TotalSDS - Master Software Agreement
This Master Software Agreement (MSA, Agreement) is executed by Global Safety Management, Inc. dba TotalSDS, a Delaware corporation, and the Client to record their following agreement regarding the engagement of TotalSDS by Client to render services to Client. TotalSDS and Client agree as follows:
1. Services. Client engages TotalSDS to provide the services (Services) outlined in the accompanying Quote under the terms of this Agreement (MSA). Client must provide all requirements timely and promptly notify TotalSDS of any dissatisfaction with Services. Technical support is provided on an “as available” and “time and materials” basis unless otherwise agreed in a separate maintenance agreement.
2. Work Product. All work created by TotalSDS for Client remains TotalSDS’ property until all related invoices are fully paid. Upon full payment of such invoices, TotalSDS hereby irrevocably assigns to Client and its successors and assigns, for no additional consideration, TotalSDS’ entire right, title, and interest in and to such work product and all intellectual property rights therein. This Agreement does not transfer any of TotalSDS’ pre-existing rights in processes, procedures, software, or intellectual property to the Client.
3.Representations and Warranties.
- a. TotalSDS represents and warrants that: (a) it is a corporation in good standing under Delaware law; (b) this Agreement has been duly authorized and does not conflict with its governing documents; (c) the Agreement is valid, binding, and enforceable; (d) all Services will be performed professionally by qualified personnel; and (e) TotalSDS will comply with all applicable laws.
- b. Client represents and warrants that: (a) it is in good standing under its jurisdiction’s laws; (b) this Agreement is duly authorized and does not conflict with its governing documents; (c) the Agreement is valid, binding, and enforceable; and (d) Client has trained personnel to assist with the Services.
- c. TotalSDS reserves the right to decline to provide additional goods or services to Client (without notice or penalty), if Client fails to fulfill its obligations under this Agreement in a timely manner. If Client fails to pay any amount owed to TotalSDS when due, Client shall pay, on demand, all costs incurred by TotalSDS in collecting the unpaid amount. Additionally, TotalSDS reserves the right to require an advance deposit when substantial costs can be predicted and to arrange direct billing to Client of any major costs associated with any goods or services to be provided by TotalSDS for Client pursuant to this Agreement.
4. Indemnification. Client will be entirely responsible for its acts and omissions, and for the acts and omissions of its agents (including TotalSDS), employees, representatives, and independent contractors. Client shall indemnify and hold harmless TotalSDS (and its agents, officers, directors, shareholders, and employees) from all cost, loss, damage, and liability that are incurred by them in connection with an act or omission by Client or any of its agents, employees, representatives, or independent contractors, including any errors, omissions, or negligent acts.
5. Limitation of Liability. Except for indemnification obligations or liability for gross negligence or willful misconduct, neither party shall be liable to the other or any third party for special, indirect, incidental, exemplary, punitive, or consequential damages, including lost profits, revenue, data, or use, arising from this Agreement, the Services, or any products provided. TotalSDS’ liability to Client shall not exceed the total amount paid by Client for the Services under this Agreement. These limitations apply regardless of the form of action, including breach of contract, warranty, tort, or negligence, and even if advised of the possibility of such damages.
6. Warranty. Except as expressly stated in this Agreement, TotalSDS disclaims all warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any arising from trade usage or course of performance. TotalSDS disclaims responsibility for the performance of any software or hardware provided by the Client.
7. Force Majeure. “Force Majeure” includes acts of God, accidents, severe weather, labor disputes, war, governmental actions, or any cause beyond a party’s control. A party affected by Force Majeure shall be excused from performance to the extent impacted, provided it promptly notifies the other party and takes reasonable steps to resume performance. Client remains responsible for paying outstanding invoices and for Services rendered. Client shall not claim TotalSDS is responsible for delays or interruptions caused by Force Majeure.
8. Dispute Resolution Procedures. TotalSDS and Client shall resolve in the manner provided in this section other any claim, dispute, or controversy between them that arises out of, or with respect to, this Agreement or the Services (a “Dispute”).
- a. Debt Collection. TotalSDS may collect debts through internal procedures, outside agencies, or legal action without needing mediation or arbitration. Client is responsible for all collection costs, including legal fees and related expenses. Unpaid amounts will accrue interest from the due date at the lesser of 1% per month or the maximum rate allowed by law.
- b. Compulsory Non-Binding Mediation. If a dispute cannot be resolved by mutual agreement, the parties shall attempt non-binding mediation in Wilmington, Delaware, in accordance with the Model Procedure for Mediation of Business Disputes of the CPR Institute for Dispute Resolution, within 60 days of appointing a mutually acceptable mediator. The parties will equally share mediation costs, excluding their own expenses and attorney fees.
- c. Arbitration. If a dispute is not resolved within 60 days of mediation, it will be submitted to binding arbitration under the Delaware Uniform Arbitration Act and the rules of the American Arbitration Association (AAA). Arbitration will be the exclusive method of dispute resolution, and no lawsuits may be filed except to seek equitable remedies. The arbitration will take place in New Castle County, Delaware, with one arbitrator unless otherwise agreed. Parties will share arbitration costs equally unless otherwise determined. The arbitrator’s authority is limited as specified in the “Limitation of Liability” section, and the award may be enforced in any court with jurisdiction.
- d. Selection of Arbitrator. Arbitration will be conducted in English by an independent Delaware lawyer rated “AV” by Martindale-Hubbell, selected by mutual agreement. If the parties cannot agree within 15 days, the initiating party will provide a list of ten qualified Delaware lawyers, and the other party will select from this list within 15 days. Failure to select will allow the other party to choose. If the parties fail for any reason to select an arbitrator within the 15-day period, the CPR Institute for Dispute Resolution will appoint an arbitrator. Parties will share the costs of the selection process equally.
- e. Arbitration Award. The arbitrator’s award will be final and binding, with no appeal or review except in cases of fraud, perjury, clerical error, or arbitrator misconduct that affects a party's rights. The arbitrator may award damages, excluding treble, special, punitive, exemplary, or consequential damages. The award may be enforced by any court with jurisdiction.
- f. Equitable Remedies; Enforcement Litigation. Parties may seek injunctive relief or other equitable remedies to enforce their rights, regardless of arbitration. Any party may petition a court for a temporary restraining order or injunction to maintain the status quo pending arbitration or to enforce an arbitration award or settlement.
- g. Prevailing Party Expense Reimbursement. In any arbitration or legal proceeding under this Agreement, the losing party shall reimburse the prevailing party for all approved costs, including fees for attorneys, experts, witnesses, and other expenses, incurred before or after the proceedings. Any unpaid amounts will accrue interest at the lesser of 1% per month or the maximum rate allowed by law.
9. Assignment; Successors. This Agreement cannot be assigned by either party without the other’s written consent, except that TotalSDS may subcontract its duties. TotalSDS or Client may assign rights and obligations without consent to a successor in a merger, reorganization, or sale of assets, with 20 days' notice to the other party. This Agreement binds and benefits authorized assignees and successors. Upon assignment, references to “TotalSDS” or “Client” include the assignee, and the assignor is released from obligations if the assignee assumes all liabilities.
10. Invoices and Payment. TotalSDS will invoice Client for charges under this Agreement, with annual charges billed in advance and other charges billed monthly. Unless otherwise agreed, invoices are due within 30 days. Delinquent payments on undisputed amounts may incur interest at the lesser of 1% per month or the maximum allowed by law.
- a. Disputed Amounts. Client must notify TotalSDS of any disputed charges within 30 days of receipt. Disputes do not relieve the obligation to pay undisputed amounts. Both parties will work in good faith to resolve disputes within 30 days, and interest will not accrue on disputed amounts during this time. Disputes not raised within 30 days are waived.
- b. Suspension of Services. If Client fails to pay undisputed amounts, TotalSDS may suspend services and charge a reconnection fee up to $200. Service will only be restored once all past due amounts, fees, and charges are paid.
11. Credit Approval. The provision of Services is subject to TotalSDS’ ongoing credit approval of the Client. TotalSDS may require Client to prepay if it has concerns about the Client’s ability to pay or after any payment default.
12. TotalSDS Personnel. TotalSDS personnel assigned to Client may not accept employment or provide services to Client, except through TotalSDS, during the term of this Agreement and for 24 months after termination. During this period, Client shall not negotiate employment with TotalSDS employees or contractors. General job advertisements are not considered solicitations. Breach of this provision requires Client to pay TotalSDS 24 months of the employee’s estimated compensation.
13. Term. The term of this Agreement shall be for thirty-six (36) full calendar months or as set forth in the Quote. This Agreement shall automatically renew for successive periods of twelve (12) calendar months if neither party provides written notice to the other of non-renewal at least sixty (60) days prior to the end of the then current term.
14. Termination.TotalSDS may immediately suspend service if Client (i) violates tariffs, laws, regulations, or TotalSDS policies; (ii) fails to pay any invoice when due; or (iii) breaches any material provision of this Agreement. TotalSDS may terminate the Agreement if these issues remain uncured for 30 days after written notice.
15. Early Termination by Customer. If Client terminates the contract early, it must pay TotalSDS 100% of the remaining unpaid amounts within 30 days as liquidated damages. No equipment, intellectual property, or domain transfers will be allowed until the account is fully paid.
16. Confidentiality. Both parties agree that all Confidential Information shared, including the details of this Agreement, remains the property of the disclosing party and must be kept confidential. Confidential Information includes technical, business, and customer information marked as “confidential.” The receiving party agrees: (i) not to disclose Confidential Information without written consent, (ii) to use it only for this Agreement, and (iii) not to use it to the disclosing party’s detriment. Confidential Information does not include information that is public, known before this Agreement, independently developed, or required to be disclosed by law.
17. Amendment. Any changes to this Agreement must be in writing and signed by the party that the change affects.
18. Content. TotalSDS’ Services do not affect the Client’s existing rights, ownership, or interest in their content, and TotalSDS will not claim ownership of any such content.
19. Third-Party Software. If Client acquires third-party software through TotalSDS, Client must review, and sign required license agreements before installation. TotalSDS will not install third-party software without Client’s consent to the licensing terms. Title to such software remains with TotalSDS and its suppliers, and Client may use it only for Services. Client agrees not to copy, reverse engineer, or modify the software. TotalSDS enforces anti-piracy laws and requires all software to be licensed and legal. TotalSDS will remove any third-party software not licensed to the Client before returning Client-owned equipment.
20. Additional Services. Services not defined in the MSA will be billed at TotalSDS’ current hourly rates and material prices. Costs for travel, supplies, and services will be billed at cost plus a handling charge. Client agrees to pay these charges promptly per the terms of this Agreement.
21. Use of TotalSDS Software. If TotalSDS provides its pre-existing software to Client, the title remains with TotalSDS, and the software is considered a valuable trade secret. Client may use the software only for the Services and agrees not to copy, reverse engineer, modify, or create derivative works from it.
22. Equipment. All equipment supplied by TotalSDS remains TotalSDS’ property. Client has no rights to TotalSDS’ equipment, software, or intellectual property except as specified in this Agreement. Client will keep equipment free from liens and indemnify TotalSDS against losses from any failure to do so. Client agrees not to remove or alter TotalSDS’ property labels.