Master Terms of Service
As of June, 2019. This Master Terms of Service (this “Agreement”) is hereby acknowledged and agreed to by GORILLA, LLC, an Illinois limited liability company (“Gorilla”) and YOU, as a client of Gorilla (“Client”), as of the effective date of any applicable SOW (defined below) (the “Effective Date”); each of Gorilla and Client shall be referred to herein as a “Party” and, collectively as, the “Parties”.
Whereas, Client desires to engage Gorilla to provide, produce and deliver, as applicable, the Services and the Work Product, each as more particularly described in this Agreement.
Whereas, this Agreement as a “master” form, allows the Parties to contract for multiple purposes and projects through the issuance of multiple SOWs (defined below), without having to renegotiate the general terms and conditions contained herein.
Now Therefore, in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
3. TERM. This Agreement shall commence on the Effective Date and continue for the greater of: (i) three (3) years; or (ii) for so long as any SOW has not been fully performed and remains in full force and effect (the “Term”), unless earlier terminated by a Party upon the breach by the other Party of this Agreement or any SOW, which remains uncured for a period of thirty (30) days beyond written notice thereof.
4. FEES AND EXPENSES.
4.1. Fees. Client shall pay Gorilla all fees (“Fees”) due to Gorilla for the production and delivery of the Services and the Work Product as more particularly set forth in the applicable SOW. Each SOW shall expressly identify either a Fixed Fee or Time & Materials billing engagement. In the absence of any such express statement it shall be deemed to indicate a Time & Materials billing engagement. Gorilla reserves the right to change the hourly rates used to calculate its Fees upon prior written notice to Client; provided, that, no such change in Fees shall apply to any then outstanding SOW without the prior written consent of Client, which may be withheld in Client’s sole and absolute discretion. In the event the Parties expressly agree, in any particular SOW, to alternative payment terms, including, without limitation, to the payment of a retainer, such alternative payment terms shall prevail.
4.2. Expenses. Client shall reimburse Gorilla all of its reasonable out-of-pocket expenses (“Expenses”), incurred in connection with the production and delivery of the Services and the Work Product as more particularly set forth in the applicable SOW and in accordance with Client’s internal and written policies and procedures.
4.3 Invoicing. Except as otherwise set forth in any SOW, all invoices for Fees shall be sent to Client on or about the first (1st) day of every month and shall reflect all Fees due for the immediately preceding month. Client shall pay each invoice upon receipt thereof. In the event of any dispute with regard to a portion of an invoice, the undisputed portion will be promptly paid by Client. Any undisputed amount not promptly paid as provided in this Section 4, shall bear interest at the lesser of three percent (3.0%) per month or the highest rate allowed by law.
4.4. Taxes. Client shall pay any excise, sales, use or other similar tax based upon products, materials or services rendered pursuant to this Agreement, any of which may be paid by Gorilla and added to Client’s monthly invoice. Client shall not be obligated to pay any taxes based on Gorilla’s net income or on any property owned by Gorilla.
5. PROPRIETARY RIGHTS. Until Client’s payment of all applicable and undisputed Fees and Expenses as expressly set forth in any applicable SOW, Client’s use and ownership of the Work Product shall be limited to a revocable at-will license. Upon Client’s payment of all applicable Fees and Expenses, the Work Product shall become the property of Client, and shall be deemed to be “works made for hire” under U.S. Copyright law. To the extent the Work Product may not, by operation of law, be deemed “works made for hire”, Gorilla hereby assigns to Client the ownership of all right, title and interest in and to such Work Product, including but not limited to all Intellectual Property Rights therein. To the extent any Gorilla Background IP is incorporated into the Work Product, Gorilla hereby grants Client a non-exclusive, perpetual, worldwide, royalty-free license to use such Gorilla Background IP, solely for the proper use and maintenance of the Work Product.
6. CLIENT OBLIGATIONS.
6.1. Software License. To the extent applicable to the Services and the Work Product, Client hereby represents, warrants and covenants, as the context requires, that Client: (i) has (or shall have prior to Gorilla’s production and delivery of any such Services and Work Product), entered into one or more valid license agreements with the applicable software vendor (collectively, the “Software License”), as may be implicated or necessary in connection therewith; (ii) shall validly maintain any such Software License for so long as Gorilla continues to produce and deliver the Services and the Work Product pursuant to this Agreement and any applicable SOW; and (iii) shall be solely responsible and primarily liable for the granting and removal to Gorilla Personnel of access to any platform environment granted by any such Software License.
6.2. In General. To the extent Client fails to comply with any of Client’s Obligations, the failure of which results in the necessity to modify the scope of the Services and/or causes an actual delay in their production and delivery, Gorilla shall have the right, in its sole and absolute discretion and as the context requires, to: (i) require Client to enter into and execute a Change Order memorializing any such modification in scope; and/or (ii) reallocate Gorilla Resources to other Gorilla client engagements; provided, that, no such reallocation shall affect any other rights or obligations of the Parties as set forth in this Agreement. In the event of any such reallocation, Gorilla agrees to redeploy Gorilla Resources to recommence Gorilla’s production and delivery of the Services and the Work Product on a future date (such date, the “Redeployment Date”), which shall be reasonably and mutually agreed upon by the Parties, but in no event less than two (2) weeks following Gorilla’s receipt of written notice from Client expressly setting forth Client’s request for such recommencement and the agreed upon Redeployment Date.
7. WARRANTY. Gorilla warrants: (i) the Services shall be performed in a competent and workmanlike manner; and (ii) the Work Product shall materially conform, at the time of delivery, to any requirements and specifications expressly set forth in any applicable SOW (the “Warranty”). With respect to the Work Product, Client shall have within the lesser of: (A) fifteen (15) days following its delivery; or (B) its modification by Client or any third party on behalf of Client (in either instance, the “Warranty Period”), to notify Gorilla in writing of any alleged breach of the Warranty, which if substantiated shall be remedied by Gorilla at Gorilla’s sole cost and expense. For the avoidance of doubt, Client shall incur the cost and expense for any requests made outside of the Warranty Period or which fall outside of the scope expressly set forth in the applicable SOW. Except as provided in this Section 7, Gorilla does not make any express or implied warranties with respect to the Services, the Work Product, Third Party Materials or related services, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST BUSINESS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT FOR ANY CLAIM SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO GORILLA UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.
9. NON-SOLICITATION. Commencing on the Effective Date and continuing for a period of one (1) year following the termination or expiration of all SOWs entered into under this Agreement, neither Party shall, directly or indirectly, solicit any personnel of the other Party for employment. The foregoing restrictive covenant shall not prohibit either Party from posting general and public employment solicitations not specifically targeted at the employee(s) of the other Party. The Parties hereby acknowledge and agree that the restrictions set forth in this Section 9 are reasonable and necessary to protect the business interests of each Party and are narrowly drawn, are fair and reasonable in time and territory, and place no greater restraint upon the Parties than is reasonably necessary.
10.1. PROHIBITION ON DISCLOSURE. Each Party agrees at all times to hold Confidential Information of the other Party in strict confidence and shall not use such Confidential Information for any purpose other than as necessary for each Party to exercise its rights and fulfill its obligations as set forth in this Agreement. Each Party agrees to protect and keep all Confidential Information of the other Party confidential in the same manner it protects the confidentiality of its own Confidential Information (at all times exercising at least a reasonable degree of care). If either Party is compelled by law to disclose Confidential Information of the other Party, it shall provide the other Party with prior notice of such compelled disclosure (to the extent legally permitted), and reasonable assistance, at such other Party’s sole cost and expense, to the extent such Party wishes to contest the compelled disclosure thereof.
10.2.1. Loss and Disclosure. Each Party shall immediately notify the other Party upon the discovery of any loss or unauthorized disclosure of Confidential Information of the other Party.
10.2.2. Reproduction. Confidential Information shall not be reproduced in any form except in accordance with the provisions of this Agreement. Any reproduction of Confidential Information shall remain the property of the disclosing Party and shall contain any and all confidential notices or legends, which appear on the original.
10.2.3. Return and Retention. Upon the request of a Party, the other Party shall destroy or return (at its election), all received Confidential Information, without retaining any copy thereof; provided, that, a Party may retain one (1) copy of any such Confidential Information if such retention is required by applicable law or in accordance with its respective internal compliance policies in which event such copy may be retained in accordance therewith and in all events in compliance with the confidentiality obligations of this Agreement.
10.3. LIMITATION ON RIGHTS. The disclosure of Confidential Information hereunder shall not result in any right or license in such Confidential Information being granted by the disclosing Party to the receiving Party. Neither Party nor their respective representatives: (i) have made or make any representation or warranty hereunder, expressed or implied, as to the accuracy or completeness of the disclosed Confidential Information; or (ii) shall have any liability hereunder with respect to any errors or omissions in connection with the disclosed Confidential Information.
10.4. BREACH. The Parties acknowledge and agree that the unauthorized disclosure of Confidential Information will cause irreparable damage to the non-disclosing Party and should either Party breach this Agreement, the other Party shall be entitled to seek injunctive relief, as well as any other relief that may be granted by a court of competent jurisdiction.
10.5. LENGTH OF OBLIGATIONS. The obligations of the Parties set forth in this Agreement with respect to Confidential Information shall continue from the Effective Date until such Confidential Information is generally available to the public through no fault of the receiving Party.
11. INSURANCE. During the production and delivery of the Services pursuant to this Agreement, Gorilla agrees to maintain, at its sole cost and expense, the insurance coverage set forth in Schedule 2, attached hereto, and to provide Client with certification thereof upon written request. Client shall, at all times, maintain, at its sole cost and expense, insurance of types and in coverage amounts customary and standard for similarly situated companies.
12. REFERENCE RIGHTS. In consideration for the Fees, Client agrees to accept reference calls and otherwise act as a reference for Gorilla in accordance with this Section 12 and hereby acknowledges and agrees that Gorilla may develop and publish a case study highlighting the Services provided by Gorilla to Client in Gorilla’s promotional materials including, without limitation, its client lists, brochures, white papers and electronic media. Additionally, the Parties may issue a mutually agreed upon press release regarding Client’s engagement of Gorilla. The foregoing shall be subject at all times to Section 10 of this Agreement. Each Party hereby grants to the other Party a nonexclusive, non-transferable, royalty-free right and license to copy and display such Party’s trademarks and logo (subject to the terms and conditions of such Party’s standard trademark usage guidelines), for use in such Party’s client/vendor lists, websites, case studies and other similar promotional media.
13. FORCE MAJEURE. Gorilla shall not have any liability for any failure to perform its obligations under this Agreement resulting in whole or in part from an Act of God (including, without limitation, earthquakes, tornados, hurricanes, blizzards, floods or other storms or natural disasters), epidemic, fire, military event, act of terrorism, third party criminal activity, blockade, embargo, labor dispute, change in municipal, county, state or national ordinance or law, executive, administrative or judicial order, or failure of electricity, telephone or internet service. If any of the foregoing events occur, Gorilla’s sole obligation will be to take reasonable steps to minimize delay or damages and to notify Client of such event as soon as may be reasonably practicable.
14.1. Duly Authorized. Each Party represents and warrants that it has the right and authority to enter into this Agreement.
14.2. Entire Agreement. This Agreement constitutes the complete and exclusive state of the terms and conditions of the agreement of the Parties and supersedes all oral or written proposals and all other communications, understandings, or agreements between the Parties relating thereto.
14.3. Conflict. In the event of a conflict between the terms and provisions of this Agreement and those in any SOW, the terms and provisions of this Agreement shall prevail.
14.4. Modifications and Waiver. No modification of, amendment or addition to, this Agreement or any SOW is valid or binding unless set forth in writing and executed by an authorized representative of each Party. Any waiver of any right or remedy under this Agreement must be in writing and executed by an authorized representative of each Party. No delay in exercising any right or remedy shall operate as a waiver of any right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
14.5. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
14.6. Relationship of Parties. This Agreement does not create a joint venture or partnership between the Parties and no Party is, by virtue of this Agreement, authorized as an agent, employee or representative of the other Party.
14.7. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and deemed delivered upon: (i) personal delivery, if delivered by hand; (ii) receipt by the receiving Party of a confirmed electronic mail if sent during normal business hours of the receiving Party (and if not, then on the next business day); or (iii) one (1) business day following deposit with a nationally recognized overnight courier, specifying next business day delivery, freight prepaid, with written verification of receipt. Notices shall be sent to the addresses below if being sent to Gorilla and to the addresses set forth in the applicable SOW, if being sent to Client:
- 1. DEFINITIONS. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed such terms in Schedule 1, attached hereto.
- 2. SERVICES AND WORK PRODUCT.
- 2.1. Statements of Work. This Agreement shall apply to the Services and the Work Product, each of which shall be more particularly set forth in one or more statements of work or any other writing (in each instance, a “SOW”), which in all events shall expressly reference and incorporate this Agreement and be executed by the Parties. Each SOW shall set forth the scope and timing of production and delivery of the Services and the Work Product and the fees and expenses payable to Gorilla in connection therewith.
- 2.2. Change Orders. In the event either Party desires to modify any SOW, such Party shall provide the other Party with a written change order (each, a “Change Order”), specifying any such modifications as well as any impact to the respective fees and expenses payable to Gorilla in connection therewith. The Parties shall endeavor to promptly and amicably negotiate and finalize any such Change Order; provided, that, no Change Order shall be effective unless and until it is duly executed by the Parties.
- 2.3. Gorilla Resources. Gorilla shall be free to use whatever Gorilla Personnel, means and methods (collectively, “Gorilla Resources”), Gorilla deems commercially appropriate for the production and delivery of the Services and the Work Product under this Agreement. Except as reasonably required by Client and expressly set forth in any SOW, Gorilla may perform its obligations hereunder at any location Gorilla deems commercially appropriate.
If to Gorilla:
111 West Jackson Boulevard, Suite 300
Chicago, Illinois 60604
Attn: J.P. Bartley, General Counsel
Phone: (312) 361-1440
14.8. Governing Law; Dispute Resolution. This Agreement shall be construed in accordance with and governed by the laws of the State of Illinois, without regard to conflicts of laws principles. The Parties will endeavor to amicably resolve any dispute, controversy or claim arising out of or related to this Agreement, or breach thereof; provided, that, any dispute, controversy or claim which cannot be amicably resolved within thirty (30) days of the utilization of good faith efforts of the Parties, shall be submitted to and resolved by the courts of the Northern District of Illinois, Eastern Division, USA, and all courts competent to hear appeals therefrom, to which the Parties hereby irrevocably and unconditionally consent. The Parties waive any right to jury trial in connection with any action arising out of or related to this Agreement.
“Client’s Obligations” means the obligations of Client expressly set forth in this Agreement or any applicable SOW.
“Confidential Information” means any information concerning the business and affairs of a Party and its respective subsidiaries not already generally available to the public.
“Fixed Fee” means the applicable Services and Work Product shall be produced and delivered for a price that is not subject to adjustment based on the time or resources necessary to complete absent the execution of a Change Order by the Parties.
“Gorilla Background IP” means: (i) Gorilla’s technology, including without limitation, code, algorithms, data, software, accelerators, connectors, artwork, technical components, configurations, templates, functional and technical architecture, creative designs, hardware designs, network designs, software designs, user interface designs, trade secrets, ideas, know-how, methods, methodologies, expertise, concepts, techniques, skills and writings in which any of the foregoing are fixed, which are not of general applicability to Gorilla’s clients and not created by Gorilla solely as Work Product pursuant to a SOW; and (ii) all modifications, improvements, enhancements, extensions and derivative works of the foregoing and all Intellectual Property Rights therein.
“Gorilla Personnel” means any employee, officer, representative or independent contractor of Gorilla (or its subsidiaries, affiliates, permitted successors and assigns).
“Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights, mask work rights, trade secret, know-how or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contact and whether or not perfected, now existing or hereafter filed, issued or acquired.
“Services” means any digital commerce professional consulting services actually provided to Client pursuant to this Agreement and any applicable SOW, which in all events shall not include Gorilla Background IP or any Third Party Materials.
“Third Party Materials” means any third party applications, materials and/or software products.
“Time & Materials” means the applicable Services and Work Product shall be produced and delivered for a price calculated by multiplying the amount of time expended on such efforts by the rates set forth in the applicable SOW, and absent a contrary agreement executed by the Parties in writing shall not be subject to a cap.
“Work Product” means any deliverable actually provided to Client in final form pursuant to this Agreement and any applicable SOW, which in all events shall not include Gorilla Background IP or any Third Party Materials.
|COMMERCIAL GENERAL LIABILITY
|DAMAGE TO RENTED PREMISES (Each occurrence)
|MEDICAL EXPENSES (Any one person)
|PERSONAL & ADV INJURY
|PRODUCTS – COMP/OP AGG
|COMBINED SINGLE LIMIT
|E.L. EACH ACCIDENT
|E.L. DISEASE – EACH EMPLOYEE
|E.L. DISEASE – POLICY LIMIT
|PROFESSIONAL ERRORS & OMISSIONS