THIS Master Agreement for RCI Services “Agreement” is made as of the date signed (“Effective date” between Reliability Center Inc. (“RCI”), a corporation incorporated under the laws of the Commonwealth of Virginia, AND the company services are provided to (“Customer”).
RCI and Customer are individually referred to herein as a “Party” and collectively as the “Parties”.
NOW THEREFORE, in consideration of the premises and the covenants and agreements herein contained, the Parties agree as follows:
1. Definitions
In this Agreement (‘the Terms’) the following terms have the meanings set out below:
“Booking” means an occasion on and/or between specific dates during which RCI personnel provide Services to a Customer. A single Proposal may include multiple Bookings.
“Booking Time” means the date and time at which a Customer officially reserves Service Delivery Date(s) for RCI Personnel to provide Services.
“Business Days” means days include Monday through Friday and excluding weekends and public holidays.
“Consultant” means RCI Personnel responsible for providing Services to the Customer.
“SOW Contract” means the Statement of Work (SOW) Contract document issued to the Customer in reference to the finalized Proposal (from RCI) and the Purchase Order (from the Customer) indicating the agreed-to services, delivery times, and prices (also known as the Invoice).
“SOW Contract Value” means the aggregate amount payable by the Customer to RCI in relation to Services provided on a single SOW Contract. The SOW Contract Value will be as specified in the SOW Contract and, unless otherwise stated, will be:
- Exclusive of any applicable taxes or wire transfer fees, including VAT, GST, and/or other Country-specific withholding taxes. Such taxes or fees will be billed to the Customer separately.
- Exclusive of all expenses incurred by RCI in relation to the provision of the Services, including, without limitation, Travel and Living expenses unless otherwise stated in the SOW Contract. Such expenses will be billed to the Customer separately, as specified in the SOW Contract.
- Payable in US Dollars
NOTE: The definition for “SOW Contract Value” is slightly different in relation to SOW Contracts for consulting/facilitation services. See Section 6 General Terms for Consulting/Facilitation for details.
“Customer” means the company to whom the Services are being provided (even if another entity is paying for the Services).
“Customer Scheduling POC” means a qualified and sufficiently authorized employee for scheduling regarding RCI Services.
“Personnel” means:
- In relation to the Customer, any of its past or present officers, any of its employees, Subcontractors (including Subcontractors’ Personnel), agents or representatives; and
- In relation to RCI, any of its past or present officers, employees, Subcontractors (including Subcontractors’ Personnel), agents or representatives.
“Proposal” means a description of the Services being provided.
“Purchase Order” means an individual Purchase Order as issued by the Customer for RCI Services once a final SOW Contract is agreed upon.
“Services” means the work (e.g., training, consulting) identified in the proposal to be performed by RCI in accordance with the SOW Contract. (Services does not include EasyRCA Services, which, if desired by Customer, are governed by a separate Easy RCA Terms and Conditions agreement).
“Service Delivery Date(s)” means the dates upon which RCI Personnel shall provide Services to the Customer.
2. SOW Contract
All work performed by RCI will be documented in a SOW Contract. Each SOW Contract shall establish:
- the general nature of the Services to be performed
- the estimated duration and/or completion date of the Services
- the SOW Contract Value
- any applicable dependencies including Customer requirements that must be met.
- It may also include, if applicable, the approximate number of hours and/or an hourly rate or fee.
Each SOW Contract will specifically state that its terms incorporate and are governed by the terms of this Master Services Agreement.
If there is a conflict between this Agreement and the SOW Contract, this Agreement shall control unless otherwise expressly agreed by the parties in writing.
Either party may propose changes in the scope of the Services and Proposal Value via a written request, but neither party will be bound by any proposed change until both parties have agreed to that change in writing.
3. Fees and Deposit
Due at Booking Time: A signed Purchase Order for 100% of SOW Contract Value is due at Booking Time unless otherwise agreed upon. SOW Contract Value is due within thirty (30) business days of the SOW Contract date.
Expenses: Expenses, including Travel & Living, shall be billed as pass through supported by receipts within ten (10) business days after Services are delivered.
- All international travel will be booked & billed in business class.
- Any travel fares purchased for a Booking will be passed on to the client.
Travel Days: Travel Days will be billed at up to $1,500/day (USD) to accommodate Consultant/Trainer stand-by time. These will be billed along with the cost of training. Travel days will include one day before and one day after booked days.
Minimum Fees: Minimum labor charge for any single day of RCI Personnel Services is eight hours unless otherwise agreed upon with the Customer.
Invoice Terms
All Invoice Terms shall be Net 30 unless previously agreed upon between customer and RCI.
- Any payment that is not paid within 30 days of invoicing may be subject to late fees of 1.5% per month.
- In the event that fees continue past due and unpaid, RCI may suspend provision of all Services until amounts are paid in full.
4. Point of Contact and Cooperation
Customer shall provide the following details for the Customer Scheduling POC to RCI on the Purchase Order:
- Name
- Email Address
- Phone Number
RCI’s performance depends upon Customer’s effective cooperation in connection with the Services, including providing RCI with timely, complete and sufficient access to appropriate data, information, qualified and sufficiently authorized Customer personnel, and prompt responses to questions and requests as necessary for RCI to complete the Services. RCI will not be liable for any failure or delays in performing the Services, to the extent that the failure or delay is caused by Customer’s failure to cooperate. RCI is entitled to and will rely upon the accuracy and completeness of data, material, and other information furnished by Customer, without any independent investigation or verification.
5. General Terms for Training
Customer Provisions: Customer will make available at its cost a physical location in which training classes can be performed, shall provide computer equipment for any individuals being trained, shall provide visual display/projection equipment, internet access and other training session related materials and supplies as needed.
Registration: Registrations are to be made in writing, by e-mail, or via the Internet to RCI at least ten (10) business days before training. RCI will not be responsible for a lack of course materials for any trainee who is not registered before the required registration date.
Substitutions: If a course participant is prevented from attending Training, a substitute person can attend instead.
Duration: Training durations are a maximum of 8 hours per day. Unless otherwise agreed, the courses start no earlier than 8 AM and ends no later than 6 PM, local time. Lunch and other breaks will be held as agreed.
6. General Terms for Consulting/Facilitation
Total cost and anticipated completion dates for Consulting and/or Facilitation Services in a Consulting/Facilitation Proposal are estimates. 100% of the estimate shall be invoiced upon receipt of the Purchase Order.
Any additional fees and travel and living shall be invoiced as they are incurred. A report of all additional hours (if any) spent and Services performed shall be provided.
7. Booking and Scheduling
Scheduling: RCI will try to accommodate the Service Delivery Date(s) requested by the Customer to the extent commercially practicable. RCI reserves the right to change Service Delivery Date(s) for any Services if RCI personnel are unable to perform scheduled Services because of illness, resignation, weather, or other causes beyond RCI’s reasonable control. RCI will make commercially reasonable efforts to replace any such personnel within a reasonable time in order to limit impact on the schedule.
If a postponement of the appointment is not possible, RCI will refund the already paid deposit and/or course fees.
Confirmation: Only when a Purchase Order is received and a SOW Contract issued on a Booking is said Booking Confirmed. RCI reserves the right to reschedule non-Confirmed Bookings for Bookings that have been Confirmed.
Rush Booking: Any Services requested with less than ten (10) business days’ notice will be considered a Rush Booking and charged at 1.5 times rate. This includes Travel Day rates. Travel and Living expenses will be billed as pass through as would be for a Standard Booking.
Changes to Training Seats
Additional training seats for existing training courses will be billed at the same rate, provided no schedule impact to RCI Personnel. RCI reserves the right to refuse to add more training seats to an existing training with less than ten (10) business days’ notice or if adding seats will impact RCI Personnel’s schedule.
RCI will not refund training seats for no-shows.
Cancellations of individual seats with less than ten (10) business days’ notice will be considered a no-show. Credit for courses will not be given.
Rescheduling a Training
Customers may request that previously scheduled Services be rescheduled based on availability of consultants. In case of rescheduling:
- If training dates are changed within thirty (30) business days of service, 100% of the SOW Contract will be given as a credit for future training.
- If training dates are changed within ten (10) business days of service, 50% of the SOW Contract will be given as a credit for future training.
- Any travel and living (or other) costs which have been incurred by RCI will be billed to the Customer.
Canceling a Training
In case of cancellation of Services:
- If training is canceled within thirty (30) business days of service, 50% of the SOW Contract will be given as a credit for future training.
- If training is canceled within ten (10) business days of service, RCI reserves the right to retain the full SOW Contract value.
- Any travel and living (or other) costs which have been incurred by RCI will be billed to the Customer.
8. Confidential Information.
Confidential Information shall mean all non-public, confidential, or proprietary information disclosed on or after the Effective Date, by either Party (a “Disclosing Party”) to the other Party (a “Recipient”) or its affiliates, or to any of such Recipient’s or its affiliates’ employees, officers, directors, partners, shareholders, agents, attorneys, accountants, lenders, or advisors (collectively, “Representatives”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” whether or not originated by Disclosing Party, Recipient, or others, including without limitation:
- trade secrets, unpatented inventions, ideas, methods, and discoveries, techniques, methodologies, drawings, design details, specifications, inventions, know-how, processes, unpublished patent applications, and other confidential intellectual property;
- information concerning Disclosing Party’s past, present, and future business affairs including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales, and other commercial strategies;
- information about Disclosing Party’s human resources, marketing, research, business and products;
- third-party confidential information included with, or incorporated in, any information provided by Disclosing Party to Recipient or Recipient’s Representatives, as defined below;
- any other information about Disclosing Party that would reasonably be considered non-public, confidential, or proprietary given the nature of the information and Disclosing Party’s operations that is not generally known by non-Disclosing Party personnel or contractors, or the disclosure of which would be detrimental to Disclosing Party including without limitation, information and personal information from Disclosing Party’s employees, customers and contractors; and
- notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials (the “Notes”) prepared by or for the Recipient or its Representatives that contain, are based on, or otherwise reflect or are derived, in whole or in part, from any of the foregoing.
Except as required by applicable federal, state, or local law or regulation, the term “Confidential Information” as used in this Agreement shall not include information that:
- at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by the Recipient or any of its Representatives;
- at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by a legal, fiduciary, or contractual obligation to the Disclosing Party;
- was known by or in the possession of the Recipient or its Representatives before being disclosed by or on behalf of the Disclosing Party under this Agreement; or
- was or is independently developed by the Recipient without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information.
Covenant of Nondisclosure and Protection of Confidential Information. Recipient shall:
- maintain the confidentiality of the Confidential Information and protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
- disclose the Confidential Information only to its Representatives who reasonably need to review the Confidential Information in connection with carrying out the purposes of this Agreement, and further provided that such Representatives agree in writing to confidentiality obligations at least as restrictive as set forth in this Agreement. Recipient hereby agrees that it will not disclose the Confidential Information to any person or entity other than as absolutely necessary in carrying out its obligations under this Agreement;
- comply with all applicable on-site access, remote access, and related security rules and procedures of Disclosing Party;
- not use the Confidential Information, or permit it to be accessed or used, for any purpose other than expressed in this Agreement, or otherwise in any manner to Disclosing Party’s detriment;
- not copy or transfer the Confidential Information other than as necessary in carrying out its obligations and duties under this Agreement, without first obtaining Disclosing Party’s prior written consent, and shall take all reasonable precautions to prevent inadvertent use, copying or transfer of such Confidential Information; and
- immediately notify Disclosing Party of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient has knowledge.
Compelled Disclosure. If Recipient is requested to disclose any Confidential Information pursuant to an applicable federal, state, or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”), Recipient will promptly notify Disclosing Party in writing and cooperate with Disclosing Party’s efforts to obtain a protective order or other reasonable assurance that Disclosing Party’s Confidential Information will remain confidential. If, after providing such notice and assistance as required by this provision, Recipient remains subject to a Legal Order to disclose any Confidential Information, Recipient shall disclose, and shall require its Representatives or other persons to whom the Legal Order is directed to disclose, no more than the portion of the Confidential Information which the Legal Order specifically requires and shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that the Confidential Information disclosed will be afforded confidential treatment.
9. Intellectual Property.
To the extent any Services delivered by RCI to Customer under this Agreement or any SOW Contract contains processes, methodologies, know-how and software, source code, compilation of data, proprietary information, patents, copyrights, trademarks and service marks, trade dress, trade names, trade secrets and know-how, licenses and any other intellectual property or proprietary rights of any nature, by whatever name or term known and however designated, including without limitation the PROACT® RCA Methodology and PROACT® process (and including such information as existed prior to the delivery of Services by RCI under this Agreement), such property is RCI’s Intellectual Property. Provided that Customer complies with all obligations under this Agreement, including payment of all amounts due to Customer under this Agreement, RCI hereby grants Customer a non-exclusive, non-assignable, royalty-free license to use such RCI Intellectual Property in connection with the subject matter of the Agreement or SOW Contract. Customer may not use RCI’s Intellectual Property in any business that is competitive with RCI’s Services without the written consent of RCI. This section shall survive the termination of this Agreement.
10. Limitation of Liability.
RCI SHALL NOT BE LIABLE TO CUSTOMER OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR RCI’S SERVICES PROVIDED UNDER ANY SOW CONTRACT, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF RCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL RCI’S TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE SERVICES PROVIDED BY RCI FOR THE YEAR PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
11. Disclaimer of Any Warranty.
RCI’s Services are provided “as is” without any warranty whatsoever. RCI disclaims all warranties whether express, implied, or statutory to Customer as to any matter whatsoever, including all implied warranties of merchantability, fitness for a particular purpose and non-infringement of third-party rights. No oral or written information or advice given by RCI or its employees or representatives shall create a warranty or in any way increase the scope of RCI’s obligations. This section shall survive the termination of this Agreement.
12. Miscellaneous
Applicable Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of laws provision. The exclusive venue for resolution of any disputes arising out of this Agreement shall be Richmond, Virginia.
Severability. The Parties understand and agree that the provisions of this Agreement are severable, and, should any provision be found unenforceable, the other provisions shall remain fully valid and enforceable.
Assignment; Amendment. This Agreement may not be assigned by either party without the prior written consent of the other party. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. This Agreement may not be amended except by a writing of both Parties.
Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Counterparts and Signatures. This Agreement may be executed in counterparts, and all executed counterparts together shall constitute one agreement. Signatures may be delivered by facsimile or electronic transmission, and each party to this Agreement may rely upon a facsimile or electronically-delivered signature as if it were an original.
IN WITNESS WHEREOF each Party by its duly authorized representative(s) have duly executed this Agreement.