Master Services Agreement – Commercial Uses 2022

Agreement

This Master Services Agreement (MSA) (Agreement) is made between True Elements,
Inc., a Delaware Corporation with principal offices at 4850 Tamiami Trail North, Suite 301
Naples, Florida 34103, (Company), and ________________________, whose principal
corporate address is ________________ (Customer). The purpose of this Agreement is to
establish the general terms upon which services shall be provided by True Elements to the
Customer. The General Terms as established under this Agreement shall be incorporated by
reference into all Statements of Work (SOW’s), and the Service Level Agreement (SLA’s), as
may otherwise be entered into between the parties and which are intended to supplement this
Agreement.

 

Recitals

True Elements is in the business of providing institutional water quality and climate data,
forecasting, and indexing through aggregation and normalization of data, applied Artificial
Intelligence (AI) and deep learning. It provides visual insights by using its software and
algorithmic intelligence to provide near real time, dynamic information through its detailed online
and offline reporting. Use cases include (a) watershed management (b) resiliency planning (c)
supply chain risk (d) brand to consumer applications; and (e) capital and financial risk
assessment.

 

True Elements generally provides:

1. Licensing of data and visual insights into host platforms for commerce, public agencies, and investment and banking institutions.
2. Hosting services defined by an SLA in one of a: “on premises”, “hybrid” or “hosted” business models.
3. Service and Support as defined by the SLA.
4. Software licensing.

 

True Elements provides services and licensing after a thorough needs assessment developed in collaboration with Customer. It charges a combination of one-time deployment fees, professional fees, support and recurring licensing fees in a Data SaaS business model.

 

This Agreement, as may be amended from time to time, in writing, shall apply to all future services and licensing as may be agreed to under all Statements of Work (SOW’s) (including any change orders) as are entered into in the future. The intent of this Agreement is to provide one set of unified general provisions that govern the parties present and future relationship.

 

Section 1. Services, Software and Hosting

True Elements agrees to perform services (the “Services”) and to license its software as described in one or more Statements of Work (SOW’s) agreed to by True Elements and delivered by Customer. The general form to be used for SOW’s is attached as Appendix A. Individual SOW’s may be amended in writing.

 

SOW’s shall describe:

1. A description of Services to be rendered.
2. Modifications to the Services (or any goals or milestones associated with the Services).
3. A description of fees for services, hosting and licensing as may apply.

 

Any conflict or inconsistency between this Agreement and a specific SOW relating to scope of work to be performed on a specific project, or licensing, shall be resolved by giving precedence to the applicable Statement of Work for the specific project.

 

True Elements shall license all software required by this Agreement and shall maintain ownership of the same as its intellectual property and subject to its patents, patent pending, and other protections of intellectual property.

 

True Elements and Customer shall together define the appropriate hosting model for specific projects: “on premise”, “hybrid” or “cloud-based hosting” and those choices shall be reflected in the SOWs for individual projects.

 

Section 2. Duty of Mutual Cooperation

The Parties recognize that during the course of this Agreement mutual cooperation and timeliness are important for the success of each project. Each party shall assist the other in the performance of each party’s obligations as arise under this Agreement necessary for project performance in a timely manner. Each party shall make available to the other a designated representative (Designated Representative) who shall be responsible and authorized to make binding decisions regarding the obligations which are the subject of this Agreement and shall perform other duties and requirements as set forth in this Agreement and/or in a specific Statement of Work (SOW). Authority may be delegated for a specific project which is the subject of an SOW only as provided in writing (i.e. a designated project manager) and only to the extent of the scope of delegation described.

 

Both parties will endeavor to fulfill the duty of mutual cooperation in good faith and in a commercially reasonable manner. If either party is prejudiced by a lack of or delay in cooperation, that party shall provide advice and request to the designated representative for further cooperation as appropriate, the intent being one of open communication.

 

Section 3. Description of Work – Statement of Work (SOW’s) and Service Level Agreements (SLA’s).

 

There are three basic agreements that together govern the customer relationship:

 

1. This Agreement – The Master Service Agreement (MSA) that contains the general terms and conditions that apply to all SOW’s.
2. The Statements of Work – SOW’s contain the description and scope of services, licensing requirements, hosting requirements, milestones and time frames for delivery of solutions for each specific project that fall under the MSA.
3. The Service Level Agreement. – The SLA sets the standard for levels of service for professional services, support and hosting services including skill requirements, response times with escalation schedules for problems arising in delivery and operation, and uptime requirements. SLA’s also provide remedies and methods of dispute resolution.

 

All three agreements are intended to be fully integrated and read in a consistent manner.

 

Section 4. Fees and Payment

4.1 Timing of Payment. Customer shall pay all fees, including applicable taxes, as invoiced on that schedule as provided in the SOW’s.

4.2 Electronic Payments. Customer shall make payments through electronic payments, ACH, wire transfer, and/or corporate credit card unless otherwise mutually agreed to. True Elements’ contract administration and financial department shall timely provide account deposit instructions.

4.3 Taxes. Fees for Services exclude all sales, value added, and other taxes and duties imposed with respect to the sale, delivery, or use of any product or Services covered by this Agreement. Unless Customer provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Customer is responsible for the payment of all taxes, levies, duties, assessments, including but not limited to value-added, sales, use or withholding taxes, assessed or collected by any governmental body (Taxes) arising from True Elements’ provision of the Services under this Agreement. If True Elements is required to
directly pay or collect Taxes related to Customer’s use or receipt of the Services under this Agreement, then, Customer shall be invoiced for those taxes, and/or agrees to promptly reimburse True Elements for any amounts paid on behalf of Customer.

4.3 Failure to Make Payment. In the event that Customer fails to make payments as required within thirty (30) days of invoice, then such late payments shall be subject to a late payment charge of 1.5% per month. If late payments exceed two successive months, then, True Elements may elect to suspend or otherwise terminate services in accordance with Section 5 below.

 

Section 5. Term and Termination

5.1 Automatic renewal. The provisions of this Agreement, all SOW’s, and the SLA shall automatically renew for additional one year periods unless either party grants notice to the other party of its intention not to renew at least thirty (30) days prior to the end of the current term unless otherwise terminated earlier under the provisions that follow in this section.

5.2 Termination for Convenience. Subject to section 5.4 below, either party may terminate this Agreement or any Statement of Work upon sixty (60) days written notice to the other party.

5.3. Termination of Hosting Services. In the case that Services are provided in either a hybrid or cloud hosted business model, True Elements retains the right to discontinue Web hosting services or to change hosting providers if the parties experience either security or performance issues that create reasonable concern of meeting SLA standards for hosting and security.

5.4 Breach. If either party fails to comply with any material term of this Agreement, the SOW’s, or the SLA, the non-breaching party shall notify the other party of such failure and if the breaching party fails to cure such breach within seven (7) business days, the non-breaching party may immediately terminate this Agreement, the SLA, or the Statement of Work. Notwithstanding the foregoing, the Company shall not be obligated to provide the Customer with notice and an opportunity to cure a payment default more than once in a twelve (12) month period, and in the event of multiple payment defaults in any twelve (12) month period, may immediately terminate this Agreement or any Statement of Work.

5.5 Termination. Upon termination of this Agreement, the SLA, or any SOWs for any reason, the Customer shall immediately pay to True Elements all amounts owed to the Company, and each party shall immediately cease all use of and shall return to the other party all Confidential Information and data in a commercial reasonable manner designed to minimize business disruption, and in any event not more than ten (10) days after payment.

 

Section 6. Work Provisions

6.2 Independent Contractor. For all purposes, and to the extent that professional services are provided, True Elements is and shall remain a Vendor and Independent Contractor and nothing in this Agreement or Statement of Work shall be deemed or construed to create an employer/employee, joint venture, or partnership between True Elements and the Customer. Nothing herein shall be deemed or construed to create an employment relationship between Customer and any employee, agent or independent True Elements. Neither party shall have any authority to ensure any obligations on behalf of the other party or to make any promise, representation, or contract of any nature on behalf of the other party.

6.3 Company’s Personnel. Unless otherwise stated in the applicable Statement of Work, True Elements shall have sole discretion over the identity of its personnel used to provide Services under this Agreement and any Statement of Work. True Elements shall ensure that the personnel are in all cases suitably qualified and experienced.

 

Section 7. Insurances.

If any True Elements employees provide Services directly to Customer or on Customer’s premises, True Elements shall carry the following insurance coverages:

 

7.1 Commercial General Liability Insurance. Including Bodily Injury and Property Damage Liability, Independent Contractors Liability, Contractual Liability, Product Liability, and Completed Operations Liability in an amount not less than $1,000,000 combined single limit, per occurrence, and $2,000,000 aggregate.

7.2 Worker’s Compensation. Statutory limits are required.

7.3 Employer’s Liability Coverage. $500,000.

7.4 Automobile Liability. Not less than $1,000,000 per occurrence for bodily injury and property damage.

7.5 Professional Liability. Not less than $1,000,000 per occurrence and aggregate to apply when a True Elements employee or consultant has a professional designation and/or a required license.

7.6 Umbrella or Excess Liability Coverage. Not less than $2,000,000 per occurrence and in the aggregate.

 

Section 8. Confidential Information and Non-Disclosure

During the course of discussions between the Parties and during the course of performing Projects, each Party may be given access to information (in hardcopy and/or electronic and/or oral form) that relates to the other’s past, present and future research, development, business activities, products, services, and technical knowledge, know-how, data, patents, copyright, trade secrets, processes, techniques, programs, designs, formulas, marketing, advertising, financial, commercial, sales or programming matters, written materials, compositions, drawings, diagrams, computer programs, studies, work in progress, visual demonstrations, ideas, concepts, and other data including, without limitation, details of client agreements, contracts and other arrangements, which is identified by the disclosing Party as confidential or is such that a reasonable person would consider it to be confidential (“Confidential Information”). In connection with Confidential Information, the following shall apply:

 

1. The Confidential Information of the disclosing Party may be used by the receiving Party only in connection with the project and may only be copied or reproduced to the extent reasonably necessary for the receiving Party to perform its obligations.
2. Each Party agrees to protect the confidentiality of the other’s Confidential Information in the same manner they protect the confidentiality of their own Confidential Information of like kind, but in no event, shall either Party use less than reasonable care in protecting such Confidential Information. Access to the Confidential Information shall be restricted to the Parties.
3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the disclosing Party. No express or implied license or right to or under any patents, trade secrets, copyrights, trademarks or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.

 

Section 9. Property Ownership, Operation, Maintenance and Licensing

9.1. Property ownership. Customer shall own or lease and be responsible for the proper operation and maintenance of all on premises equipment required to deliver the Services including but not limited to network devices, sensors, and all other equipment of any kind required to properly collect and process the water quality and climate data which is the subject of the Services.

9.2 Customer Data. As between Customer and True Elements, Customer is and will remain the sole and exclusive owner of all right, title and interest to all personal identity information, and use, metrics, and analytics information associated with a specific Customer property (Customer Data). Customer hereby grants to True Elements, its affiliates, consultants, and partners all necessary rights to host, use, process, store, display and transmit Customer data as necessary to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein True Elements acquires no right, title, or interest from the Customer-to-Customer Data.

9.3 Subscription Licensing. If the Services are delivered in either an “on premises” or “hybrid” business model, then, True Elements hereby grants to Customer a limited, non-exclusive, nontransferable without right to sub-license, license to use True Elements’ software, methods, materials, documentation, and other intangibles for the limited duration of the period of the subscription to True Elements Services.

9.4 Subscription Service Analysis and Meta Data. True Elements may compile statistical and other information related to the performance, operation, and use of the Subscription Services and share data from the Subscription Services environment in aggregated form for security, operations management and to create statistical analyses and for research and development purposes (Subscription Service Analyses). Subscription Service Analyses will not incorporate any information including specifically Customer Data or data specific to a Customer’s property in a form that could serve to identify the Customer or an individual. True Elements retains all intellectual property rights in Subscription Service Analyses).

 

Section 10. Warranties.

10.1 Warranty of Authority. Each party warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance under this Agreement shall not conflict with, limit, or be contrary to any other agreement.

10.2 Warranty of Non-Infringement. The parties represent and warrant to each other that their respective disclosure of any information, documents, software and other materials and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, without limitation, any copyright, trademark, known patent or trade secret right.

10.3 Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS” AND EXCEPT AS EXSPRESSLY PROVIDED HEREIN, TRUE ELEMENTS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

10.4 Data Security, Use of Personally Identifiable Information. In the event that Customer uses, stores, manages, collects, or otherwise has access to personally identifiable information on a Web site or platform owned by True Elements pursuant to the terms of the Services or incorporates personally identifiable information in or with the Services, Customer shall use such personally identifiable information only in compliance with all applicable laws and administrative rulings as may now be in effect or hereafter adopted, and in accordance with True Elements and Customer’s own posted privacy policies.

10.5 Limitation of Damages. THE PARTIES AGREE THAT NEITHER PARTY’S LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WILL EXCEED FEES PAID OR TO BE PAID BY CLIENT PURSUANT TO AN APPLICABLE SOW UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST DATA, LOST PROFITS OR REVENUE, OR FOR ANY CLAIM OR DEMAND BY ANY THIRD PERSON, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IS ADVISED OF THIS POSSIBILITY. This limitation of liability represents an allocation of risks between True Elements and Customer which allocation is reflected in the price of the Services.

 

Section 11. General Provisions

11.1 Mutual Indemnification. Each party shall indemnify and hold harmless the other party, its subsidiaries, affiliates, directors, shareholders, members, officers, employees, consultant and agents (individually and collectively referred to as Indemnified Parties) from and against any and
all claims, actions, proceedings, reasonable counsel fees, and disbursements (Claims) to the extent that the Claims arise out of or result from any of the following: (a) The gross negligent acts of, acts of omission, or intentional acts of the other Party, its employees, subcontractors, or agents; (b) any violation of federal, state, or local law or regulation applicable to either party, or (c) any allegation that the intellectual property of True Elements used in delivery of the Services infringes on a patent, trademark, or copyright in the United States.

11.2 Force Majeure. Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include but are not limited to, fire, natural catastrophe, government legislation, acts, orders, or regulation, strikes, or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then, either party may terminate the Agreement upon written notice to the other party.

11.3 Publicity. Notwithstanding anything to the contrary in this Agreement or applicable Statements of Work, True Elements may be permitted to disclose in summary form the nature of the work performed for Customer, however, True Elements shall not disclose the proprietary business processes of Customer or any of Customer’s data. Publicity represents value which value is reflected in the price of Services.

11.4 References. Each party is entitled to reference the other party and describe work completed and services delivered in summary and general form without revealing any of the other party’s confidential information.

11.5 Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.

11.6 Entire Agreement; Enforcement of Rights. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.

11.7 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.

11.8 Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.

11.9 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by fax or 48 hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address or fax number as set forth below or as subsequently modified by written notice.

11.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

11.11 Successors and Assigns. The rights and benefits of this Agreement shall inure to the benefit of, and be enforceable by, the Company’s successors and assigns. Any successor (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall be deemed to assume the obligations and to be entitled to the benefits under this Agreement to the same extent as the Company would be required to perform such obligations or would be entitled to such benefits in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets that executes
and delivers the assumption agreement described in this section or that becomes bound by the terms of this Agreement by operation of law.