ShowTech Master Services Agreement – Updated 11/2024
This Master Services Agreement (the “Agreement”) is made between (“Client”) and ShowTech Solutions, Inc., a Florida corporation having its principal place of business at 200 N. Pierce St, #300, Tampa FL 33602 (“ShowTech”). By accepting ShowTech’s services, you agree to be bound by the terms of this Agreement. Throughout this Agreement, the terms “you” and “your” refer to the Client, and the terms “we” and “our” refer to ShowTech.
1. This Agreement and all exhibits and addenda hereto and thereto set forth the terms and conditions governing ShowTech’s services to Client. As part of our services, we will provide you with a written proposal, quote, order, arrangement letter, service level agreement, and/or statement of work (the “Quote”) that will provide details of our services, including deliverables, assumptions, staffing, time and fee estimates, and pricing, as applicable. The terms and conditions of this Agreement are incorporated by reference into and made a part of each Quote. The parties acknowledge that the body of this Agreement and the Quote are intended to be consistent and complementary; however, in the event of any conflict between the Quote and the body of this Agreement, this Agreement will control.
2. Our estimated time for completion and estimated fees are based, in part, on our experience with similar projects and on the services scope, assumptions and deliverables discussed in each Quote. You agree to timely perform all tasks for which you are responsible. You acknowledge that our performance is dependent upon the timely and effective satisfaction of your responsibilities, as well as your timely decisions and approvals, upon which we will rely. To the extent that the assumptions described in the Quote are not met or turn out to be inaccurate, or there is a material delay in your making necessary decisions or performing your responsibilities, the cost and delivery schedule of the services may be impacted.
3. In connection with the services, each of us may have access to proprietary information, trade secrets, and/or other confidential information made available by the other, and each of us agrees to protect that confidential information in the same manner as we would protect our own confidential information of like kind, and in any case with no less than a commercially reasonable degree of care. Each party understands that confidential information of the other includes designs, creations, improvements, works of authorship, processes, know-how, techniques, ideas, discoveries, and/or developments previously created and utilized by such party, whether or not copyrightable, trademarkable or patentable, hereinafter referred to as intellectual property. All rights, title and interest in such intellectual property, including the right to reproduce copies, to prepare derivative works, and to distribute copies to the public by sale or other transfer of ownership shall remain with the originating party, and the other party shall not hold any right, title or interest in such intellectual property. Upon termination of this Agreement, each party will either return to the other party or destroy the other party’s confidential information. Client acknowledges that any confidential information (including passwords and Client data) not returned to Client by ShowTech upon termination of this Agreement shall be destroyed, and ShowTech shall have no liability for destroying any such confidential information to Client.
4. Client and ShowTech will maintain joint ownership of all deliverables created by ShowTech for Client as part of the services, and neither party will be obligated to pay the other for future use of the deliverables. Subject to our mutual obligations of confidentiality, ShowTech will be free to use the concepts, techniques, know-how, work products, and deliverables used in connection with the services. In addition, ShowTech will continue to be free to perform similar services for our other clients using the knowledge, skills and experience obtained during completion of the services.
5. We warrant that our services will be performed in a professional and workmanlike manner, and we will correct any work not in compliance with this warranty brought to our attention within ninety (90) days after the later of the date the work was completed or the date the problem was discovered, provided that in any event we must be notified within six (6) months after the date the work is completed. Client acknowledges that certain cyber security threats may impact the services. ShowTech may provide you with recommendations for additional security upgrades, software, etc. ShowTech shall not be responsible for any cyber attacks or security breaches resulting from any cause other than same directly resulting from the actions of ShowTech, including those resulting from Client’s failure to obtain or maintain recommended security upgrades and software.
6. ShowTech does not warrant and shall not be responsible for the performance of any third-party vendor’s (such as Microsoft’s) products or services. Your sole and exclusive rights and remedies with respect to any third-party product or service, including rights and remedies in the event a third-party product or service gives rise to an infringement claim, will be against the third-party vendor and not against us.
7. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5 OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHOWTECH DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT BEING LIMITED TO, ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, SHOWTECH DOES NOT PROVIDE ANY ASSURANCE UNDER THIS AGREEMENT, INCLUDING WORK PERFORMED ON MOBILE PHONES, WITH RESPECT TO ANY CLIENT DATA WITH WHICH SHOWTECH MAY COME IN CONTACT. SHOWTECH PROVIDES NO WARRANTY WITH RESPECT TO CLIENT DATA AND, INCLUDING WITHOUT LIMITATION DATA PROTECTION, BACKUP, PRESERVATION OR MONITORING SERVICES, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DEGRADATION OR CORRUPTION OF CLIENT DATA.
8. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHOWTECH SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER IN AN ACTION OF CONTRACT, STRICT OR STATUTORY LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY (INCLUDING BREACH OF WARRANTY), ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF SHOWTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT BEING LIMITED TO, DAMAGES FOR LOSS OF USE, DELAY, LOSS OF BUSINESS, LOSS OF REVENUE, PROFITS OR SAVINGS, BUSINESS INTERRUPTION LOSS, LOSS OR CORRUPTION OF INFORMATION OR DATA, LOSS OF PRIVACY, LOSS OF GOODWILL, AND LIABILITY TO THIRD PARTIES.
9. IN NO EVENT WILL SHOWTECH’S LIABILITY ARISING OUT OF OR IN ANY MANNER CONNECTED WITH OR RELATING TO THIS AGREEMENT EXCEED, TOTAL SERVICE FEES (EQUIPMENT FEES SPECIFICALLY EXCLUDED) PAID TO US BY YOU UNDER THIS AGREEMENT FOR THE ONE HUNDRED EIGHTY (180) DAY PERIOD IMMEDIATELY PRECEDING THE ACT, EVENT OR OMISSION SERVING AS THE BASIS FOR THE CLAIM GIVING RISE TO SUCH LIABILITY OR OBLIGATION.
10. Each party agrees to indemnify, protect, defend and hold harmless the other party from and against any and all third party claims, demands or liability resulting from (a) bodily injury to any person (including injury resulting in death) or damage to property arising under this Agreement, provided such injury or property damage is due to the negligent or willful acts or omissions of the indemnifying party or the indemnifying party’s employees or agents or (b) any act or omission constituting negligence or willful misconduct by the indemnifying party.
11. Except for the obligation to make payments due hereunder, neither party will be liable for any delays or failures to perform due to causes beyond such party’s commercially reasonable control.
12. We reserve the right, in our sole discretion, to determine which personnel will perform the work. For the duration of this Agreement and for a period of one year after the services are completed, each party agrees not to employ or solicit the employment of the other party’s personnel; provided, however, that this provision will not apply to personnel who respond to a general advertisement, online job posting, or other broad solicitation not directly or indirectly targeting such party or its personnel. The parties agree that a breach of this covenant would result in significant damages that would be difficult to precisely ascertain or quantify. Therefore, if either party breaches this covenant by employing or soliciting the employment of any of the other party’s personnel, then the breaching party agrees to pay to the other party an amount equal to the aggregate compensation paid to such personnel by the non-breaching party during the one year preceding the hiring of such personnel, as liquidated damages. The parties expressly acknowledge that any provisions of this Agreement governing assignability or assignment apply to the covenants and understanding set forth in this section.
13. If you terminate this Agreement for any reason, except for termination due to ShowTech’s breach of its obligations under this Agreement, you shall pay us all fees and expenses due under the Agreement for the then current term. If you terminate this Agreement for ShowTech’s breach of its obligations under this Agreement, you shall pay us for our reasonable fees and expenses incurred or due under the Agreement through the effective date of termination subject to the provisions set forth in Section 14. Upon termination, ShowTech will aid Client in the transition to a new service provider at ShowTech’s then-current rates.
14. Appropriate retainers and billings for fees and out-of-pocket expenses will be agreed upon. Following any up front retainer payments, billings are typically performed monthly. Retainers or down payments will be applied to services invoices only after fifty percent (50%) of the anticipated fees under the applicable Quote have been billed and collected. Payment of all billing amounts becomes due and payable upon receipt (Net 0).
ShowTech reserves the right to increase prices for services no more than once per year. Any such price increases shall take place annually on the contract renewal date which is based on the first invoice sent to the customer for any type of service. Client understands and agrees that, notwithstanding the foregoing, during the term of this Agreement, third parties may increase the costs of certain materials and services incorporated into the services provided by ShowTech, and ShowTech may pass through these increased costs to Client. Specifically, Microsoft requires a one (1) year commitment for NCE Microsoft licensing based on the Microsoft Renewal Date.
Regardless of the expiration or earlier termination of this Agreement, Client acknowledges and agrees that it will be responsible for any amount remaining for any such Microsoft licensing or third party pass through fees incurred by ShowTech during the then current term of the Agreement.
15. Any unpaid amount after forty-five (45) days will bear and accrue interest at the rate of one and one-half percent (1.5%) per month (or such lesser rate as is required to comply with applicable law) until paid in full. If it becomes necessary for ShowTech to seek collection of any amounts due and owing, you will be responsible and liable for any and all reasonable collection costs, including reasonable attorneys’ fees, even if a collection suit is not instituted. In addition, ShowTech reserves the right, following notice, to suspend or discontinue its performance or provision of products and services hereunder for your lack or delinquency of payment of any amounts due, or for any other material failure or breach of this Agreement including your performance under all significant project assumptions. Client hereby waives any right it may have to dispute an invoice after thirty (30) days from the date of such invoice.
16. We are entitled to be reimbursed for our expenses. Expenses may include, but are not limited to: travel costs (mileage driven by our consultants in getting to your location which exceeds their normal commute to/from our office, parking, tolls, airfare, etc.), out-of-town costs (hotels, meal allowances, long distance, etc.), and other out-of-pocket costs (conference calls, duplicating, courier fees, etc.) as incurred.
17. Client, at its own expense, shall comply with any laws or regulations, including trade restrictions and embargos, relating to products acquired and shall procure all licenses and pay all fees and other charges required thereby. Client shall limit its actions to conform to applicable laws and regulations regarding the use, licensing, import, export or re-export of the products, including regulations of the U.S. Department of Commerce and/or the U.S. State Department, to the extent applicable.
18. This Agreement shall be construed and governed by the internal laws of the State of Florida (except that any law that would cause the application of the substantive or procedural law of any other state shall not apply). Each party irrevocably agrees that any legal action, suit, or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in the appropriate state or federal district court sitting in Hillsborough County, Florida.
19. Should either of us institute legal action concerning this Agreement, the prevailing party will be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and all other related court costs.
20. EACH PARTY, AS A CONDITION OF ITS RIGHT TO ENFORCE OR DEFEND ANY RIGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT, WAIVES ANY RIGHT TO A TRIAL BY JURY AND AGREES THAT ANY ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
21. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that Client may not assign or transfer its rights or obligations under this Agreement without the prior written consent of ShowTech, and any purported assignment shall be void.
22. This Agreement and the applicable Quote set forth the complete agreement between us and supersede all prior agreements or understandings relating to any project. No amendment, alteration, or modification of this Agreement will be valid or binding upon either party except by an instrument in writing signed by both of us.
23. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
24. The initial term of this Agreement shall be for one (1) year and shall begin and continue in full force from and after the Effective Date. This Agreement shall renew automatically for successive one (1) year periods unless terminated by a party by providing written notice to the other thirty (30) days prior to the end of the then-current term.
25. To the extent that you have in your possession any equipment or other personal property owned by ShowTech (“ShowTech Personal Property”), from the date you acquire possession of the ShowTech Personal Property and for so long as you retain such possession, you assume all risk of loss for theft, damage, destruction or other injury to the ShowTech Personal Property from any cause. No such loss or damage shall impair any of your obligations under this Agreement. In the event of damage or loss to the ShowTech Personal Property and irrespective of payment from any insurance coverage (but with credit for such payment), you will, at our option, (a) repair the ShowTech Personal Property, (b) replace the ShowTech Personal Property and transfer clear title to such replacement property to us, whereupon such replacement property shall be deemed ShowTech Personal Property for all purposes, or (c) reimburse us for the value of such ShowTech Personal Property.