MASTER SERVICE AGREEMENT

This Master Service Agreement (the “MSA”) sets out the terms by which Performance Dashboard, an Oklahoma Limited Liability Company (“PD”) provides all services and products to the Client, as identified by the Client in any PD authorized Client Request for Services Form or similar form found at https://client.performancedashboard.com/reports.asp and submitted by the Client to, and accepted by PD whether one or more, or by request by the Client and acceptance by PD (collectively, the “Client Request”) which is made a part of, and incorporated into this MSA.

• A. PD provides clients and authorized organizational consultants an integrated suite of web based organizational performance management solutions throughout the world, including human resource, organizational development, strategic planning, and business consulting.

• B. PD’s products and services also:
  • i. Assist employers, management leaders, and organizations assess perceptions of employees in their work environment;
  • ii. Assist individual employee performance;
  • iii. Assist in improving organizational health and performance;
  • iv. Assist employers, management leaders and organizations in ensuring management, operations, and culture are unified, by creating target action plans for improving organizational effectiveness through employee and contractor performance.

  (collectively, the “Services”).

1. 1. Engagement and Scope of Work.
      The scope of work for the Services is described in this MSA and the Client Request. PD or Client may terminate the MSA upon written notice provided, however, that any such termination shall not affect Client’s obligation to pay for the Services rendered up to termination of the MSA. PD reserves the right to outsource and assign duties and obligations under the MSA to its authorized contractors as it deems appropriate to effect the purposes of the MSA. PD and Client will keep each other informed on changes in status of the Services, and respond to each other’s inquiries or other communications without undue delay. PD and Client agree to accept information, communications, and billing through electronic communications, including email, at the email address(es) reflected in the Client Request and as identified by PD on its website.

 

1. 1. Description and Nature of Services.
      Client may submit written requests to PD to change the scope of Services under the MSA. If so, PD may, at its discretion, consider accepting such change requests, but PD has no obligation to do so. If PD elects to consider such a change request, then PD will promptly notify Client if it believes that the change request requires an adjustment to the fees charged under the MSA or to Services to be performed under the MSA. The parties will negotiate in good faith a reasonable and equitable adjustment to the fees and/or Services to be performed. PD will continue to perform Services under the MSA and will have no obligation to perform any change request unless the parties have agreed in writing to such an equitable adjustment.

 

1. 1. PD’s Good Faith; Indemnity; Non-Interference.
      Because the Services depend on performance by Client, PD cannot warrant or guarantee performance and/or completion of the Services as described in the MSA. While PD will use all reasonable efforts to achieve the agreed dates for the provision of the Services, PD cannot be liable for failure to achieve those dates. Time for the provision of the Services by PD shall not be of the essence. With regarding the processing of data: (i) it may not be possible to recover the data in whole or in part; (ii) PD may not gain access to some or all of the hardware, software, or other materials and equipment detailed in the MSA; (iii) it may become necessary to request additional equipment not included in the MSA, and (iv) the provision of the Services may lead to losing business operating time or other interruption to service for Client or any third party.Client further acknowledges that the Services contemplated are in a rapidly changing area of technology, human relations, and law. As a consequence, Client shall indemnify and hold PD, its principals, officers, employees, affiliates, and agents harmless and immune from any damage, action, or liability occasioned by the rendering of the Services, or disclosure of reports to any other party. Client acknowledges all responsibility, accountability, and liability for all aspects and consequences arising from PD good faith efforts, activities, and the Services rendered for Client.Client’s obligations shall include, but not be limited to: (i) ensuring that PD’s representatives shall have unrestricted and safe access to the Client premises and working space, regardless of whether the Services be provided (in full or in part) at the premises of Client, or a third party; (ii) providing to PD all data, information, and any other materials required by PD to perform the Services in the MSA; (iii) providing PD with sufficient working space and office support (including telephones, photocopying equipment) as PD may reasonably request while on or at Client’s premises; (iv) ensuring all relevant security, health and safety rules and procedures are brought to the attention of PD’s representatives attending the premises where the Services are performed; (v) providing qualified personnel capable of performing Client’s duties and tasks in relation to the Services, and who shall perform such other duties and tasks as may be reasonably be required to permit PD to perform the Services; (vi) defending all claims with counsel satisfactory to PD even if such claims are groundless; (vii) conducting negotiations of resolution of such claims and assuming financial responsibility for all settlements and resolutions of such claims; and (viii) paying, and discharging, when and as the same may become due, any and all judgments rendered against PD arising from the rendering of its Services.

 

1. 1. Computer, Data, Software, and Internet Use Security.
      PD protects its proprietary property including data, hardware, software, and other systems, by utilizing reasonable care in the employment of various computer programs, applications, and other passive and active protective measures against viruses, worms, hacking, interruption, interference, and similar and other destructive files or harmful activities. PD expects Client to reasonably employ similar methods of sufficient quality and quantity with Client’s computer systems, data, hardware, software, and internet use, to support and compliment PD security measures.PD accepts no responsibility or liability, express or implied, for any damages resulting from Client’s (including Client’s agent’s) acts or omissions regarding any computer system, network or other equipment related to Services provided by PD, or any hardware, software, or data device, computer, or other equipment involved in PD’s Services. Such actions and/or omissions of Client could include, but are not limited to, failure to consistently and conscientiously employ reasonably sufficient data and systems protection measures, use of insufficient, obsolete, or poor quality data protection programs, failure or compromise of any Client computer system or application, unauthorized or illegal access of prohibited internet sites or files, and negligent handling or preservation of critical data. Client assumes and agrees to indemnify and defend PD from any general, consequential, indirect, incidental, exemplary, punitive, special, or other damages resulting from such actions and/or omissions of Client, or from Client’s use of the internet and PD’s database and software, including, without limitation, business interruption or loss of business information or data of PD, PD’s customers, vendors, agents, or cooperative entities, damage to PD’s goodwill, computer systems, networks, data files, or other property, even if PD has been advised of the possibility of such damages.Client acknowledges there are inherent risks to the shared nature of the Services provided through the internet by PD, and Client agrees to take full responsibility for taking all reasonably necessary and adequate security precautions and safeguarding the data and restricted access to the data. Client agrees to notify PD immediately, by the most expeditious method possible, if Client suspects or has reason to believe that PD’s Services, data, and/or processes or software are being stolen, accessed by an unauthorized user, damaged, destroyed or otherwise used for a fraudulent or illegal use.

 

1. 1. Fees Incurred, Expenses Advanced, and Estimates Provided.
      Client agrees to pay PD under the fee schedule for the Services as set forth in the MSA and under the Client Pricing Schedule at https://client.performancedashboard.com/reports.asp, which may be amended from time to time by PD, and a copy of which is incorporated to this MSA. PD’s hourly fees in providing the Services are computed in 1/10th hour increments, if there are no predetermined fees and costs for deliverables in the Client Request. While PD may provide informal estimates of the amount necessary to perform the Services enumerated in the MSA, Client understands that the actual amounts may vary due to unforeseen circumstances. Client understands any estimate is not binding or all inclusive dollar figure for the rendering of the Services, unless agreed to in writing by PD. If requested, PD may provide the Client with a written or oral estimate of the fees and costs for the services to be provided by PD for the Client. However, such estimate is not to be considered a guarantee of the maximum charge for completing the work. An estimate may often prove to be incorrect for a great variety of reasons including, but not limited to, the possibility that the estimate was made knowing the actual or eventual factual situation; or, the possibility that subsequent actions of the involved parties could cause additional work not originally anticipated, or sometimes, unavoidable delays. Revised estimates of fees and costs will be furnished to the Client, upon the Client’s written request, as the work progresses.Client also agrees to pay all incidental expenses reasonably incurred by PD for the rendering of the Services, including without limitation: any legal fees and costs incurred by PD in the rendering of the Services, messenger fees, travel expenses, long distance telephone and conference calls, photocopying, facsimile transmissions, and electronic media duplication or conversion. Work involving travel away from the PD’s offices is billed under the PD Pricing Schedule. When using a PD personal vehicle (and not a rental vehicle), driving mileage is billed at applicable tax code rates then in effect, and other travel expenses including, but not limited to, airfare, other transportation expenses, food and lodging are billed at the actual amount incurred.

      Special projects (e.g., special request programming by Client not contemplated by the Services by PD) must be paid for in advance by Client. The cost advanced of unique software or hardware will be charged to Client; PD will notify and obtain Client’s approval before any special purchases of hardware or software over $1,000.00 per annum. Subcontracted Services for special projects will be billed at the rate of 133% of the actual cost of such Services. All subcontracted Services in increments of over $1,000.00 shall be approved in advance by Client.

      All fees, expenses, and other amounts payable to PD under this MSA include no sales, use, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Client (excluding any sales, use, or other taxes solely the responsibility of PD). Client will promptly reimburse PD for any such amounts that PD pays on Client’s behalf.

 

1. 1. Billing; Initial Retainer; Replenishing Retainer.
      PD bills its clients on a monthly or more frequent basis in accordance with its PD’s Pricing Schedule. PD’s statements will inform Client of the Services performed. Statements for work performed and expenses incurred are due on receipt and time for payment shall be of the essence. All unpaid balances will bear interest daily at the rate of 1.5% per month commencing on the last day of the month following the date of the statement. PD statements are sent to Client via electronic means on or about the 26th of the preceding month or other periodic basis. If a statement is not paid when due, and no less than ten (10) days from receipt by Client, PD reserves the right to cease providing Services.The advance retainer for Services (if any is required) is as shown on the Client Request and because of these matters, fees incurred and expenses advanced will likely exceed the original advance retainer. Client shall maintain a minimum replenishing retainer as provided in the Client Request, if any. A replenishing retainer means that to the extent the retainer already paid by Client falls below the amount on the Client Request, besides paying any outstanding balance, Client shall pay such funds to maintain the minimum retainer. When the Services conclude, if any part of Client retainer is unused, the balance will be returned to Client within thirty (30) days.Should Client become insolvent, cannot pay its debts as they fall due, commit any act of bankruptcy, or go into liquidation, have a receiver appointed, or arrange with its creditors or suffer any similar action to be taken: (i) if the Services have been completed but not paid, all sums due and owing under the MSA shall become immediately due notwithstanding any previous agreement or arrangement to the contrary; (ii) if the Services have not been completed PD shall have the right to suspend further performance of Services under the MSA and recover from Client an appropriate proportion of monies due under the MSA to reflect the Services provided and all costs incurred by PD.

 

1. 1. Cancellation and Postponement.
      Client may not cancel or postpone the MSA, except with the written consent of PD and on terms that the Client shall: (i) immediately pay for all unpaid work; (ii) pay such cancellation or postponement fee as PD may at its sole discretion consider reasonable; and (iii) indemnify PD in full against all loss (including loss of profit) costs (including cost of all time and materials purchased or used), and damages, charges and expenses incurred by PD because of such cancellation or postponement.

 

1. 1. Uncontrollable Circumstances.
      Neither party will be responsible for any failure or delay in performance under the MSA (except for the payment of money) due to causes beyond the respective party’s reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action. Regardless of the foregoing, Client shall be required to immediately pay all outstanding amounts for Services previously performed by PD under the MSA.

 

1. 1. Intellectual Property Rights.
      Client acknowledges that PD provides services to other clients, and agrees, subject to PD’s confidentiality obligations in this MSA, that nothing in this MSA shall be construed to prevent PD from carrying on such business during the term of this MSA. Client agrees that as part of PD’s provision of the Services hereunder, PD may utilize proprietary works of authorship that have not been created specifically for Client, including without limitation, software, methodologies, tools, specifications, drawings, sketches, models, samples, records, and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, which have been originated, developed, or purchased by PD or by third parties under contract to PD (all of the foregoing, collectively, “PD’s Information”), and PD’s Information and PD’s administrative communications, records, files and working papers relating to the Services are and shall remain the sole and exclusive property of PD.Nothing in the MSA shall be construed as assigning to Client or granting Client any interest in any confidential, proprietary, and intellectual property rights in the Services, and Client shall not question or dispute the ownership by PD or any other party of the intellectual property rights. The intellectual property rights in any material or deliverable of the Services are the exclusive property of PD, and Client shall acquire no right, title or interest in such intellectual property rights. Any intellectual property rights which are created or contributed to by PD while providing the Services belong to PD and Client acknowledges it shall have no right or interest in such intellectual property rights, and Client shall not be entitled to use it in any other form or in any other media without PD’s prior written consent.PD shall retain copyright in all documentation, reports, and other material which PD creates in providing the Services. Client will acquire no intellectual property rights in those publications or materials, and Client will not be entitled to use it in any other form or in any other media without PD’s prior written consent other than contemplated by this MSA and the Client Request. While PD strives to develop its Services independently and with the joint efforts of others, PD makes no warranty, either express or implied, that Client can make use of the Services free from any infringement of the intellectual property rights of third parties.

      Except as otherwise provided in this MSA, Pricing Schedule, or in any applicable addendum, upon payment in full of all fees and other amounts due under this Agreement and provided that Client is not in material breach of this MSA, PD grants to Clients a perpetual, worldwide, non-exclusive, non-transferable license to use the Services solely for the purpose expressly set forth in this MSA and PD’s Information incorporated into the Services solely in connection with Clients use of the Services. Customer shall not have the right to license, sublicense, or otherwise transfer to others the right to use the Services or PD’s Information without PD’s prior written consent.

      All work product developed by PD shall remain the property of PD. Client agrees that to the extent PD uses generalized or pre-existing work products (e.g., surveys, assessments, applications, computer programs, routines, sub routines, source code, etc.) in performing the Services, or performing academic and professional research and development, PD shall retain all ownership and title in all such work product. PD understands and agrees that no Client specific information will be released to unauthorized parties, and all such Client specific information shall be kept confidential.

      Unless otherwise required by law, Client and PD each expressly retain in confidence and to require their respective employees and contractors to retain in confidence all information, materials, and know-how exchanged under the MSA identified as being proprietary, privileged, and/or confidential or which, by the disclosure, ought in good faith to be treated as proprietary, privileged, and/or confidential (the “Confidential Information”). PD and Client each further agree they will use such Confidential Information consistent with the terms and purpose of the MSA or with the specific prior written consent of Client. Notwithstanding the foregoing, Client authorizes PD to use its name(s) and mark(s) on his Services provided to Client and PD’s marketing and website. Client and PD may also disclose Confidential Information on a need-to-know basis to its respective legal counsel, accountants, financial advisors, and authorized employees and contractors.

      Client’s electronic signature(s), User ID(s), and Password(s) used in PD’s Services (collectively, the “Client PD Authorization”) are Client’s obligations to protect, and to notify appropriate authorities if Client’s PD Authorization is stolen, lost, compromised, unaccounted for, or destroyed.

      Client agrees to maintain a current Client PD Authorization for use with all Performance Dashboard services and systems. Client agrees to maintain the security of the Client PD Authorization assigned by PD for the Performance Dashboard Survey Systems and related systems, services, and products, to prevent disclosure of this information to anyone. Client agrees to keep its Client PD Authorization secret and secure by taking reasonable security measures to prevent it from being lost, modified, or otherwise compromised, and to prevent unauthorized disclosure of, access to, or use of it or of any media on which information about it is stored.

      Client agrees to immediately notify the following if the Client discovers or suspects it’s PD Authorization has been or is in danger of being lost, disclosed, compromised or subjected to unauthorized use:

      Robert Lee Rainey, Vice President/General Counsel
      Performance Dashboard
      1601 NW Expressway, Suite 600
      Oklahoma City, OK 73118-1460
      405-753-1515 (direct)
      405-753-1516 (direct fax)
      rob.rainey@performancedashboard.com

      If Client requests its Client PD Authorization be revoked, or Client is notified that someone has requested Client’s PD Authorization be suspended or revoked, and Client suspects or discover it has been or may be compromised or subjected to unauthorized use, Client will immediately cease using its Client PD Authorization. Client will also immediately cease using its Client PD Authorization upon termination of the MSA or other agreements with PD.

      Client agrees to be held as legally bound, obligated, and responsible for any submission and communication made using the PD system and related PD systems, services, and products as Client would be by making such submission and communication in paper form with Client’s handwritten signature.

      Client agrees to be held legally bound, obligated, and responsible for any submission and communication made using the Performance Dashboard Survey System and related Performance Dashboard systems, services, and products by a Client agent whom Client has authorized to act on Client’s behalf.

 

1. 1. Third Parties.
      Client shall be solely responsible for payment of all fees and expenses as described in the MSA. If Client has arranged for a third party to pay PD, PD will accept payment from such third party in place of a direct payment, but Client agrees that PD shall under no circumstances recover any outstanding fees or expenses from third parties on Client’s behalf, nor owe any duties to that third party, and Client remains liable for the rendering of the Services and any expenses, incidental or otherwise, incurred by PD. Client may assign no of its duties or obligations under the MSA without the express prior written consent of PD.

 

1. 1. Warranty and Remedies.
      There is no guarantee, expectation, or promise expressed or implied by PD as to the outcome of the provision of its Services to Client. The entire manner, methods, means, totality, and sufficiency of conducting providing the Services shall be within the sole discretion of PD. Client confirms PD is not responsible for: any type of loss, damage, corruption or theft of Client’s property, equipment or data; or any hardware or software or media failure of any type; or for maintaining, keeping, or storing any records, reports, data, or media of any kind; or for any claims arising out of PD’s Services to Client. PD’s sole liability, and Client’s sole remedy, for the MSA shall be limited to having PD bear the reasonable cost of redoing (or, at PD’s option, having redone) any Services.NOTWITHSTANDING THE FOREGOING, PD’S TOTAL LIABILITY TO CLIENT UNDER THE AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO PD BY CLIENT UNDER THE MSA FOR ONE YEAR OF SERVICES. SUCH REMEDY SHALL BE AVAILABLE ONLY IN THE EVENT THAT CLIENT REPORTS IN WRITING ANY BREACH OF PD’S WARRANTY WITHIN TEN (10) DAYS OF SUCH BREACH, AND PROVIDES DOCUMENTATION OF SUCH BREACH; IN NO EVENT SHALL PD BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, BUSINESS DATA AND THE LIKE) ARISING IN CONNECTION WITH PD’S SERVICES OR THE AGREEMENT, EVEN IF PD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

1. 1. Arbitration; Controlling Law; Venue; Integration.
      PD and Client agree that all disputes, controversies, or claims relating to the MSA and/or PD’s Services rendered to, or expenses incurred for, Client, including but not limited to any billing, the validity and enforceability of this MSA, and any issue relating to the arbitrability of this MSA, shall be promptly resolved exclusively by binding arbitration, under the Commercial Rules of the American Arbitration Association, by a single, licensed attorney arbitrator, appointed under those rules at, and in Oklahoma County, Oklahoma, and which all costs and fees of same, including attorney fees and costs, shall be borne by the non-prevailing party. PD and Client agree to allow either to obtain ancillary relief in any court of competent jurisdiction or proceeding, all in aid of arbitration, and to protect the parties valuable rights. The laws of Oklahoma shall govern the validity, construction, enforcement, and interpretation of the MSA without regard to conflicts of laws. The MSA contains the entire agreement between the Client and PD regarding the Services to be performed by PD, and the fees charged, and expenses to be paid, and supersedes all prior oral or written agreements.

 

1. 1. Notices.
      Any communications provided for by the MSA shall be in writing and shall be effective when sent by facsimile with confirmation, e-mail with confirmation, or upon receipt via U.S. Certified Mail postage prepaid, with return receipt requested, and the parties agree each other’s contact information is derived from PD’s website at https://www.performancedashboard.com/contact-us/
      and from Client as reflected in the Client Request.

 

1. 1. Non-Solicitation.
      During the term of the MSA, and for a period of twelve (12) months after competition of the Services, Client will not recruit or otherwise solicit for employment any PD employee, agent, or subcontractor who participated in performing Services under the MSA without PD’s express prior written approval.

 

1. 1. Survival.
      The rights and obligations of the parties contained in Sections 3, 4, 5, 10, 11, 14, 15, and 16 survive the expiration or termination of the MSA.

 

1. General.
   The MSA shall not be revised except in writing executed by both Client and PD. Subject to the restrictions on assignment in this MSA, the MSA shall be binding upon Client’s heirs, executors, administrators, other legal representatives, successors, and assigns.The parties to this MSA agree that the term “Client” includes its affiliates, subsidiaries, parent company, and all corporate entities with common ownership, including their permitted assigns and successors (collectively, whether one or more, the “Client”).PD and Client agree this MSA: (i) will apply to all services rendered by PD to Client, (ii) supersedes all earlier terms, conditions, and agreements (if any), and (iii) applies to every agreement for services made between PD and Client, unless otherwise agreed to and subscribed by the parties to this MSA.

   If any provision of the MSA is determined to be unenforceable, the MSA shall be divisible as to such provision, and the remainder of the MSA shall be valid and binding as if such provision were not included in the MSA. Failure of either party to insist upon the strict performance of any provision of the MSA, or to exercise any option, right, remedy, or power in the MSA will not constitute a waiver or relinquishment of any other right or of any other subsequent breach or default.

   The MSA and the Client Request may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The parties to the MSA agree to accept each other’s electronic signatures on the MSA or the Client Request as if they were originals. The MSA is effective on the date PD received and accepted a Client Request, or the date PD first provided Services to the Client, whichever comes first.

Copyright 2019 Performance Dashboard, All Rights Reserved, Master Service Agreement 131010