Master Sales Agreement

Information Technology Solutions (IT Solutions)

This Master Sales Agreement (“Agreement”) is entered into by and between Zivaro, Inc. (“ZIVARO”) a Colorado corporation having its principal place of business at 990 S. Broadway, Suite 300, Denver, CO 80209 and the client (“Client”) who is procuring certain IT Solutions as set forth in an applicable SOW.

NOW, THEREFORE, ZIVARO and Client (the “Parties”) do agree as follows:

1.0  Statement(s) of Work (“SOW”) and associated ZIVARO Quotation(s) are hereby incorporated into the terms and conditions of this Agreement.   SOW shall provide a complete and accurate description of the IT Solutions to be delivered to and/or performed by ZIVARO for Client under this Agreement.

2.0  Effective Date and Term of the Agreement. This Agreement shall commence on the SOW Effective Date and shall remain in effect for as long as any SOW is effective hereunder, until terminated by either Party upon either thirty (30) days’ prior written notice or upon terms as stipulated elsewhere in this Agreement, provided that this Agreement shall remain in effect with respect to any SOW that remains in effect as of such termination, until such SOW has been fully performed.

3.0  General Obligations of ZIVARO under this Agreement
3.1  Warranty of IT Solutions. ZIVARO warrants that the IT Solutions provided under this Agreement shall be performed by qualified and experienced personnel and, will be of the kind and quality to meet the specifications and schedules described in the SOW. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE IT SOLUTIONS PROVIDED OR MATERIALS DELIVERED, AND ZIVARO SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.  CLIENT AGREES THAT FOR BREACH OF THE ABOVE WARRANTIES, CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND ZIVARO’S SOLE AND EXCLUSIVE LIABILITY, SHALL BE THE RE-PERFORMANCE OF ITS IT SOLUTIONS WITHIN THIRTY (30) DAYS OF NOTICE OF SUCH BREACH, AND IF ZIVARO FAILS TO RE-PERFORM THE IT SOLUTIONS AS WARRANTED, THEN CLIENT SHALL BE ENTITLED TO RECOVER AN AMOUNT UP TO THE FEES PAID TO ZIVARO FOR SUCH IT SOLUTIONS.
3.2  Developed Work Products: Assignment of Rights, Title and Interest. Upon full payment by Client of amounts owed to ZIVARO under any SOW, ZIVARO shall assign to Client any and all rights, title and interest, including without limitation any copyright and other intellectual property rights, in all deliverable work product identified in and developed under such SOW, including without limitation all tangible and intangible items or information incorporated therein, (“Deliverables”), but excluding all third party works and products incorporated or embedded in the Deliverables.  Any Deliverable that is a work of authorship in any form of expression including without limitation manuals and software, are works for hire and belong exclusively to Client.  If, by operation of law, the ownership of works for hire does not automatically vest in Client, ZIVARO will take steps necessary to assign ownership to Client.
3.3  Independently Developed or Acquired Technology, Information or Materials: Grant of License. To the extent any technology, information or materials developed or acquired by ZIVARO independently of work performed under this Agreement are incorporated or embedded in Deliverables, and including all third party works and products for which ZIVARO has received the right to license (“Pre-Existing Technology”), ZIVARO shall grant to Client a royalty-free, irrevocable, worldwide, nonexclusive, perpetual license, to use, disclose, reproduce, sublicense, modify, prepare derivative works from, perform and display such Pre-Existing Technology for the sole purpose of utilizing a Deliverable for the purpose for which it was delivered and for other internal purposes.
3.4  ZIVARO shall invoice Client on such terms and schedules as shall be described in the SOW. Each invoice will, as applicable to the particular work involved, identify the nature of the IT Solutions rendered, specific descriptions of products installed, number of hours, individual billing rates, and the SOW Opportunity Identification number (“OPP-ID”) under which all activities were authorized and performed.  In addition, ZIVARO will invoice Client for all other direct, non-labor charges, if any, for reasonable expenses incurred by ZIVARO and approved by Client.  Such charges may include travel, lodging, automobile rental, meals and incidentals, computer time, copy charges, publications (printing, graphics), purchased hardware and software, shipping charges, and miscellaneous materials and services required to perform the IT Solutions. If Client has not paid ZIVARO’s invoices within thirty (30) days of receipt for three (3) consecutive months, interest may accrue retroactive to the first invoice paid late or unpaid, at the rate of one and one-half percent (1.5%) per month.
3.5  Client Property. ZIVARO shall exercise all due care with regard to all Client property under the control of or being used by ZIVARO, and shall identify, maintain appropriate records, verify, protect and safeguard such property.  If any Client property is lost, damaged or otherwise found to be unsuitable for use while being used by or under the control of ZIVARO, ZIVARO shall make an appropriate and timely report to the Client with regard to such property, and shall negotiate with Client, in good faith, an appropriate settlement relating thereto.
4.0 General Obligations of Client under this Agreement
4.1  Payment/Taxes/Disputes. Client shall pay all undisputed amounts invoiced by ZIVARO, regardless of the expiration or termination of a SOW, without right of set-off within thirty (30) days of the date of the invoice. These terms supersede any/all previous oral and/or written instructions or agreements, including Client purchase orders.  In the event Client disputes any invoice, Client shall: (a) pay all undisputed portions as provided herein, and (b) notify ZIVARO, in writing, within ten (10) days of receipt of invoice of the amount disputed and the reasons for such dispute.  The Parties shall thereafter cooperate in good faith to resolve such dispute and make any adjustments mutually agreed upon.  Client shall promptly pay ZIVARO all amounts determined to be owed to ZIVARO by Client upon resolution of such dispute.  ZIVARO specifically reserves the right to assign all or any part of the proceeds of this Agreement to a third party. The charges by ZIVARO under this Agreement and the related SOW(s) do not include taxes or duties.  If ZIVARO is required to pay or collect any federal, state, local, value added, goods and services, or any other similar taxes or duties based on IT Solutions provided under this Agreement, then such taxes and/or duties shall be invoiced to Client; this requirement, however, shall not apply to taxes based on ZIVARO’s income. Client agrees that it shall reimburse ZIVARO for any and all costs and expenses, including attorneys’ fees, incurred by ZIVARO in connection with the collection by ZIVARO of any amounts payable by Client hereunder which are not paid as and when due.
4.2  Cooperation. Client agrees that where participation by its own staff is necessary in ZIVARO’s provision of the IT Solutions, such staff shall possess the appropriate skill, experience and authority for the tasks assigned to them, and shall be available at such times as are agreed by the Parties. Client agrees to designate a member of its staff who shall have the authority to represent Client on all matters relating to the IT Solutions.
4.3  Environment and Facilities. As applicable to the IT Solutions rendered by ZIVARO, Client will provide ZIVARO with: a) a safe and suitable environment in which to perform IT Solutions, b) use of data communications and telecommunication facilities as reasonably necessary to perform the IT Solutions, and c) the right, under Client’s license or agreement with each third-party licensor of software utilized by Client and relating to the applicable SOW, for ZIVARO to perform its IT Solutions with respect to such software. Client shall indemnify and hold harmless ZIVARO from all costs, claims, expenses, damages, and/or liability that ZIVARO incurs as a result of any failure or claimed failure by Client to provide the rights referenced in this paragraph.
4.4  Grant of License. As required, Client shall grant to ZIVARO a non-exclusive, royalty-free limited license during the term of this Agreement to use, reproduce, distribute, display, perform, encode, and transmit Client communications and data, and Client Intellectual Property for the purposes of providing IT Solutions hereunder.
5.0 Terms and Conditions: General
5. 1  Confidentiality. In the course of performing the IT Solutions, either Party (the “Disclosing Party”) may use and disclose to the other Party (the “Receiving Party”) software, other products, consulting methodologies, trade secrets and proprietary information of the Disclosing Party (“Proprietary Materials”) that may or may not be licensed under separate agreements. The Receiving Party agrees to safeguard and keep confidential the Proprietary Material, and to use such Proprietary Materials only internally in the course of the Receiving Party’s business.  The Receiving Party will limit the use of, and access to, the Proprietary Materials to the Receiving Party’s employees whose use of, or access to, the Proprietary Materials is necessary for the Receiving Party’s internal business use.  The Receiving Party will have in effect, and will enforce, rules and policies designed to protect against unauthorized use or reproduction of the Proprietary Materials and other confidential information, including instruction of and written agreements with the Receiving Party’s employees and contractors to insure that they use and protect the Proprietary Materials in a manner which protects the Disclosing Party’s proprietary rights.  The Receiving Party shall not provide access to the Disclosing Party’s Proprietary Materials to any third party unless such third party has a “need to know” in connection with the performance of IT Solutions hereunder or under any SOW and has signed a confidentiality agreement with the Disclosing Party.
5.2  Non-Compete. During the term of this Agreement and for a period of one (1) year from the effective date of termination of this Agreement, Client agrees not to directly or indirectly provide or offer IT Solutions which compete with the IT Solutions which ZIVARO has provided or contracted to provide to Client under this Agreement.
5.3  Termination
5.3.1  Insolvency, Bankruptcy. In the event of insolvency of either Party, the filing of a petition in bankruptcy by or against either Party (which has not been removed within 60 days from such filing), the appointment of a receiver, assignment for the benefit of creditors, or a Party’s failure to meet any of its responsibilities hereunder, the other Party may terminate this Agreement or any of the SOWs, may refuse to provide or may suspend services hereunder, and may also exercise any or all other rights and remedies provided by law. In the event of Client’s failure to make any payment due hereunder, ZIVARO may terminate this Agreement or any of the SOWs, refuse to provide or suspend, and exercise any or all other rights and remedies provided by law.
5.3.2  By Client/For Cause. Client may immediately terminate this agreement for cause if ZIVARO materially fails to comply with the terms of this Agreement, and does not correct said failure within thirty (30) days of written notice from Client specifying the non-compliance. If this Agreement is terminated for cause by Client, Client shall not be obligated to make payment for any services completed after the effective date of termination.
5.3.3  By Client/No Cause. Client may terminate this Agreement other than for reasons of cause, but shall be required to provide to ZIVARO a notice of thirty (30) days in advance of the effective date of termination. In such event, Client shall pay to ZIVARO all outstanding fees and expenses which are due up through the effective date of termination, as such fees and expenses are described in the SOW.
5.3.4  By ZIVARO. ZIVARO may terminate this Agreement immediately if Client fails to perform according to the terms of the Agreement, including the failure to pay charges when due. If ZIVARO terminates this Agreement on this basis, Client shall pay to ZIVARO all outstanding fees and expenses which are due up through the effective date of termination, as such fees and expenses are described in the SOW.
5.3.5  Return of Equipment after Termination. Client shall return any equipment, software, manuals or other documentation to ZIVARO within 5 days of the date of termination.
5.3.6  No Solicitation or Hiring of Employees. During the term of this Agreement and for twelve (12) months from its effective date of termination, neither Party will solicit or hire for employment any employee or contractor of the other which was directly involved in the IT Solutions performed hereunder. Remedy for violation of the terms of this section of the Agreement may include, but shall not be limited to, the following: direct and indirect damage due to lost revenue, hiring and training of replacement employees, related attorney fees and court costs
5.4  Relationship of Parties. In performing this Agreement, ZIVARO is acting as an independent contractor and not as an employee or agent of Client. Each Party agrees that there is no relationship of agency, partnership, joint venture, employment between the Parties, and that each has no authority hereunder to assume or create any obligation or responsibility, expressed or implied, on behalf of or in the name of the other Party.
5.5  Assignment of Rights and Interests. No Party shall transfer or assign any or all of its rights or interests under this agreement or delegate any of its obligations without prior written consent of the other Party; provided, however, that ZIVARO may transfer or assign its rights or interests, or delegate its obligations, under this agreement to any of ZIVARO’s other divisions, business units, subsidiaries or affiliates without the prior written consent of Client.
5.6 Limitations. Except for liability infringement as may be described elsewhere in this Agreement, the entire liability of ZIVARO to the Client, whether in contract, tort, strict liability, or otherwise, with respect to any SOW shall not exceed the amount paid by Client under the relevant SOW which gave rise to the liability.
5.7  Force Majeure, etc. Neither Party shall be liable to the other for any loss, injury, delay or damage whatsoever suffered or incurred by the other Party due to causes beyond such Party’s control, including but not limited to, acts of God, strikes or other labor disturbances or third parties, war, sabotage, and any other cause or causes, whether similar or dissimilar to those herein specified, which cannot be controlled by such Party. Notwithstanding the foregoing, the provisions of this Section 7 shall at no time operate to excuse Client from any payment obligations required by the terms of this Agreement when the same are due.
5.8  Governing Law, Jurisdiction, Survivability, Etc. This Agreement shall be construed in accordance with the internal laws of the State of Colorado (irrespective of its choice of law principles). If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, the remaining provisions of this Agreement shall survive and remain in full force, and the remainder of this Agreement and the application of such provision to other persons or circumstances shall be interpreted so as to best effect the intent of the Parties. ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT SHALL BE INSTITUTED SOLELLY IN THE FEDERAL AND STATE OF COLORADO COURTS LOCATED IN THE CITY AND COUNTY OF DENVER, COLORADO AND EACH PARTY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE CONTEMPLATED TRANSACTIONS. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.8.
5.9  Waiver and Time Limitations for Actions. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for indemnification, or breach of either Party’s intellectual property or confidentiality rights, no action, regardless of form, arising out of this Agreement may be brought by either Party more than two years after the cause of action has been discovered.
5.10  Costs Relating to Breach or Default. In the event of any breach of, or default under, this Agreement, the non-breaching or non-defaulting Party, as applicable, shall be entitled to recover from the other Party all of its Losses (as defined below) resulting from such beach of, or default under, this Agreement by the other Party. For purposes herein, “Losses” means loses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however, that “Losses” shall not include (i) punitive damages, except in the case of fraud or to the extent actually awarded to a governmental authority or other third party or (ii) lost profits or consequential damages, in any case.
5.11  Indemnification. Each Party shall, at its own expense, indemnify, defend, and hold harmless the other Party, and such Party’s employees, directors, officers, members, managers, representatives, and agents (collectively referred to as the “Indemnified Parties”) against any Losses, including Losses related to any other proceeding brought by a third party against the Indemnified Parties (collectively referred to as “Claims”), to the extent that such Claim is based on or arises from the breach of any representation, warranty, covenant or agreement of the indemnifying Party contained in this Agreement or arising out of or related to any damage to tangible property, personal injury or death caused by such Party’s negligence or willful misconduct. In addition, Client shall indemnify, defend, and hold harmless the ZIVARO Indemnified Parties against any Claim that the Client infringed any Intellectual Property right of any third Party, or any right of publicity or privacy, or is libelous or defamatory. The indemnifying Party will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the Indemnified Parties in connection with or arising from or attributable to any such Claim. The indemnifying Party’s obligations under this Section shall be subject to reasonably prompt notice of any such Claim and permitting the indemnifying Party, through its counsel, to answer and defend such Claim. The Indemnified Parties, at their own expense, shall have the right to employ separate counsel and participate in the defense thereof. In no event may either Party enter into any third-party agreements that would in any manner affect the rights of, or bind, the other Party in any manner to such third party, without the prior written consent of the other Party.
5.12  Public Disclosures. All media releases, public announcements, and public disclosures by either Party relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material, but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing Party, shall be coordinated with and approved by the other Party prior to release. Notwithstanding the foregoing. ZIVARO may list Client as a client of ZIVARO and describe in general terms the IT Solutions provided under this Agreement in proposals, web sites, case studies, and other marketing materials, and ZIVARO may disclose to testimonials and references provided by Client.
6.0  Additional Terms and Conditions:
6.1  Change Orders. The ZIVARO Change Order Process provides a controlled way to accommodate changes to the SOW. This Change Order Process ensures that the Parties identify all impacts associated with change requests. Any change request to the SOW will be accomplished using the ZIVARO Change Control Process. All change requests must be communicated in writing, after which ZIVARO shall assess the impact of such requests upon all aspects of the project, including, but not limited to scheduling and or costs. The Parties shall then be required to agree in writing to such changes prior to implementation.
6.2  Retainers. For certain projects, ZIVARO may require the pre-payment of a retainer by the Client. Retainers, if any, shall be defined within the SOW. The specific terms and conditions associated with such retainers shall also be described therein. In general, and unless otherwise defined within the SOW, the Client shall be required to replenish the full amount of the pre-paid retainer within ten (10) days of notification by ZIVARO that the current retainer has been fully depleted. ZIVARO reserves the right to cease performance pending the receipt of a requested retainer.
6.3  Minimum Billing Shall Be Eight Hours. Unless otherwise defined with the SOW, the minimum billing for any assignment shall be eight (8) hours (also known as the ZIVARO “Day Rate”), regardless of the quantity of time actually expended in that assignment.
6.4  Discount Recapture. ZIVARO reserves the right to recapture (“true-up”) quoted and agreed upon financial discounts for the IT Solutions it provides if the Client subsequently elects to decrease the length, quantity or performance parameters of such IT Solutions.
6.5  Additional Terms. ZIVARO will bill Client for one-way travel time, and time spent on-site in fifteen (15) minute increments. If for any reason Client will not allow ZIVARO to perform work after ZIVARO staff has been dispatched, ZIVARO will have the right to bill Client for any time and travel incurred. For IT Solutions rendered outside of Metropolitan Denver area requiring an overnight stay, reimbursement will be based on actual charges.  Client shall reimburse ZIVARO for all direct expenses incurred.  Materials other than travel expenses will be billed at actual cost. To the extent that the terms of this agreement conflict with Client’s “billing practices,” Client acknowledges that the terms of this agreement will govern.
7.0  COMPLETE AGREEMENT. This Agreement constitutes the complete and exclusive statement of the Parties’ agreement about the IT Solutions to be performed under the SOW(s), and supersedes all prior communications relating to the subject matter of the SOW(s). Additional or conflicting terms on any future Client purchasing documents are hereby rejected, unless the Parties mutually agree upon such additional or conflicting terms in writing.  This Agreement can be modified only in writing signed by an authorized signatory of each of the Parties.  The section titles contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.  Both ZIVARO and Client have read this Agreement, understand it, and accept its terms.  The undersigned each represent and warrant that he or she has authority to enter into and execute this Agreement on behalf of the Party for whom he or she is signing.