and federal income tax from payment to AVI
- Client will not make disability insurance contributions on behalf of AVI
- Client will not obtain worker’s compensation insurance on behalf of AVI or its personnel
INDEPENDENT CONTRACTOR STATUS
5.1 Intention of Parties It is the intention of the parties that AVI be an independent contractor and not an employee, agent, joint venture partner, or partner of Client. Nothing in this MSA shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either AVI or any employee or agent of AVI.
5.2 Nonexclusive AVI shall retain the right to perform work for others during the terms of this MSA. Client shall retain the right to cause work of the same or a different kind to be performed by its own personnel or other contractors during the term of this MSA.
INTELLECTUAL PROPERTY RIGHTS
6.1 Confidentiality AVI shall maintain in strict confidence, and shall use and disclose only as authorized by Client, all information of a competitively sensitive or proprietary nature that it receives in connection with the work performed for Client pursuant to each Statement of Work. AVI shall require its personnel to agree to do likewise. Client shall take reasonable steps to identify for the benefit of AVI and its personnel any information of a competitively sensitive or proprietary nature, including by using confidentiality notices in written material where appropriate. These restrictions shall not be construed to apply to (1) information generally available to the public; (2) information released by Client generally without restriction; (3) information independently developed or acquired by AVI or its personnel without reliance in any way on other protected information of Client; or (4) information approved for the use and disclosure of AVI or its personnel without restriction. Notwithstanding the foregoing restrictions, AVI and its personnel may use and disclose any information (1) to the extent required by an order of any court or other governmental authority or (2) as necessary for it or them to protect their interest in this MSA, but in each case only after Client has been so notified and has had the opportunity, if possible, to obtain reasonable protection for such information in connection with such disclosure.
6.2 Ownership of Work Product With respect to the Work Product created hereunder except as set forth below, AVI hereby grants to Client 100% and sole ownership of the Work Product as works-for-hire, or if same is not deemed a work-for-hire, then (except as set forth below) AVI hereby conveys, assigns, sells and grants to Client 100% of all intellectual property rights of any kind and nature and rights of ownership and use of the Work Product inclusive of any copyrights or patents arising therein and thereto, provided in each case that ownership shall be transferred or grant of rights made only upon the receipt of payment in full by AVI for Work Product so transferred. Notwithstanding the foregoing it is understood and agreed that AVI shall retain all rights in and to all intellectual property rights in any Work Product, including without limitation, designs, methodologies and content, which were created, owned, acquired, or licensed by AVI or by AVI’s agents, consultants or employees prior to the creation of the Work Product or which were or will be created, owned, acquired, or licensed by AVI or AVI’s agents, consultants or employees outside the scope of the services provided to Client. To the extent that part or all of such material forms a part of any material provided by AVI to Client, AVI hereby grants to Client a perpetual, non-exclusive royalty-free worldwide license to use such intellectual property rights therein for use solely for Client’s own business, provided that such license shall be only to the extent that AVI has acquired the right to grant such license without becoming liable to pay compensation to others because of such grant. Client agrees that it shall not assign any rights in such license and that it shall not reverse engineer any intellectual property subject to such license.
In addition, AVI shall own preliminary versions of Work Product not specific to Client or the Client project not incorporated into the final versions of the Work Product, and AVI will own any concepts, ideas, methodologies or approaches developed by AVI which are of general applicability and which are not specific to the Work Product, provided that the ownership and use of such preliminary versions, concepts, ideas, methodologies or approaches does not infringe (i) any DocuSign Envelope ID: 7C32E35C-8422-4C16-BDDE-4058884044CB DocuSign Envelope ID: 0E86A316-C8E2-4B4D-9021-5297A1B0C6B7 AVI – Tic Tox Master Services Agreement Page 4 of 5 copyright of Client except the Work Product made part of Client’s product, (ii) any other proprietary right of Client not derived from the Work Product, or (iii) any obligation of confidentiality of AVI to Client.
Furthermore, Client hereby grants to AVI a nonexclusive, nontransferable license, to use the Work Product and the technology embodied therein without any representation or warranty whatsoever as to title or otherwise; provided, however, that AVI shall not be permitted at any time after the date hereof to use such license to perform services for, or provide any products to, any business entity, organization or individual engaging in a business substantially in competition with Client.
6.3 Rights to Reference AVI shall have the right to reference the work performed hereunder in the promotion of its services provided none of the provisions of Section 6.1 of this Agreement are violated. Client agrees to allow AVI to use Client’s company name in printed and electronic marketing and advertising materials subject, unless otherwise directed by the Client.
HIRING OF AVI’s PERSONNEL
7.1 Additional Value from Hiring Client acknowledges that AVI provides a valuable service by identifying and assigning personnel for Client’s work. Client further acknowledges that Client would receive substantial additional value, and AVI would be deprived of the benefits of its work force, if Client were to solicit or recruit and directly hire AVI’s personnel after they have been introduced to Client by AVI.
7.2 No Hiring Without Prior Consent Without the prior written consent of AVI, Client shall not solicit or recruit and hire any personnel of AVI who are or have been assigned to perform work hereunder until one (1) year after the completion of the last Statement of Work in effect between the parties.
7.3 Hiring Fee In the event that Client solicits or recruits and hires any personnel of AVI who are or have been assigned to perform work for Client, Client shall pay AVI, within one (1) year of the date of such hiring, an amount equal to twenty-five percent (25%) of the total first-year compensation Client pays such personnel as a fee for the additional benefit obtained by Client.
8.1 Disclaimer AVI DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY ITS PERSONNEL OR THE RESULTS OBTAINED FROM THEIR WORK, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL AVI BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES, OR FOR ACTS OF NEGLIGENCE THAT ARE NOT INTENTIONAL OR RECKLESS IN NATURE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Total Liability Client agrees that AVI’s liability hereunder for damages, regardless of the form of action, shall not exceed the total amount paid for services under the applicable Statement of Work.
8.3 Force Majeure AVI shall not be liable to Client for any failure or delay caused by events beyond AVI’s control, including, without limitation, Client’s failure to furnish necessary information, sabotage, failures or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials, or equipment, or technical failures.
8.4 Data Security AVI shall not be liable for any consequences of unauthorized access to software programs once delivered to Client, or to the databases connected thereto. This section 8.4 shall not be construed so as to limit AVI’s liability for unauthorized access or use by AVI personnel whether before or after delivery of the Work Product to Client.
9.1 Notices Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraph of this MSA, but each party may change such address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two days after mailing.
9.2 No Discrimination AVI agrees that in the performance of this MSA it will not discriminate or permit discrimination against any person or group of persons on the grounds of sex, race, color, disability, religion, or natural origin in any manner prohibited by the laws of the United States.
9.3 Insurance To the extent that AVI’s personnel may perform work at Client’s premises, Client shall maintain comprehensive general liability insurance, including broad form property damage coverage, with limits of at least $500,000 combined single limit for personal injury and property damage for each occurrence.
9.4 Entire Agreement of the Parties This MSA supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services by AVI for Client and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement, or promise not contained in this MSA shall be valid or binding. Any modification of this MSA will be effective only if it is in writing signed by both parties.
9.5 Partial Invalidity If any provision in this MSA is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
9.6 Parties in Interest This MSA is enforceable only by AVI and Client. The terms of this MSA are not a contract or assurance regarding compensation, continued employment, or benefit of any kind to any of AVI’s personnel assigned to Client’s work, or any beneficiary of any such personnel, and no such personnel, or any beneficiary thereof, shall be a third-party beneficiary under or pursuant to the terms of this MSA.
9.7 Governing Law This MSA will be governed by and construed in accordance with the laws of the State of New York.
9.8 Successors This MSA shall inure to the benefit of, and be binding upon, AVI and Client, their successors and assigns.
9.9 Headings Captions or headings are for convenience only and in no way define, limit or describe the scope of this contract and shall not be considered in the interpretation of this contract or any provision hereof.
Revised on: June 2, 2023