Business Agreement Template

TIP Global Health Master Services Agreement

This Master Services Agreement (this “Agreement”), effective as of [●] (the “Effective Date”), is entered into by and between TIP Global Health, a California 501(c)(3) nonprofit organization with offices located at 7492 Soquel Drive, Suite D, Aptos, California 95003 (“Licensor”) and [LICENSEE NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE] with offices located at [ADDRESS] (“Licensee”). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Licensor desires to license certain software to Licensee and to provide Licensee with services related to Licensee’s use of such software; and WHEREAS, Licensee desires to obtain a license to use such software from Licensor and to obtain such services from Licensor, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions. (a) “Customizations” means any updates, customizations, or modifications to the Software that are created for Licensee by Licensor, whether alone or in connection with any other parties, in connection with the provision of Services under this Agreement. (b) “Documentation” means user manuals, handbooks, installation guides, and any other documentation relating to the Software provided by Licensor to Licensee in connection with the provision of Services under this Agreement. (c) “Software” means Licensor’s proprietary healthcare data recording and modeling software product known as E-Heza, in source code and object code format. (d) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software. For the avoidance of doubt, Updates shall not include Customizations and shall be provided independently of the Services.
2. License Grant. Subject to the following terms, Licensor grants to Licensee a perpetual, nonexclusive, worldwide license to the Software, Updates, and any Customizations that are owned by Licensor, pursuant to the Apache License v.2.0, attached hereto as Exhibit A, along with a nonexclusive, worldwide, nonsublicensable license to use the Documentation internally in connection with Licensee’s usage of the Software during the Term.
3. Intellectual Property Ownership. Licensee acknowledges that, as between Licensee and Licensor, Licensor exclusively owns all right, title, and interest, including all intellectual property rights, in and to the Software, Updates, and Documentation. In the event that Licensor, whether alone or in connection with any other parties, creates any Customizations, Licensor shall retain sole and exclusive ownership of such Customizations and shall be permitted, at its sole discretion, to incorporate such Customizations into the Software and Updates and to generally make such Customizations available to Licensee and third-parties.
4. Licensor Trademarks. The “TIP Global Health” and “E-Heza” names are trademarks or registered trademarks of Licensor, and this Agreement shall not permit Licensee to make any use of such names, including by distributing or commercializing the Software, Updates, or any Customizations owned by Licensor without the express written consent of Licensor.
5. Services. Licensor shall provide Licensee with the services described in Exhibit B (the “Services”) during the Term.
6. Updates. During the Term, Licensor shall offer to provide Licensee, at no additional charge, all Updates, which shall not be considered Services under this Agreement.
7. Fees and Payment.
   (a) Fees. In connection with Licensor’s provision to Licensee of the Services, Licensee shall pay Licensor the fees set forth in Exhibit B (the “Fees”). Licensor shall send an invoice to Licensee for all Fees incurred on a monthly basis. Licensee shall pay all undisputed invoices within 30 days after Licensee’s receipt of a proper invoice. Licensee shall make all payments hereunder in US dollars. (b) Payment Disputes. Licensee may withhold from payment any and all payments of Fees that Licensee disputes in good faith, pending resolution of such dispute, provided that Licensee: (i) timely renders all payments and amounts that are not in dispute; (ii) notifies Licensor of the dispute prior to the due date for payment, specifying in such notice the amount in dispute and the reason for the dispute; (iii) works with Licensor in good faith to promptly resolve the dispute; and (iv) promptly pays any amount determined to be payable by resolution of the dispute. Licensor shall not fail to perform any obligation hereunder by reason of Licensee’s good faith withholding of any Fees in accordance with this Section 7(b). (c) Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
8. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing 2 Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will persist indefinitely, unless otherwise agreed by the Parties in writing.
9. Warranty Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
10. Limitations of Liability. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 10, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 10, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
    (a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until 1 year from such date (the “Initial Term”). This Agreement will automatically renew indefinitely for additional successive 1 year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non renewal at least 30 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). (b) Termination. In addition to any other express termination right set forth in this Agreement: (i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its 3 creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. (c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Licensor’s obligations to provide the Services and Licensee’s obligation to provide the Fees shall cease, provided that Licensee shall remain obligated to pay Fees for Services already rendered. Licensor and Licensee agree to negotiate in good faith the terms related to the cessation of ongoing Services and the payment of associated Fees. Upon expiration or earlier termination of this Agreement, Licensee shall be permitted to continue to internally use any copies of the Documentation currently in its possession in connection with Licensee’s ongoing use of the Software, except for in the event of termination due to a material breach of this Agreement by Licensee, in which event Licensee shall immediately cease using and delete, destroy, or return all copies of the Documentation. (d) Survival. This Section 11(d) and Sections 1, 3, 4, 7, 8, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Miscellaneous.
    (a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
    (b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section. (c) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. (d) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including, but not limited to: (i) acts of God; (ii) floods, fires, earthquakes, explosions, or other potential disasters or catastrophes; (iii) wars, invasions, 4 hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest; (iv) government orders, laws, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergencies; and (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances. (e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. (f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States located in the Northern District of California or the courts of the State of California located in the city and county of Santa Cruz, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. (g) Assignment. Neither Party may assign or transfer any of its rights or delegate any of its obligations hereunder, in whole or in part, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party. Any purported assignment, transfer, or delegation in violation of this Section 12(g) will be null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. (h) Export Regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software, Updates, or any Customizations, available outside the United States.
    (i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. (j) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
    5 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

TIP Global Health

By:_____________________ Name: __________________ Title: ___________________

By:_____________________ Name: __________________ Title: ___________________