B2B Master Services Agreement
MASTER SERVICES AGREEMENT
This Master Services Agreement (this “MSA”) sets forth the terms and conditions pursuant to which COACHSELECT, INC. (“CoachSelect”) will make its services and platform available to the entity (the “Customer”) set forth on an Order (as defined below) and the personnel (each, a “Client”) of Customer. This MSA, together with (i) any Statement of Work (as defined below), in a form provided by CoachSelect that references this MSA and that is submitted by Customer and accepted by CoachSelect (each, an “Order”) and (ii) any other written addendum that references this MSA and is executed by CoachSelect and Customer, constitute the “Agreement.”
BEFORE ACCEPTING THIS AGREEMENT BY SUBMITTING AN ORDER TO COACHSELECT, CUSTOMER IS ADVISED TO CAREFULLY READ THE TERMS OF THIS AGREEMENT AND ANY APPLICABLE DOCUMENTATION. By executing an Order and submitting it to CoachSelect, Customer (a) agrees to be bound by the Agreement and (b) confirms that the individual executing the Order has the legal authority to bind Customer by the terms of this Agreement.
In addition to the terms set forth below, this Agreement expressly incorporates by reference CoachSelect's Privacy Policy located at https://www.coachselect.com/privacy-policy (the “Privacy Policy”). Any capitalized terms used herein without definition shall have the meanings given to them in the Order(s). In the event of a conflict or inconsistency between an Order, the Privacy Policy, and this MSA, this MSA will control except to the extent that an Order or an addendum to an Order executed by both parties modifies this MSA by referring to a specific section of this MSA.
1. Definitions. The following terms shall have the following meanings for purposes of this Agreement:
a. “CoachSelect Services”: The process by which CoachSelect and its Concierges identify a matching Practitioner from CoachSelect’s practitioner network, and the business logistics, such as high-level Engagement scope, Customer, Client, and Practitioner contracts, and payments, that are necessary for delivery of the Services.
b. “Concierge”: a CoachSelect representative responsible for Practitioner matching, Customer or Client service portfolio construction, and Customer or Client satisfaction.
c. “Engagement”: services included in the scope agreed within each Order for each Customer or Client and subsequently provided by the Practitioner to the customer or Client.
d. “Fees”: the agreed upon fees and costs, as set forth in an Order or any addendum to an Order, that Customer agrees to pay to CoachSelect in exchange for the Services and the Coaching Services.
e. “Practitioner”: independent service provider identified and matched to a Customer or Client by CoachSelect for a particular Engagement scope.
f. “Practitioner Services”: The services delivered by a Practitioner within the Engagement as matched by CoachSelect.
g. “Services”: The services that CoachSelect provides or makes available to Customers or Clients as set forth in an Order, including without limitation the CoachSelect Services and Practitioner Services; provided, that “Services” shall not include Practitioner Services (as defined in an applicable Order), which, for clarity, are provided by coaches that are independent of CoachSelect.
h. “Statement of Work” or “SOW”: a Statement of Work, in a form provided by CoachSelect and executed by both parties, setting forth a description of, and terms and conditions applicable to, Services to be provided to Customer by CoachSelect and the Practitioners it matches to a Customer or Client.
2. Confidentiality
a. Customer and each Client agrees to keep all Confidential Information confidential and not disclose any Confidential Information to any third party except as required by applicable law, rule or regulations. For purposes of this Agreement, “Confidential Information” means non-public information in any form or medium disclosed to Client by or on behalf of CoachSelect, including without limitation, CoachSelect's technology, trade secrets, know-how, business operations, plans, strategies, customers, Practitioners, pricing, and information with respect to which CoachSelect has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Notwithstanding anything in this Agreement to the contrary, the confidentiality obligations herein shall not apply to Customer where disclosure is in connection with a routine audit or examination by, blanket document request from, or other disclosure to a regulatory or governmental entity that does not specifically reference CoachSelect or its affiliates.
b. Pursuant to the Defend Trade Secrets Act of 2016, each Client acknowledges that such Client shall not have criminal or civil liability under any Federal or State trade secret law for the disclosure of Confidential Information that is a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, if a Customer or Client files a lawsuit for retaliation by CoachSelect for reporting a suspected violation of law (if applicable), such Customer or Client may disclose the trade secret to its attorney and may use the trade secret information in the court proceeding, if such Customer or Client (X) files any document containing the trade secret under seal; and (Y) does not disclose the trade secret, except pursuant to court order.
c. Subject to this Agreement and the terms of CoachSelect's Privacy Policy, CoachSelect agrees to keep any non-public information Customer or a Client discloses to CoachSelect confidential and not to disclose any such confidential information to third parties except (i) as necessary to fulfill CoachSelect's obligations under this Agreement, and (ii) as otherwise required by applicable law, rule or regulation. The foregoing obligations do not apply to information that was in CoachSelect’s possession without confidentiality restrictions prior to disclosure thereof by Customer or Client, or that is independently developed by CoachSelect without use of or reference to Customer’s or Client’s non-public information. CoachSelect shall cause each Provider to accept similar obligations in writing prior to providing any Provider Services under this Agreement. Notwithstanding the foregoing, nothing in this Agreement will restrict CoachSelect from the use of any general knowledge, experience, know-how or any knowledge retained in unaided human memories, including discoveries, methods, inventions, works, processes, ideas, concepts, tools and techniques learned or developed by CoachSelect or its owners, directors, employees, subcontractors, agents, or representatives in providing the Services and/or developing the deliverables, if any; provided that in doing so CoachSelect does not breach its confidentiality obligations hereunder.
d. Each Practitioner has agreed to maintain confidentiality of the content of all Engagements and has executed an agreement with CoachSelect to that effect.
e. Each party acknowledges the confidential and sensitive nature of the non-public information provided or to be provided by the other party (or a Client or Practitioner) and acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Section 2 and that the disclosing party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any such breach, in addition to all other remedies available to such party at law or in equity.
3. Termination
a. Either party may terminate this Agreement with 30-days written notice to the other party. Should either party elect to terminate this Agreement, except for termination by CoachSelect for Customer’s or a Client’s material uncured breach of this Agreement, each Client will have the right to receive any Services that have been fully paid for by Customer prior to such termination. In the event the phase that has been fully paid for by Customer extends beyond the 30-day termination period, CoachSelect and Customer agree to negotiate in good faith regarding a commercially reasonable plan to terminate the applicable Order, but in no case will CoachSelect provide a portion of the Engagement for which Customer has not paid. Refunds will only be provided for the prorated duration of the Engagement for which the Customer has fully paid beyond the 30-day termination period. Notwithstanding anything herein, if Customer terminates this Agreement due to CoachSelect’s or Practitioners’ material breach, which, if capable of being cured is not cured within 30 days of Customer’s notice to CoachSelect describing such material breach, in addition to any other remedies available, CoachSelect shall promptly refund to Customer the pro rata unused portion of any prepaid fees from the effective date of such termination.
4. Fees; Payment Terms.
a. Customer agrees to pay CoachSelect all Fees set forth in any Order (or in any addendum to an Order).
b. The method and schedule of payment will be designated in the applicable Order, with payment due on terms of net 30 from invoice date.
c. If an Order requires that the Fees for Services be prepaid by Customer as a retainer, such prepaid amounts will be allocated to Services as they occur. Customer agrees to replenish the retainer as services are rendered and agrees to pay CoachSelect’s invoice(s) related to thereto no later than 30 days following the date of such invoice. Unused retainer funds will be refunded to Customer within 30 days following completion of an Engagement.
d. In the event of a failed payment or nonpayment, CoachSelect will promptly notify Customer to rectify the situation. Until payment has been received, no Services will be provided. A finance charge of 1.5% per month (or the maximum amount allowed by law, if less) shall accrue on any Fees not being disputed in good faith that remain unpaid for more than ten (10) days after becoming due. If any Fees remain unpaid for more than thirty (30) days after becoming due, Customer agrees that CoachSelect reserves the right to deem such failure to pay as an effective termination of the applicable Order. Customer further agrees the prevailing party in a final non-appealable judgement by a court of competent jurisdiction will be entitled to any attorney fees, court costs, or other costs incurred in collection of delinquent accounts.
5. Indemnification
a. Except to the extent arising out of the gross negligence, intentional misconduct or material breach of this Agreement by CoachSelect or a Practitioner, Customer and each Client will indemnify, defend, and hold harmless any Practitioner providing Practitioner Services under this Agreement and CoachSelect and its directors, officers and employees from and against all taxes (but not including U.S., state, or local taxes based on CoachSelect’s income or business, generally), losses, damages, liabilities, costs, and expenses, including attorney’s fees and other out-of-pocket legal expenses, arising directly or indirectly from or in connection with third party claims arising out of: (i) such Customer’s or Client’s use of the Services or Practitioner Services; and (ii) any data, information or other content provided to CoachSelect or the Practitioner by or on behalf of Customer or such Client; and (iii) the gross negligence or intentional conduct of Customer or such Client or the material breach of this Agreement by Customer or such Client.
b. Each Client is personally responsible for the actions he/she takes or does not take. Customer and each Client agrees not to hold CoachSelect or the Practitioner liable for consequences of any actions or absence of any actions taken by a Customer or each Client as a result of any Services, Practitioner Services, or deliverables.
6. Disclaimer; Limitation of Liability
a. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, NON-INFRINGEMENT, OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT BEARS ALL RISK RELATING TO QUALITY, ACCURACY AND USE OF THE RESULTS OF THE SERVICES AND PRACTITIONER SERVICES, AS APPLICABLE.
b. EXCEPT IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY HERETO, ITS STOCKHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO CUSTOMER OR ANY CLIENT FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES OR PRACTITONER SERVICES, AS APPLICABLE. IN NO EVENT SHALL COACHSELECT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE SERVICES. UNDER NO CIRCUMSTANCES WILL COACHSELECT’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COACHSELECT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD (DETERMINED AS OF THE DATE GIVING RISE TO SUCH LIABILITY). THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
7. Intellectual Property
a. Each of CoachSelect and the Practitioners shall retain all right, title, and interest worldwide in and to any trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter collectively referred to as “Inventions”) and all applicable intellectual property rights related to such Inventions owned by CoachSelect or a Practitioner, respectively, as of the effective date hereunder or discovered, conceived, or reduced to practice by CoachSelect or a Practitioner during the term of the Agreement. Notwithstanding the foregoing, CoachSelect shall cause Practitioners to agree that Client shall have a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use any Inventions of a Practitioner that are incorporated in any Practitioner Services or deliverables provided to Customer or Client by such Practitioner, and Customer or Client shall use Inventions for internal or personal purposes only, respectively, and shall not provide the Inventions in tangible form to any third party.
b. For further clarity: (i) neither Customer nor any Client may copy or use for any reason (including for any prospective use, e.g., future coaching or training sessions) any of the Inventions without prior written consent from CoachSelect; and (ii) neither Customer nor any Client is permitted to record or videotape any meeting or delivery of Services without prior written consent of CoachSelect and the Practitioner, as applicable.
c. Subject to the Confidentiality obligations set forth in Section 2, Customer and each Client hereby grants to CoachSelect and the applicable Practitioner a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, sublicensable and transferable right and license to use, copy, process, transmit, store, host, edit, modify, aggregate, combine, reproduce, distribute, display, and prepare derivative works of any data, information, or other content provided to CoachSelect or the Practitioner by or on behalf of Customer or such Client, whether through a matching surveys, feedback surveys, or otherwise, in order for each of CoachSelect and the Practitioner to (a) fulfill its obligation under this Agreement, including without limitation, providing the Services and Practitioner Services, as applicable, and (b) make changes or improvements to its services or develop other services so long as such content is used only in anonymized or deidentified format.
8. Non-Solicitation and Non-Compete
a. Customer and each Client will not suggest or agree to work with any Practitioner in the CoachSelect network to whom they have been introduced during the term of this Agreement by CoachSelect directly during the term of this Agreement and for a period of one year thereafter, except in connection with a written Order or with express written approval of CoachSelect.
b. If during the term of this agreement any Practitioner within the CoachSelect network to whom Customer and any Client have been introduced during the term of this Agreement by CoachSelect attempts to solicit Customer or any Client or works directly with Customer or any Client, Customer and/or such Client will notify CoachSelect immediately.
c. Neither Customer nor any Client may use or access the Services or Practitioner Services for the purposes of monitoring their performance, pricing, functionality, or for any other benchmarking or competitive purposes.
9. Applicable Law and Other Terms
a. This Agreement shall be interpreted in accordance with the laws of Delaware residents without regard to any conflict of law principles.
b. This Agreement will be effective as of the date that the first Order submitted by Customer is accepted by CoachSelect.
c. This Agreement, including any agreements or other documents that are expressly incorporated herein by reference, constitutes the sole and entire agreement of the parties hereto and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. The terms of this Agreement will govern all Services undertaken by CoachSelect for Customer or Clients.
d. No waiver by either party hereto of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by either party hereto of any right under this Agreement shall be construed as a waiver of any other right.
e. This Agreement may be updated or modified from time to time by CoachSelect in its sole discretion. Notwithstanding anything to the contrary in this Agreement, CoachSelect may provide notice of such updates or modifications by posting such notice on its website or other application pursuant to which Services are provided. Continued use of the Services following the effective date of any such update or modification shall constitute Customer’s acceptance of and agreement to such update or modification.
f. In the event that any provision of this Agreement or any Order should be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain and continue to be in full force and effect as if such invalid, illegal or unenforceable provision had been deleted from or never included in this Agreement or Order; provided, however, that if any such provision may be modified in such a way as to make it valid, legal or enforceable, then such provision shall so be modified so as to make its effect as close as possible to that which was originally contemplated prior to the aforementioned holding of invalidity, illegality or unenforceability.
g. CoachSelect will be an independent contractor of Customer, and nothing in this Agreement will be construed to create a joint venture, partnership, agency or other employment relationship between the parties. All persons retained by CoachSelect to perform Services for, or provide deliverables to, Customer will be employees or subcontractors of CoachSelect and will not be deemed employees of Customer. Neither party will, by virtue of this Agreement, have the authority to control the activities and operations of the other party, or to bind or commit the other party in any manner.
h. All notices and communications pertaining to this Agreement or any applicable Order must be made in writing and will be deemed sufficiently given when delivered in person or by overnight carrier, or by electronic mail (with receipt confirmed), or on the third day after being deposited in the United States mail, first class registered or certified mail, return receipt requested, postage prepaid, addressed as set forth on the most recent Order hereunder (or such other address for a party as will be specified by like notice). A party may change the contact information or the designated representative by notifying the other party of such change in accordance with the notice procedures in this Section.
i. CoachSelect shall be excused from performance and shall not be liable for any loss, damage, injury or delay due to or caused by any cause beyond its reasonable control, including, without limitation, fires, floods, hurricanes and other extreme and unanticipated weather conditions, explosions, earthquakes, epidemics, pandemics and similar global health emergencies, elements of nature or acts of God, acts of terrorism, riots, civil commotion, acts of government, strikes, lockouts, malicious mischief, theft, or any other similar cause; provided, however, that if the Services to be rendered hereunder will be interrupted by such causes for a period of more than sixty (60) days, either party may terminate this Agreement or any applicable Order upon ten (10) days written notice to the other party.
j. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, CoachSelect may assign, without Customer’s consent, this Agreement, to (i) a wholly owned subsidiary of CoachSelect, or (ii) any entity which acquires all or substantially all of the assets of CoachSelect or into which CoachSelect is merged or consolidated or to any entity controlling or controlled by CoachSelect Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
k. Customer hereby grants to CoachSelect a worldwide, non-exclusive, royalty-free right and license to use Customer’s name and logo solely in connection with CoachSelect’s marketing and advertising materials, including without limitation, on CoachSelect’s website; provided, that CoachSelect shall use such name and logo in accordance with such written guidelines therefor as Customer may provide to CoachSelect from time to time. In the event CoachSelect would like to use Customer’s name and logo in connection with a public case study regarding Customer’s use of the Services, CoachSelect will obtain Customer’s prior written approval of the content of such case study (such approval not to be unreasonably withheld).