MASTER SERVICES AGREEMENT
This Master Training and/or Consulting Services Agreement (the "Agreement ") is entered into by, as applicable, Ansible, Inc., a Delaware corporation (“Ansible”), and the individual or entity signing or electronically accepting this Agreement, or any document that references this Agreement (“Customer”).
Purpose. Customer wishes to hire Ansible to provide Customer with Services (as defined below), and Ansible wishes to provide such Services, on the terms and conditions set forth in this Agreement. For clarity, the scope of this Agreement does not include the purchase of Ansible’s Software Subscription Services, which may be purchased under a separate agreement.
In consideration of the mutual covenants set forth in this Agreement and intending to be legally bound, the parties agree as follows:
1. Obligations of the Parties. Ansible will provide certain training or consulting services to Customer (the "Services") as described in Statement(s) of Work ("SOW") signed by the parties that specifically reference this Agreement and the applicable Appendix (seen attached). Customer will (a) carry out its obligations under each SOW, (b) provide a safe and secure working environment for Ansible personnel while working on Customer’s premises, and (c) obtain any third party consents necessary to grant Ansible access to its software, hardware and systems. In the event that (x) Customer fails to timely fulfill its obligations under an SOW, and this adversely impacts Ansible’s delivery of Services, or (y) events outside of either party’s reasonable control cause a delay in or otherwise affect Ansible’s ability to perform its obligations, Ansible will be entitled to appropriate relief.
2. Payment and Taxes. Fees for the Services (the "Fees") are set forth in the applicable SOW. Fees are stated in United States Dollars, must be paid in United States Dollars, and are exclusive of out-of-pocket expenses. Customer will reimburse Ansible for reasonable expenses incurred in connection with the performance of the Services. All payments are non-refundable. Ansible will invoice Customer as set forth in each SOW. Customer will make payment within thirty (30) days of the date of the invoice. Ansible reserves the right to suspend or cancel performance of all or part of the Services and/or change its credit terms if payment has not been received within sixty (60) days of the invoice date.Fees are exclusive of any Taxes. Customer will pay to Ansible an amount equal to any Taxes arising from or relating to this Agreement or an SOW, including without limitation, sales, service, use or value-added taxes, which are paid by or are payable by Ansible. "Taxes" means any form of taxation, levy, duty, customs fee, charge, contribution or impost of whatever nature and by whatever authority imposed, including, without limitation, any fine, penalty, surcharge or interest, but excluding any taxes based solely on the net income of Ansible.
3. Ownership Rights. Customer will own all deliverables identified in an SOW as "Customer Materials;" provided that rights in software or tools of Ansible, or its Affiliates, and any improvements and derivative works thereof, will be owned by Ansible. Except for pre-existing Confidential Information subject to Section 6, any ideas, methods, concepts, know-how, inventions and improvements developed during the course of a SOW may be used by either party, without an obligation to account, in any way a party deems appropriate, including by or for itself or its clients or customers. Nothing in this Agreement will be understood to preclude or limit Ansible from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those delivered to Customer.
4. Term and Termination. This Agreement will commence on the Effective Date and continue for a term of one (1) year, or until the expiration of any SOW, whichever is longer, unless sooner terminated as provided in this Agreement. If either party materially breaches the terms of the Agreement and the breach is not cured within thirty (30) days after written notice, then the other party may terminate this Agreement at the end of the thirty (30) day period. Without prejudice to any other right or remedy of Ansible, in the event either party terminates an SOW, Customer will pay Ansible for all Services provided up to the effective date of termination. Either party may terminate this Agreement without cause, at any time when there are no SOWs outstanding. Sections 2, 3, 4, 5, 6, 9 and 11 of this Agreement will survive termination.
5. Limitation of Liability and Disclaimer of Damages. FOR ALL EVENTS AND CIRCUMSTANCES, A PARTY’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY SOWS, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNT THAT CUSTOMER PAID TO ANSIBLE UNDER THE MOST APPLICABLE SOW. THE FOREGOING LIMITATION DOES NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR AN SOW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER FOR: ANY CLAIM BASED UPON A THIRD PARTY CLAIM; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Confidentiality. The term “Confidential Information” shall include any information, whether tangible or intangible, including, but not limited to, techniques, discoveries, inventions, ideas, processes, software (in source or object code form), designs, technology, technical specifications, flow charts, procedures, formulas, concepts, any financial data, and all business and marketing plans and information, in each case which is maintained in confidence by the disclosing party (“Disclosing Party”) and disclosed to the other party (“Recipient”) hereunder. The failure by the Disclosing Party to designate any information as Confidential Information shall not give Recipient the right to treat such information as free from the restrictions imposed by this Agreement if the circumstances would lead a reasonable person to believe that such information is Confidential Information. Confidential Information does not include information which Recipient documents (a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public; (b) was rightfully in Recipient’s possession prior to disclosure by the Disclosing Party; (c) becomes rightfully known to Recipient, without restriction, from a source other than the Disclosing Party and without any breach of duty to the Disclosing Party; (d) is developed independently by Recipient without use of or reference to any of the Confidential Information and without violation of any confidentiality restriction contained herein; or (e) is approved by the Disclosing Party for disclosure without restriction, in a written document executed by a duly authorized officer of the Disclosing Party. Recipient shall hold the Confidential Information received from the Disclosing Party in strict confidence and shall not, directly or indirectly, disclose it, except as expressly permitted herein. Recipient shall have the right to disclose the Disclosing Party’s Confidential Information to Recipient’s employees, Affiliates and contractors, who have a “need to know” such information in connection with the exercise of rights and obligations hereunder. Such employees, Affiliates and contractors shall be bound by confidentiality obligations that are at least as protective of such Confidential Information as the terms and conditions of this Agreement. Recipient shall promptly notify the Disclosing Party upon learning of any misappropriation or misuse of Confidential Information disclosed hereunder. Notwithstanding the foregoing, Recipient shall be permitted to disclose Confidential Information pursuant to a judicial or governmental order, provided that Recipient provides the Disclosing Party reasonable prior notice, and assistance, to contest such order. “Affiliates” means an entity that is directly or indirectly controlled by or under common control with a party.
7. Representations and Warranties. Ansible represents and warrants that: (a) the Services will be performed in a professional and workmanlike manner by qualified personnel; and (b) it has the authority to enter into this Agreement. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
8. Governing Law/Consent to Jurisdiction. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the State of North Carolina without giving effect to the conflicts of laws provisions or the United Nations Convention on Contracts for the International Sale of Goods. Customer hereby consents to jurisdiction of the state or federal courts located in Durham County, North Carolina. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted.
9. Entire Agreement. There are no prior or contemporaneous, oral or written, representations, understandings or agreements that are not fully expressed in this Agreement, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer to place orders or otherwise effect transactions hereunder. No amendment, change order, waiver or discharge shall be valid unless it is in writing and signed by an authorized representative of the party against whom the amendment, change order, waiver or discharge is sought to be enforced. In the event of a conflict between this Agreement and an SOW, this Agreement will control, except to the extent that an SOW specifically states that it will supersede one or more provisions of this Agreement.
10. Miscellaneous. Notices must be in writing, and will be deemed given when delivered by hand or five (5) days after being sent using a method that provides for positive confirmation of delivery to the respective addresses indicated above; provided that any notice from Customer to Ansible includes a copy sent to: Ansible, Inc., Attention: General Counsel, 312 Blackwell Street, Suite 100, Durham, North Carolina 27701; Facsimile: 919-882-1310. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld; provided that Ansible may assign this Agreement to an Affiliate and either party may assign this Agreement pursuant to a merger or a sale of all or substantially all of such party’s assets or stock without the prior approval of the other party. Ansible may subcontract Services under an SOW to third parties or Affiliates without the prior approval of Customer. Neither party will be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control. Customer agrees not to solicit or hire any personnel of Ansible with whom Customer has had contact in connection with any SOW during the term of and for six (6) months after termination or expiration of the SOW; provided that Customer may hire an individual employed by Ansible who, without other solicitation, responds to advertisements or solicitations aimed at the general public. Ansible may supply Customer with technical data that may be subject to export control restrictions and Customer agrees to comply with all applicable export control restrictions. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement; provided, however, that if Sections 2 and 5 cannot be modified to be valid and enforceable, this Agreement, together with any SOW incorporating the terms of this Agreement, will be deemed invalid in their entirety. Ansible is an independent contractor and nothing will be construed to create an employment or agency relationship between Customer and Ansible. Each party will be solely responsible for payment of applicable taxes, deductions or other payments and benefits for its personnel. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
This Agreement is effective as of the latest of the two signatures on an Order or upon electronic acceptance by Customer (the “Effective Date”).
To the Master Training and/or Consulting Services Agreement (“Agreement”)
The Consulting Services shall be governed by the terms of the Agreement and this Appendix 2. Capitalized terms not defined in this Appendix 2 have the meanings ascribed to them in the Agreement.
Consulting Services consist of professional technical consulting services provided by an Ansible consultant (“Consultant”) who will assist Customer in its use of Ansible’s technology and services as described in a Statement of Work (“SOW”) attached to an Order.
Ansible may, at its sole discretion, choose to engage different consulting personnel (as it relates both to the type of Consultant or the individual) for different portions of the Consulting Services.
Should Customer wish to purchase Consulting Services, an Order and/or SOW shall be prepared, in accordance with the terms contained in this Appendix 2 and Agreement and such Order and/or SOW shall incorporate the terms of this Appendix 2 and Agreement.
Unless otherwise stated within an Order and/or SOW the Consulting Services will be provided on a time and materials basis and will be limited to the number of hours of Consulting Services set forth in the Order and/or SOW. The Order and/or SOW will set forth a summary of the assistance required and an amount of hours to which the Consulting Services will be limited (unless augmented by the execution of a Change Order by both parties), and a Fee.
Unless otherwise agreed to between the parties in writing, the Consulting Services are to be pre-paid (in accordance with the Fees section below) and are provided on a time and materials basis. The Consulting Services will be completed upon the earlier of, (i) completion of the number of hours set forth in an Order/SOW, or (ii) the expiration of the term stated within the Order and/or SOW. For the avoidance of doubt, upon the expiration of the term, any remaining unused hours shall be considered completed.
Unless otherwise stated within an Order and/or SOW, Customer will be invoiced for the Fees upon the execution of the Order and/or SOW and shall pay Ansible the Fees Net 30 from the invoice date. Fees are exclusive of Taxes and Expenses. Expenses will be billed to Customer in accordance with the Agreement. Customer will pay out-of-pocket expenses (“Expenses”), such as travel, lodging, food, transportation, and other expenses incurred by the Consultant associated with work performed. Expenses will be billed to Customer at least monthly.
Unless otherwise agreed by the parties in writing in an Order and/or SOW, Consulting Services will be performed Monday through Thursday, between the hours of 8:00 a.m. – 7:00 p.m. local time. Consultants will work a forty (40) hour work week unless coordinated with and approved by Ansible. Work outside of the hours above, work on weekends or on Ansible recognized holidays must also be coordinated with and approved by Ansible and is subject to the Consumption Rules below.
Consulting Services will be performed at the Customer site as mutually agreed upon or at a remote location (“Remote” or “Remotely”) that allows physical or virtual access to the Customer’s operating environment.
- All hours set forth on an Order and/or SOW must be used in consecutive days or calendar weeks, as appropriate, during the term defined on the Order or SOW. If no start date is specified, use of the hours in the Order or SOW will commence no later than sixty (60) days from the date of execution of an Order and/or SOW.
- If no term is stated within an Order and/or SOW the Consulting Services are to expire six (6) months from the Order and/or SOW effective date. Any hours unused shall remain fully owed and shall be considered completed upon the conclusion of the term.
- Each actual hour worked (on-site or remotely) by a Consultant shall consume one (1) hour from the amount of hours purchased.
- Subject to Ansible approval, for each hour worked on non-business days or Ansible recognized holidays shall consume one and a half (1.5) hours from the amount of hours purchased.
During the performance of the Consulting Services by Ansible, Customer will provide:
- Timely access to reasonably requested accurate and complete information relative to the Consulting Services.
- Communication in writing of requirements, expectations and/or objectives.
- Communication in writing of any desired changes in the scope of the Consulting Services.
- Adequate workspace, network connectivity and telephone, dial up or intranet access. VPN access to Consultant's internal network, from the Consultant’s laptop, is required in order to provide the Consulting Services to the Customer.
- Customer shall be responsible for the actual content of any data file, selection and implementation of controls on its access and use, and security of the stored data.
- Customer is responsible for ensuring that it has appropriate backup, security and virus-checking procedures in place for any computer facilities Customer provides or which may be affected by the Consulting Services and that any such data remains retrievable speedily and economically.
Should it not be possible for Customer to carry out any of the obligations under this Appendix, Ansible will be entitled to equitable adjustments to the Consulting Services and/or Fees for the Consulting Services, including charging Customer on a time and materials basis using Ansible then applicable standard rates for any resulting additional work or waiting time. This also applies for any delays and additional work required which was not caused by Ansible.
CHANGE ORDER PROCEDURE
Modifications to this Appendix or the quantity of hours or Term stated in an Order, shall be made only in a writing executed by authorized representatives of both parties (“Change Order”). Ansible will have no obligation to commence work in connection with any change until the Fee and/or schedule impact of the change is agreed upon by the parties in such Change Order. Notwithstanding the foregoing, a Change Order is not required for any changes to the quantity of hours set forth in Order or SOW (i.e., a reallocation of the stated number of hours among the various types of Consultants listed), provided that such changes do not exceed the Estimated Total Fee.
To the Master Training and/or Consulting Services Agreement (“Agreement”)
The Training Services shall be governed by the terms of the Agreement and this Appendix 3. Capitalized terms not defined in this Appendix 3 have the meanings ascribed to them in the Agreement.
Training Services consist of operation training for Ansible and Tower Software for configuration, deployment and management of you IT infrastructure. The Course Syllabus forms an integral part of this SOW.
Should Customer wish to purchase Training Services, an Order and/or SOW shall be prepared, in accordance with the terms contained in this Appendix 3 and incorporate the terms of the Agreement.
Customer will pay Ansible the Fees set forth on the Order or SOW for the Training Services. Fees will be invoiced upon execution by both parties of an Order and/or SOW. Fees are exclusive of Taxes and Expenses. Expenses will be billed to Customer in accordance with the Agreement. Customer will pay out-of-pocket expenses (“Expenses”), such as travel, lodging, food, transportation, and other expenses incurred by the Consultant associated with work performed. Expenses will be billed to Customer at least monthly.
AVAILABILITY AND LOCATION
Unless otherwise agreed by the parties in writing in an Order and/or SOW, Training Services are provided in person with at least one instructor over two (2) consecutive days of eight (8) hours each, at a location and time to be mutually agreed upon in an Order and/or SOW.
All Training Services days (or hours) set forth on an Order and/or SOW must be used in consecutive days or calendar weeks, as appropriate, during the term defined on the Order or SOW. If no start date is specified, use of the Training Services in the Order or SOW will commence no later than sixty (60) days from the date of execution of an Order and/or SOW.
If no term is stated within an Order and/or SOW the Training Services are to expire six (6) months from the Order and/or SOW effective date. Any unused Training Services shall remain fully owed and shall be considered completed upon the conclusion of the term.
- The Customer will provide a suitable room with projector and network access to the outside Internet. Whiteboards and
markers for discussions are useful but not required.
- The Customer will provide each student a workstation/laptop capable of running several Linux virtual machines for interactive labs. Students should have intermediate Linux system administration skills to make the most of this training course.
- Complete the training on or prior to the date set forth on the Order Form, except as otherwise mutually agreed by the parties.