Hepner Consulting Master Services Agreement
Last Updated: 11/18/2024
Hepner Consulting LLC ( “Hepner Consulting” or “HC”) and (“Client”) enter into this master services agreement ("Agreement") as of (the “Effective Date”). Hepner Consulting shall perform the services, provide the resources, and acquire and provide to Client the third-party software, equipment, and services, all as described in statement of work to be executed by the parties from time to time ("Statement of Work" or “SOW”) on the terms and conditions set forth in such Statement of Work and this Agreement. Each Statement of Work shall be generally in the form of the Exhibit attached hereto. Upon execution of a Statement of Work, it shall be subject to and part of this Agreement.
Section I - Charges;
1. Time and Method of Payment
Unless otherwise specifically provided in a Statement of Work, Client will pay Hepner Consulting for the services, resources, and third-party software, equipment and services provided under a Statement of Work on a time and materials basis in accordance with Hepner Consulting then-current commercial rates. Unless otherwise specifically provided in a Statement of Work, Hepner Consulting shall invoice Client weekly for all charges incurred under each Statement of Work during the prior week. (b) Client will pay Hepner Consulting the amounts set forth in each invoice within ten (15) days of invoice date. Late payments shall accrue interest from the due date at the lesser of (i) one and a half percent per month or (ii) the maximum rate allowed by law.
2. Out-of-Pocket Expenses
Unless otherwise specifically provided in a Statement of Work, each invoice will include, and Client shall reimburse Hepner Consulting for, actual, reasonable travel-related and other out-of-pocket expenses incurred in connection with any Statement of Work. Travel charges such as transportation and lodging will be billed at cost for travel times agreed to between Client and consultant.
3. Taxes
Client shall pay or reimburse Hepner Consulting for any present or future sales, use, excise, property, goods, services, or other taxes relating to the services, resources, and any third-party software, equipment, or services, except that Hepner Consulting shall be responsible for its franchise taxes, employment taxes and taxes based on its net income.
Section II - Termination
1. This Agreement and/or any Statement of Works may be terminated as follows:
(a) If Client defaults in the payment of any amount due under any Statement of Work and does not cure the default within ten (10) days after receiving written notice of such default, then Hepner Consulting may terminate the Statement of Work or this Agreement (and thereby all Statement of Works) by providing seven (7) days prior written notice of termination to Client.
(b) If either party materially defaults in the performance of any term of a Statement of Work or this Agreement with respect to a specific Statement of Work (other than by nonpayment) and does not substantially cure such default within ten(10) days after receiving written notice of such default, then the non-defaulting party may terminate the Statement of Work by providing ten days prior written notice of termination to the defaulting party; or
(c) Either party may terminate this Agreement by providing the other party with at least seven (7) days prior written notice of termination if there are no outstanding Statement of Works.
2. Following termination of this Agreement, should Client retain any third-party hardware or software, Client shall be required to maintain any consents, licenses or sublicenses at its own expense, including, but not limited to, annual licensing contracts.
Section III - Confidentiality
All written and oral information communicated to either party by the other in connection with the activities contemplated by this Agreement or subsequent SOW’s whether before or after the Effective Date, shall be governed in accordance with the Nondisclosure Agreement between the parties (“NDA”). In the event there is a discrepancy between the terms of the Agreement and the NDA, the terms and conditions of this Agreement shall govern.
1. For purposes of this Agreement, Confidential Information (the “Confidential Information”) belonging to a party shall mean: (i) any Trade Secret as defined in the Uniform Trade Secrets Act, and Sec. 134.90, Wis. Stats.; (ii) any information relating to the intellectual property and business practices of the Discloser, that is disclosed during the term of this Agreement reduced to writing or other tangible form or expression clearly labeled "Confidential" or “Proprietary,” or if disclosed initially in any other form, that is confirmed in writing as confidential within ten (10) calendar days following the disclosure; and (iii) any non-public information, documentation, and/or devices disclosed or made available by the a party or its subsidiaries at any time and in any form to the other party.
2. Each party agrees that it shall (a) use the Confidential Information provided to it solely for the purpose of this Agreement only and for no other purpose; (b) safeguard the confidentiality of the Confidential Information provided to it in the same manner that it safeguards its own confidential or proprietary information, and refrain from disclosing such Confidential Information to any person, except for disclosures to its own directors, officers, representatives and advisors acting on its behalf (collectively, its “Representatives”); (c) inform its Representatives of the confidential nature of the Confidential Information and direct its Representatives to treat the Confidential Information confidentially; and (d) without the prior written consent of the disclosing party, shall not disclose to any third party, except for disclosures to its Representatives, the fact that Confidential Information has been disclosed by or to either party, that a commercial relationship exists, or is under consideration, between the parties, or any of the terms, thereof.
Section IV - Client Obligations
Client will provide timely access to Client personnel, systems and information required for Hepner Consulting to perform its obligations hereunder. Client shall provide to Hepner Consulting employees performing its obligations hereunder at Client's premises, without charge, a reasonable work environment in compliance with all applicable laws and regulations, including office space, furniture, telephone service, and reproduction, computer, facsimile and other necessary equipment, supplies, and services. With respect to all thirdparty hardware or software operated by or on behalf of Client, Client shall, at no expense to Hepner Consulting, obtain all consents, licenses, and sublicenses necessary for Hepner Consulting to perform under the Statement of Works and shall pay any fees or other costs associated with obtaining and maintaining such consents, licenses and sublicenses. Client shall indemnify, defend, and hold Hepner Consulting harmless from and against all third-party claims and expenses, including reasonable attorneys’ fees and expenses, arising by reason of any failure or delay by Client to obtain or maintain the consents, licenses or sublicenses necessary for Hepner Consulting to perform under the Statement of Works.
Section V - Warranty/Disclaimer of Warranty
Hepner Consulting warrants that its services shall be performed by qualified personnel in a manner consistent with good practice in the information technology services industry. If Hepner Consulting breaches this warranty, it shall supply services to correct or replace the work at no charge. THE REMEDY SET FORTH IN THIS SECTION IS CLIENT'S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. Hepner Consulting DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section VI - Third Party Goods
ALL THIRD-PARTY SOFTWARE, HARDWARE AND SERVICES PROVIDED BY UNDER ANY STATEMENT OF WORK IS PROVIDED "AS IS." ADDITIONALLY, ALL THIRD-PARTY CONSENT, LICENSES, OR SUBLICENSES FOR SUCH SOFTWARE OR HARDWARE ARE THE RESPONSIBILTIY OF THE CLIENT AS OUTLINED IN ANY SOW AND FOLLOWING TERMINATION OF THIS AGREEMENT. CLIENT SHALL LOOK TO SUCH A THIRD-PARTY PROVIDER FOR SATISFACTION OF ANY SUCH CLAIMS.
Section VII - Limitation on Direct Damages
Hepner Consulting LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED AMOUNTS ACTUALLY RECEIVED BY Hepner Consulting FROM CLIENT FOR SERVICES RENDERED HEREUNDER. IN NO EVENT SHALL Hepner Consulting BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, HOWEVER ARISING, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NEITHER PARTY MAY ASSERT A CLAIM AGAINST THE OTHER PARTY MORE THAN TWO YEARS AFTER THE DATE THAT SUCH CLAIM AROSE.
Section VIII – Indemnification
Client shall indemnify, defend and hold the Hepner Consulting harmless from all claims, damages, demands, liabilities, costs and expenses, arising by reason of any claim for personal injury of any agent, employee, customer or business visitor of the indemnitor or damage to tangible or intangible property owned, leased by, or disclosed to the indemnitor, to the extent caused by the negligence or willful misconduct of the indemnitor; provided, however, that indemnitee gives indemnitor: (a) prompt written notice of any such claims; failure or delay to so notify indemnitor shall not relieve indemnitor from any liability hereunder so long as the failure or delay shall not have prejudiced the defense of such claim; (b) reasonable assistance in defending the claim.
Section IX - Waiver/Amendment
No provisions of this Agreement shall be waived or amended except by written consent of both parties, which consent shall specifically refer to this Agreement and explicitly make such waiver or amendment. No failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
Section X - Hiring of Employees
During the term of this Agreement and for one year thereafter, the parties shall not employ or solicit for employment any person employed or contracted then or within the preceding year by the other party and involved directly or indirectly in the performance of any Statement of Work, except with prior written consent of the other party. Such consent may be withheld in the other party's sole discretion. Provided however that such restriction shall not apply to employees of the party’s seeking employment in response to a general solicitation made to the general public, disseminated in the ordinary course of business. In the event written consent is withheld and a party elects to employ or solicit for employment any person employed or contracted then or within the preceding year by the other party and involved directly or indirectly in the performance of any Statement of Work, the soliciting party shall pay to the party employing such individual prior to solicitation a fee equal to one hundred percent (100%) of the projected first year’s annual earnings of such individual. The soliciting party shall pay this fee no later than the first day of such individual’s employment by the soliciting party. For clarification, this section applies not only to Client and Hepner Consulting directly, but also the actions of any third party which may be engaged by or operating on behalf of Client or Hepner Consulting.
Section XI - Relationship of Parties
Hepner Consulting is acting only as an independent contractor and does not undertake, by this Agreement, any Statement of Work or otherwise, to perform any obligation of Client, whether regulatory or contractual, or to assume any responsibility for Client's business or operations. Neither party shall act or represent itself, directly or by implication, as an agent of the other, except as expressly authorized in a Statement of Work. Hepner Consulting has the sole right to supervise and manage its employees and resources hereunder and to perform or cause the performance of all services under this Agreement or any Statement of Work.
Section XII - Force Majeure
Neither party shall be liable for any failure or delay in its performance (other than nonpayment) due to circumstances beyond its reasonable control, whether foreseen or unforeseen, including, but not limited to circumstances occasioned by: war, flood, lighting, drought, earthquake, fire, pandemic, tornado, explosion, or governmental regulation or act, provided that it notifies the other party as soon as practicable in writing and uses reasonable commercial efforts to resume performance.
Section XIII - Severability
If any provision of this Agreement or any Statement of Work is declared or found to be illegal, unenforceable or void, then the parties will be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this Agreement and any Statement of Work will be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If such illegal, unenforceable, or void provision does not relate to the payments to be made to Hepner Consulting hereunder and if the remainder of this Agreement or any Statement of Work will not be affected by such declaration or finding and is capable of substantial performance, then each provision not so affected will be enforced to the extent permitted by law.
Section XIV - Hepner Consulting Know-How; Intellectual Property
1. Client acknowledges that, prior to the Effective Date, Hepner Consulting has acquired, conceived, developed or licensed, and after the Effective Date will continue to acquire, conceive, develop or license, certain architectures, concepts, industry knowledge, techniques, templates, and works of authorship which embody copyrights, inventions, trade secrets and other intellectual property relating to the type of services to be performed for Client (collectively, the "Know-How"). Client desires Hepner Consulting to apply its Know-How in connection with the services hereunder and acknowledges that performance of the Services will enhance and expand the KnowHow. Subject to the confidentiality provisions of this Agreement, nothing in this Agreement or any Statement of Work will impair Hepner Consulting right to use its Know-How or to acquire, license, market, distribute, develop for itself or others or have others develop for Hepner Consulting similar technology performing the same or similar functions as the technology and services contemplated by this Agreement or any Statement of Work.
2. All rights that the disclosing party may have in Confidential Information, such as rights of patent, copyright, trade secret or similar intellectual property right, shall be retained exclusively by the disclosing party. Nothing in this Agreement shall be construed as granting any license, waiver or right to the recipient with respect to any Confidential Information disclosed under this Agreement.
a. Notwithstanding the above, the Client will be the owner of all rights, title and interest in any Work Product. For purposes of this Agreement, “Work Product” shall mean software, documentation, data, specifications, design, and other documents, work product or materials that the Hepner Consulting is required to provide to the Client pursuant to an applicable Statement of Work (“SOW”), but specifically excluding the Background Technology.
b. Hepner Consulting is and will remain the sole and exclusive owner of all rights, title, and interest in and to the Background Technology, including all intellectual property therein, subject to the license granted below. The ownership of any third-party materials will remain with the respective owners thereof, subject to any express licenses granted to the Client from such third parties. For purposes of this Agreement, Background Technology means all intellectual property owned or controlled by the Company that was (a) made, invented, developed, created, conceived, or reduced to practice before an applicable SOW or (b) was developed by Hepner Consulting outside the scope of an applicable SOW or without reference to the Client’s Confidential Information.
c. If and to the extent that any intellectual property is developed by Hepner Consulting, individually or in connection with the Client that is not Work Product, all rights to such intellectual property shall be the sole and exclusive property of Hepner Consulting. The client shall execute such documentation reasonably requested by Hepner Consulting to effectuate and document such ownership.
d. Hepner Consulting hereby grants to the Client such rights and licenses with respect to the Background Technology, if any, that is necessary to allow the Client to utilize the Background Technology for the purpose contemplated by an applicable SOW.
Section XV - Survival
Any sections of this Agreement that by their nature may reasonably be presumed to have been intended to survive any termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement.
Section XVI - Attorneys' Fees
If either party sues the other in connection with this Agreement, the prevailing party shall recover its reasonable attorneys' fees and costs.
Section XVII - Governing Law
This Agreement shall be governed by the laws of Wisconsin without giving effect to any rules of conflicts of law. Both parties waive their right to a jury trial as to any or all of the issues arising out of or related to this Agreement. Both parties agree that venue of any disputes arising from this Agreement will be in Appleton, Wisconsin.
Section XVIII - Media Releases
Neither party shall identify the other party in any media releases, public disclosures, or marketing material without the prior consent of the other party, except for (i) any announcement intended solely for a party's internal distribution, (ii) any listing of the other party as a client or vendor of the other in confidential proposals, and (iii) any disclosure required by law.
Section XIX - Assignment
Neither party may or can assign any of its rights and obligations under this Agreement or any Statement of Work without the prior written consent of the other, which consent will not be unreasonably withheld. Hepner Consulting may use subcontractors to perform work under this Agreement or any Statement of Work provided that any subcontract shall contain confidentiality provisions substantially similar to those herein.
Section XX - Notices
Any notice under this Agreement shall be deemed delivered when delivered in person, the day after being sent by Federal Express or comparable overnight courier, or five days after being mailed by registered or certified U.S. mail, return receipt requested, to the person designated at the address set forth below. Either party may change its address by written notice to the other party.
Client: Hepner Consulting LLC:
Address: 340 N Broadway, Ste 200, Green Bay, WI 54303
Attn: Nathan Hepner
Section XIV - Entire Agreement
This Agreement and the Statement of Works issued hereunder constitute the final, entire, and exclusive agreement between the parties with respect to the subject matter hereof and may be amended or modified only in writing executed by both parties. In case of any inconsistency between this Agreement and a Statement of Work, the Statement of Work shall prevail with respect to interpretation of that Statement of Work, except that no Statement of Work may survive termination of this Agreement.