Master Services Agreement for MDE and Cost Plus

IT STAFFING AGREEMENT 

The following terms and conditions govern our business relationship with you.  Please read these terms carefully and print a copy for your records. 

RECITALS 

A. Customer wishes to procure certain highly skilled and qualified information technology professionals (“IT Staff Personnel“) from ITBD as specified in this Agreement to provide certain technical solutions and talent-related (the “Services”); and

B. ITBD possesses the requisite skills, knowledge, and training necessary to provide the Services for Customer, and wishes to provide such Services to Customer in accordance with the terms of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, promises and other good and valuable consideration, Customer and ITBD agree as follows: 

1. Engagement.  Subject to the terms and conditions of this Agreement, Customer hereby engages ITBD to provide IT Staff Personnel on an as needed basis determined by Customer as independent contractors to perform the Services, and ITBD hereby accepts such engagement.. 

2. Statements of Work.  Each engagement of an IT Staff Professional shall be done pursuant to a Statement of Work in the form set forth in Exhibit A (“Statement(s) of Work”).  A Statement of Work will be effective only upon written signature of both parties. 

3. Compensation.   

3.1 Fees.  Customer shall pay ITBD as set forth on the Statement of Work, within the time period set forth on the Statement of Work. Unless otherwise provided  in a Statement of Work, all fees will be due and payable in advance of the provision of the Services.  If applicable, recurring payments made by ACH will be deducted from Customer’s designated bank account on the first business day of the month in which the Services are to be provided, and if applicable, Customer’s designated credit card will be charged on the first business of the month in which the Services are to be provided. 

3.2 Payment Methods.  The fees listed in a Statement of Work assume that all payments will be paid in cash by electronic transfer (i.e., ACH). If Customer desires to pay by credit card or by check, then (i) for credit card payments, ITBD reserves the right to charge a convenience fee equal to the actual costs incurred to accept credit card payments, which will not be more than four percent (4%) of the amount invoiced; and (ii) for payments by check, ITBD we will add a convenience fee to the invoice equal to three percent  (3%) of the amount invoiced. When enrolled in an ACH payment processing method, Customer authorizes ITBD to electronically debit Customer’s designated checking or savings account for any payments due under the Statement of Work.  This authorization will continue until otherwise terminated in writing by Customer.  ITBD will apply a $20.00 service charge (or the maximum amount permitted by law, whichever is less) to Customer’s account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions. 

 3.3 Nonpayment.  Fees that remain unpaid for more than fifteen (15) days when due will be subject to interest on the unpaid amount(s) from the due date until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. ITBD reserves the right, but not the obligation, to suspend part or all the Services without prior notice to Customer if any portion of undisputed fees are not timely paid. Monthly or recurring charges (if applicable) will continue to accrue during any period of suspension.  Notice of disputes related to Fees must be received by ITBD within sixty (60) days after the date on which an applicable invoice is delivered to Customer, otherwise Customer will waive its right to dispute the Fee thereafter. ITBD also reserves the right to charge a reasonable reconnect fee (of no more than 10% of your monthly recurring fees) if Services are suspended due to nonpayment. 

 3.4 Rate Increases.  ITBD reserves the right to increase its rates by providing notice of the increase to Customer; provided, however, if an increase (either an individual increase or all increases in a calendar year, in the aggregate) is more than seven and a half percent (7.5%) of the rates in the prior calendar year, then Customer will be provided with a sixty (60) day opportunity to terminate the Services by providing ITBD with written notice of termination. If  Customer terminates within the sixty-day period, then Customer will be responsible for the payment of all fees that accrue up to the termination date and all preapproved, non-mitigatable expenses that ITBD incurred in the provision of the Services through the date of termination. Customer’s continued acceptance or use of the Services after this sixty (60) day period will indicate your acceptance of the increased fees. 

4. Expenses.  Customer will reimburse ITBD or its IT Staff Personnel, as applicable, for such  expenses that are set forth on the Statement of Work.   

5. Relationship. 

 5.1 Independent Contractor.  ITBD and its IT Staff Personnel shall be acting only in the capacity of an independent contractor insofar as this Agreement is concerned, and will not be deemed to be for any purpose, an employee, agent, partner, co-venturer, franchisee or representative of Customer.  As such, the payments made by Customer to ITBD hereunder are only for performance of the Services in accordance with the terms and conditions of this Agreement. 

 5.2 Taxes.  ITBD shall be responsible for paying any and all taxes, including but not limited to, income, unemployment insurance, worker’s compensation, and Social Security taxes pursuant to any law or requirement or any governmental body relating to ITBD or its IT Staff Personnel.  Customer shall be responsible for paying any sales or use tax imposed upon the Services by applicable law and set forth in ITBD’s invoices. 

6. Ownership of Intellectual Property. 

6.1 General.  Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement or any Statement of Work shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property to the other party.  If ITBD provides licenses to Customer for third party software under a Statement of Work, then Customer understands and agrees that such software is licensed, and not sold, to Customer.  Customer is allowed to use such third party software subject to the terms and conditions (i) of this Agreement, (ii) of the applicable Statement of Work, and (iii) any applicable end user license agreement; no other uses of such third party software are permitted.  To the maximum extent permitted by applicable law, ITBD makes no warranty or representation, either expressed or implied with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose. 

6.2 Developments.  Any and all inventions, discoveries, developments, innovations or deliverables developed by ITBD or any IT Staff Personnel in the course of performance of the Services shall be the exclusive property of Customer, including all changes and additions to any deliverables and all derivative works thereof made by ITBD or its IT Staff Personnel (collectively, “Work Product”).  ITBD acknowledges that all Work Product is “Works Made for Hire” as defined in Title 17 §101 and §201(b) of the United States Code and are therefore owned and authored by Customer. To the extent that any ownership of any Work Product does not vest in Customer by operation of law, ITBD, at no charge to Customer, hereby unconditionally assigns and agrees to assign upon creation all right, title and interest in and to the Work Product and all intellectual property rights therein and will cause its IT Staff Personnel to do the same.  To the extent that any of the foregoing rights, including so-called “moral rights” may be inalienable, ITBD shall waive and agree not to exercise such rights, and if such waiver and agreement are deemed invalid, to grant Customer the exclusive, perpetual, irrevocable, worldwide, assignable, sublicenseable and royalty-free license to exercise all rights in such items without any obligation of attribution, royalty or consent and will cause its IT Staff Personnel to do the same. 

6.3 Cooperation.  ITBD will, at no charge to Customer, execute, and cause each IT Staff Personnel to execute, all documents and take any action necessary or helpful to enable Customer to secure patents, copyrights or other proprietary rights in the Work Product.  In connection with any document necessary to apply for, prosecute, obtain or enforce any patent, copyright or other right or protection relating to any Work Product in any country, whether due to death, mental or physical incapacity, or other cause, ITBD hereby irrevocably designates and appoints Customer as ITBD’s agent and attorney-in-fact, to act for and in ITBD’s behalf and stead, for the limited purpose of executing and filing such documents and doing all other lawfully permitted acts to further the prosecution, issuance and enforcement of patents, copyrights or other intellectual property rights based on the Work Product with the same force and effect as if executed and delivered by ITBD. 

6.4 Ownership.  All Confidential Information, files, records, documents, blueprints, specifications, letters, notes, media lists, original artwork/creative, notebooks, software and other items relating to the business of Customer, whether prepared by ITBD or its IT Staff Personnel or otherwise coming into its possession through its performance of the Services, shall remain the exclusive property of Customer and except as explicitly provided herein, no implied license to use any of the foregoing is granted. 

7. Representations, Warranties and Covenants. 

7.1 Conflict of Interest.  ITBD represents, warrants and covenants to Customer that the entering into and carrying out the terms and conditions of this Agreement will not violate or constitute a breach of any obligation binding upon ITBD. 

7.2 Performance.  ITBD represents, warrants and covenants that it and its IT Staff Personnel will fully perform the Services for Customer in a diligent and professional manner, and the Services will strictly comply with: (a) the highest applicable industry standards; (b) all applicable Customer policies and procedures; and (c) all applicable, federal, state and local laws in connection with its performance under this Agreement.  

7.3 Continuation.  Each of the foregoing representations, warranties and covenants is continuous in nature and will be deemed provided by ITBD on the Effective Date. 

8. Confidentiality.   

8.1 Definition.  Confidential Information means all non-public information provided by one party (“Discloser”) to the other party (“Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient, or (iii) is or was lawfully and independently provided to the Recipient prior to disclosure by the Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information. 

8.2 Degree of Care.  Each party will exercise the same degree of care with respect to the Confidential Information its receives as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care. 

8.3 Use for Discharge.  Each party will keep the other party’s Confidential Information confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the discloser in writing, or (ii) as needed to fulfill the receiving party’s obligations under this Agreement.  In any event, a party receiving Confidential Information shall tailor its permitted disclosure to the minimum amount necessary to fulfill that party’s obligations under this Agreement. 

8.4 Compelled Disclosure.  If a party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, it will immediately notify the other party in writing of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive the Recipient’s compliance with the provisions of this Section.  The  Recipient will use its best efforts, at the Discloser’s expense, to obtain or assist the Discloser in obtaining any such protective order.  Failing the entry of a protective order or the receipt of a waiver hereunder, a Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that it has been advised, by written opinion from its counsel, that it is legally compelled to disclose. 

8.5 Additional NDA.  In ITBD’s  provision of the Services, ITBD and Customer may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information. In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information. If in the normal provision of the Services ITBD is in receipt of or otherwise have access to personal health information (as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)), ITBD will be Customer’s business associate as that term is defined under HIPAA and will enter into a mutually agreeable Business Associate Agreement. 

9. Indemnification.  Each party shall indemnify and hold the other party and its officers, directors, shareholders, employees, agents, licensors, and other affiliated entities (collectively, the “Affiliates”) harmless from and against any and all liabilities, losses, damages, claims, costs, causes of action and expenses, including, but not limited to, the costs of defense and attorneys’ fees, suffered, paid or incurred by a party or any and all of its Affiliates, whether or not suit is filed, arising out of, resulting from or connected with, in whole or in part, a party’s breach of any of its obligations under this Agreement.  

10. LIMITATION OF LIABILITY.  IN NO EVENT WILL ITBD BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF IT HAD KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE.  IN ADDITION, IN NO CIRCUMSTANCES WILL ITBD’S LIABILITY EXCEED  THE FEES PAYABLE UNDER ANY STATEMENT OF WORK. 

11. Insurance. ITBD shall, at its sole expense, maintain professional liability insurance sufficient to cover all of its obligations hereunder and as further described in any Statement of Work, including, but not limited to an errors and omissions liability insurance policy in a minimum amount of $1,000,000 per occurrence, naming Customer as an additional insured.  Upon request by Customer, ITBD shall provide to Customer, copies of certificates of insurance the insurance coverage that ITBD has in effect.  Failure by ITBD to maintain such insurance at all times as required by this Agreement shall be deemed a material breach.  ITBD’s failure to cure such breach shall be grounds for immediate termination of this Agreement. 

12. Term; Termination; Survival. 

12.1 Term and Termination  Rights.  This Agreement will commence on the Effective Date, and will continue in full force for a period of one year (“Term”) unless terminated sooner as set forth below. 

12.2 Termination Without Cause.  Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, a Statement of Work in progress or if amounts are due and owed by you to ITBD.  In addition, no party will terminate an SOW without cause prior to the Statement of Work’s natural or stated expiration or termination date.  If Customer terminates a Statement of Work without cause and without ITBD’s consent, then Customer will be responsible for paying the termination fee described in the “Termination for Cause” section, below.  If no Statement of Work is in progress, then this Agreement will expire thirty (30) days after the last date on which Services are provided or facilitated by ITBD to Customer. 

12.3 Termination For Cause.  In the event that one party (a “Defaulting Party”) commits a material breach under a Statement of Work or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant Statement of Work (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Customer) following receipt of written notice of breach from the non-Defaulting Party.   

12.4 Effect of Termination. If ITBD terminates this Agreement or any Statement of Work For Cause, or if Customer terminates any Statement of Work without cause prior to such Statement of Work’s expiration date, then ITBD shall be entitled to receive, and Customer hereby agrees to pay to ITBD, all amounts that would have been paid to ITBD had this Agreement or SOW (as applicable) remained in effect.  If Customer terminates this Agreement or a Statement of Work For Cause, then Customer will be responsible for paying only for those Services that were properly delivered up to the effective date of termination; and, if applicable, Customer will be refunded any pre-paid fees paid to ITBD for Services that were not delivered satisfactorily.  

13. Restrictive-Covenant. 

13.1 Non-Solicitation. During the Term and for a period of twenty-four (24) months thereafter (“Non-Solicit Period”), Customer will not directly or indirectly: (i) solicit, or attempt to solicit the services of any employee or independent contractor of ITBD (“Restricted Person”), or otherwise interfere with the employment or independent contractor relationship between ITBD and any such Restricted Person; or (ii) hire any current employee or independent contractor of ITBD or, without ITBD’s written consent, hire any employee or independent contractor that has worked for ITBD in the three (3) month period prior to any determination date.   

13.2 Hiring Fee.  During the Term, if Customer desires to employ an employee of ITBD, Customer shall pay ITBD a one-time fee for such employee equal to the amounts payable to ITBD for such employee’s services for a period of one year.  

14. General Provisions. 

14.1 Notices.  Any notice required to be given pursuant to the provision of this Agreement shall be in writing and shall be deemed to have been given at the earlier of the time when actually received as a consequence of any effective method of delivery or the day of confirmed delivery via professional courier, overnight delivery service or certified or registered mail addressed to the party for whom intended at the address provided herein or at such changed address as the party shall have specified by written notice.  References to “writing” or “written” in this Agreement will be deemed to include an electronic message that is sent to the e-mail address indicated below using standard Internet protocols and whose receipt is confirmed by the recipient to the sender.  

Customer e-mail address: To be provided during onboarding 
ITBD e-mail address: accounting@itbd.net 

14.2 No Assignment.  ITBD will not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of Customer.   Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. 

14.3 No Third-Party Beneficiaries.  ITBD and Customer intend that this Agreement will not benefit or create any right or cause of action in or on behalf of any person or entity other than the parties.    

14.4 Reasonableness of Agreement and Severability.  If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired thereby. 

14.5 Injunctive Relief.  Violation of this Agreement by ITBD would cause irreparable harm on Customer which irreparable harm may not be compensable entirely by award monetary damages. The parties agree that injunctive relief is an appropriate remedy without the necessity of posting a bond.  Such relief shall be in addition to other remedies at law or in equity. 

14.6 Enforceability/Construction.  Section headings are provided for convenience only and are not to be used to construe or interpret this Agreement.  Whenever the words “include” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.”  The words “hereunder” or “hereto” refer to the Agreement.  No modification or waiver is effective unless in writing.  The failure of either party to insist upon the strict performance of any of the provisions of this or the failure of either party to exercise any right or remedy hereby reserved shall not be construed as a waiver of any such provisions, rights or remedies, or as a waiver of any subsequent breach thereof. 

14.7 Governing Law and Attorneys’ Fees.  This Agreement will be construed as having been made in and will be governed in accordance with the laws of the State of New Jersey, excluding any applicable conflict of law provisions.  Any legal proceeding shall be commenced only in the courts located in the State of New Jersey, and both parties consent to the personal jurisdiction of New Jersey courts and agree that such jurisdiction shall be exclusive.  If any legal action or other proceeding is brought for the enforcement of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs.   

14.8 Entire Agreement.  This Agreement includes any attachments bearing the signature of both parties, including, but not limited to, exhibits, addenda or Statement(s) of Work, now or hereafter attached hereto.  Further, the parties agree that the Recitals contained herein are specifically incorporated into the Agreement by the reference herein.  In addition, this Agreement constitutes the exclusive and entire agreement between the parties with respect to its subject matter and, as of the Effective Date, supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral, relating to its subject matter.  Neither party will be bound or liable to the other party for any representation, promise or inducement made by any agent or person in the other’s employ that is not embodied in this Agreement.  No changes or modifications of or additions to this Agreement shall be valid unless the same shall be in writing and signed by each party hereto. Terms and conditions contained in ITBD’s invoices and other documents provided by ITBD to Customer in connection with this Agreement shall not amend the terms of this Agreement and shall have no other effect on the parties’ obligations hereunder.   

15. Acceptance. By accepting and e-signing this quote, you are agreeing to all of the terms and conditions in the master services agreement attached hereinto or located here along with the terms of this scope of work. 

Last updated: Sep. 24, 2024