Sample_MSA.pdf

MASTER SERVICES AGREEMENT

This __________ Master Services Agreement (the “Agreement”), is entered into as of the effective date designated on the signature page here (the “Effective Date”) between NEORide, a

Regional Council of Governments, whose headquarters is located at One Park Center Drive Suite

300, Wadsworth, Ohio 44281 (“NEORide”) and __________, (“__________”) located at

NEORide and __________ will be referred to individually as a “Party” and will be referred to collectively as “Parties” within this Agreement.

NEORide is a Council of Governments that was formed to plan, promote, further, and enhance transportation options within the jurisdictions of NEORide’s Members (the “Members”) by encouraging cooperative agreements and coordinated action among the Members, and between the Members and other governmental agencies, private persons, corporations, or agencies.

NEORide is entering into this Agreement to facilitate the purchase of __________es (the

“Services”) to be supplied by __________ to members of NEORide (hereinafter a “Customer,”

“Member” or “Participating Agency”) who wish to participate upon the terms and conditions contained in this Agreement. __________ was selected by NEORide in a competitive process

(RFP No. – XXXX-XX __________es) to provide the Services. See generally Appendices A-E.

Now therefore, in consideration of the promises made and exchanged herein, the Parties agree as follows.

AGREEMENT

1. Definitions.

1.1. Confidential Information. Confidential Information means information, data, or materials in either tangible or intangible form that is marked “confidential” and constitutes trade secrets (as defined in R.C. 1333.61(D)) or intellectual property records (as defined in

R.C. 149.43(M)) of a disclosing party or its clients or business partners, including as may be so designated by statute, regulation, or common law. Confidential Information does not include any item that constitutes a non-exempt public record under R.C. 149.43.

1.2. Customer. Customer means a member of NEORide who has elected to purchase

Services from __________. NEORide is not considered a customer.

1.3. Member. Member means a NEORide member. NEORide itself is not a Member.

1.4. Participation Agreement. Participation Agreement means the agreement signed between the Customer and __________ that allows the Customer to purchase Services from __________.

2. Term of Agreement. The term of this Agreement shall commence on the Effective Date as set forth on the Signature Page and be for three (3) years (the "initial term”) unless terminated earlier under Section 9. NEORide shall have the sole option to renew this Agreement for up to two

(2) separate one-year terms following, respectively, the initial term and the first successive term

(each separate one-year term constitutes a “successive term”) unless terminated earlier under

Section 8. The Agreement may last for a maximum of five (5) years.

NEORide shall notify __________ at least thirty (30) days before the expiration of the initial term or, if there is a first successive term, at least thirty (30) days before the expiration of the first successive term, as to whether NEORide will renew the Agreement for another successive term.

3. Scope of Services to NEORide Members. __________ will provide the Services described in Section 4 to Member(s) that voluntarily place orders directly with __________ at the prices listed in Appendix B, thus becoming Customer(s). Members may become Customers during the term of this Agreement.

A NEORide Member who is a Customer under this Agreement and who withdraws from NEORide must terminate its Participation Agreement at the earliest time allowed by this Agreement, the applicable Participation Agreement, or by the effective date of the Member’s withdrawal from

NEORide, whichever occurs first. __________ agrees that it will take actions consistent with this section if a Customer withdraws from NEORide.

All costs are incurred by the respective Customer. NEORide incurs no cost, nor is NEORide liable for any unpaid Customer cost. Prices were negotiated by NEORide for the benefit of its Members who may become subsequent Customers.

4. Services. __________ shall make available for order by participating Customers, in accordance with Appendix A and Participation Agreements, the four options for Services outlined in its RFP Response to NEORide’s Request for_______. __________’s (Date of Response), Response to the NEORide Request for ______is attached hereto and incorporated as if fully rewritten in this section as Appendix A.

Additionally, __________ agrees to abide by requirements in Sections 3.5 – 3.7 of the NEORide

RFP related to the System Design, Design and Functionality, and Installation, and as outlined in

__________’s RFP response (see Appendix A). NEORide’s RFP-XXXX-XXX __________es is attached hereto and incorporated as if fully rewritten herein as Appendix B.

The Parties agree that there is no minimum number of guaranteed Customers nor is there any minimum revenue amount received by __________ or owed to __________ by NEORide or

Customer as a result of this Agreement, or any individual Participation Agreement, as applicable.

5. Pricing. For the term of the Agreement, _________ will offer the Services to Customers that sign a Participation Agreement and place orders directly with __________ at the prices outlined in its its Pricing Proposal to NEORide, attached hereto and incorporated as if fully rewritten herein as Appendix C.

__________ reserves the right to update any other fees and charges in Appendix priced in nominal terms and not as a percentage, annually each year no later than thirty (30) days after the anniversary of the Effective Date, at the lower of (i) three percent (3%); or (ii) the USA Consumer Price Index

(CPI). __________ will set the CPI percentage according to the average of the previous three (3) available months of CPI Index for all Urban Consumers (current series) data.

__________ agrees and understands that NEORide shall not be responsible for any fees of any

Customer if that Customer terminates the use of any Services or products in accordance with the terms of the relevant Participation Agreement.

6. Payment.

6.1. Payment. __________ will invoice each Customer for amounts due for the

Services selected by each Customer. Unless other terms are agreed to in writing, Customer shall pay __________’s invoice within thirty (30) days after receipt of

__________’s invoice.

6.2. Disputed Charges. In the event of disputed charges, a Customer must, as soon as practicable following identification of such dispute, but not to exceed fifteen (15) days from the due date of the charge, provide written notice to __________, which shall include the date and number of the invoice, disputed amounts, the reason for the dispute, and any supporting documentation. The Parties will use their good faith efforts to reconcile any disputed charges within sixty (60) days after the date of notification.

6.3. NEORide Liability. __________ agrees that NEORide incurs no liability for any

Customer’s failure to make any payments under Sections 6.1 – 6.3, above.

6.4. Payment to NEORide. As outlined in the RFP, this procurement is funded through an administration fee of .75% (three-quarters of one percent) paid to NEORide by all awarded contractors, including __________. The fee is based on the actual project sales received by __________. __________ agrees to pay .75% administrative fee based on __________’s actual invoices and paid sales to all

Customers who utilize the Agreement. The .75% administrative fee does not include shipping costs, required bond costs, or any taxes that may be applicable.

NEORide will invoice __________ for the .75% administrative fee upon the completion of each new Customer Participation Agreement. To do this, __________ agrees to notify NEORide, in writing, not less than fourteen (14) days after the completion of each new Customer Participation Agreement. Unless other terms are agreed to in writing, __________ agrees to pay the .75% administrative fee invoice to NEORide within thirty (30) days upon __________’s receipt of the same.

7. Member Participation and Ordering; Participation Agreements. Members will contract directly with _________ to purchase any Services outlined in Section 4 or Appendix A at the prices identified in Appendix C. To do this, NEORide Members will sign a Participation

Agreement (thus becoming a “Customer”), which incorporates this Agreement and allows the

Customer to individually order Services. A sample Participation Agreement is attached hereto as

Appendix E. Customers are not prohibited from revising Appendix E subject to __________’s agreement, which shall be unreasonably withheld.

8. Delivery of Services. __________ will make timely delivery of all Services purchased under all respective Participating Agreement(s). __________ shall ship any Services in accordance with shipping instructions provided by Customer. __________ will notify Customer when it is made aware of probable late delivery of any offered Service.

9. Termination.

9.1 Termination for Default or Breach. If, through any cause, __________ shall fail to materially perform fully, timely and in proper manner its obligations under the

Agreement, or if __________ shall materially breach any of the covenants, conditions or agreements contained in the Agreement, NEORide shall thereafter have the right to terminate this contract by giving notice in writing which shall specify the effective date thereof, to __________ of such termination.

Notwithstanding the foregoing, as a condition precedent to effectuating a termination under this section 9.1, NEORide shall provide __________ a written

Notice of Intent to Terminate for Default/Opportunity to Cure, explaining the basis claimed for the termination and providing Company thirty (30) days from the date of receipt to cure the material failure to perform or breach under the Agreement. In the event cure is not effectuated within such thirty (30) day period, NEORide may proceed with termination for default or breach by written notification to

__________ setting forth the effective date.

For avoidance of doubt, termination of this Agreement by NEORide for breach or default shall not serve to terminate any Participation Agreement entered into between __________ and a Customer before the effective date of NEORide’s termination of this Agreement for breach or default.

9.2 Termination for Convenience. NEORide may terminate this contract any time by a notice in writing that shall specify the effective date thereof, from NEORide to

__________, at least thirty (30) days before the effective date of such termination.

Termination of this Agreement by NEORide for convenience shall not serve to terminate any Participation Agreement entered into between __________ and a

Customer before the effective date of NEORide’s termination of this Agreement for convenience.

9.3 NEORide’s Obligations upon a Customer’s Termination. If a Customer terminates use of any __________ Services pursuant to in accordance with the terms of a Participation Agreement between a Customer and __________, NEORide shall not be responsible for any fees of the Customer once the Customer terminates use of __________’s Services.

10. Confidential Information. Each party agrees to obtain prior written consent before disclosing any of the other party's Confidential Information. Each party further agrees to use the other's Confidential Information only in connection with this Agreement. Each party further agrees to protect the other party's Confidential Information using the measures that it employs with respect to its own Confidential Information of a similar nature, but in no event with less than reasonable care.

In the event NEORide receives a request for __________’s Confidential Information, including this Agreement and the terms and conditions contained herein, under Ohio’s Public Records Act

(R.C. 149.43), or in connection with judicial, arbitral or other action at equity or law (“Legal

Action”), NEORide agrees to provide __________ timely notice of such a request and to assist

__________ in seeking to protect its Confidential Information under any applicable public records exemption, or in connection with Legal Action, under any applicable legal basis and/or to obtain a protective order, to the extent possible under applicable law.

__________ agrees and understands that NEORide is the sole entity that determines whether items constitute a public record under Ohio law. Notwithstanding the preceding sentence, if NEORide and __________ disagree over whether a public records requests or other request for documents involves __________’s Confidential Information, __________ may file a Declaratory Judgment

Action in the Medina County Court of Common Pleas pursuant to Chapter 2721 of the Ohio

Revised Code. __________ shall file its Declaratory Judgment Action within five (5) business days after receipt of NEORide’s written notice that requested information does not constitute

Confidential Information. NEORide and __________ are separately responsible for any fees incurred relative to any Declaratory Judgment action filed pursuant to this Section.

11. Notices. Any notices that either of the Parties may need to deliver to the other Party shall be sent as follows:

If to NEORide, via Certified US Mail to:

NEORide

One Park Center Drive Suite 300

Wadsworth, Ohio 44281

ATTN: Katherine Conrad

If to __________, via Certified US Mail to:

Address Line 1

Address Line 2

12. Representation and Warranty of __________. For the term of this Agreement and any optional successive term, __________ represents and warrants that it will provide Services identified in a professional and workmanlike manner, in accordance with all reasonable professional standards for such services, and in compliance with all applicable federal, state, and local laws, rules and regulations.

Further, __________ represents and warrants that all employees, personnel, or agents of

__________ that are performing Services shall be trained, experienced, professional, and, where applicable, licensed, certified, and bonded to perform the services.

__________ additionally warrants that, at a minimum, will provide the following warranty in providing the Services:

{SERVICES}

13. Data Ownership. Customers own all rights to all non-algorithmic data obtained by

__________ from Customer during the Agreement (“Customer Data”). This includes all writings, materials, and products produced by __________ in the course of performing this Agreement that are fully comprised of, or portions thereof comprised of, Customer Data. __________ further assigns all copyright interests in the Customer Data to the applicable Customer.

Subject to Customer’s rights in Customer Data set forth above, and notwithstanding anything herein or in any Participation Agreement, intellectual property supplied by __________ in connection with this Agreement or any Participation Agreement, including customizations, modifications, derivations, updates thereto, and including without limitation as may be provided as part of or in combination with deliverables otherwise furnished in connection with the

Agreement or a Participation Agreement, is and remains at all times the intellectual property of

14. Warranty Against Infringement. __________ warrants that the Services covered by this

Agreement and use of them will not infringe any United States or foreign letters patent, and subject to reasonably prompt notification by NEORide or Customer, as applicable, when it becomes aware of a claim of infringement, and excluding such claims as involving breach of license, or misuse of

Service(s), or use of Service(s) in combination with unapproved third party elements, __________ agrees to defend, protect, or save harmless NEORide or the applicable Customer, and the foregoing’s successors and assigns against all suits at law or in equity, and from all damages and expenses resulting from, such third party claims and demands, made against above-identified indemnitees, for actual or alleged infringements of any patent by reason of the sale or use of the

Services covered hereby.

15. Insurance. __________ shall maintain, at its own expense, throughout the period of the

Agreement and any extensions thereof and provide the following minimum insurance coverages of the types and in the amounts described below that are applicable to the scope of work being performed:

a. Worker’s Compensation and Employer’s Liability Insurance. __________ must carry Workers' Compensation Insurance (including occupational disease) in compliance with Workers' Compensation statutes of any applicable jurisdiction in which the Work is to be performed. For the attainment of Workers Compensation in monopolistic states, including Ohio, coverage must be secured through the state fund.

If __________ is a qualified self-insurer in compliance with the laws of the state, this is also acceptable. A certificate of compliance from the appropriate workers' compensation bureau or board must be provided with the certificate of insurance.

● Part A – Statutory

● Part B – Employers Liability o Bodily Injury by Accident $500,000 o Bodily Injury by Disease (Policy Limit) $500,000 o Bodily Injury by Disease (Each Employee) $500,000

__________ must also carry Employer’s Liability Insurance with minimum limits of

$1,000,000 for each accident; $1,000,000 for disease (per employee); and $1,000,000 for disease (policy limit). This policy must include Ohio "Stop Gap" coverage, including coverage for "substantially certain" claims.

b. Commercial General Liability Insurance. __________ must carry Commercial

General Liability Insurance written on ISO form CG 00 01 10 01 (or its equivalent) with limits of $1,000,000 per occurrence and in the aggregate. __________ shall issue certificates of insurance to NEORide in advance of any contract execution naming

NEORide as Additional Insured.

c. Commercial Auto Liability Insurance. __________ shall carry Commercial

Automobile Liability Insurance covering all owned, leased and non-owned vehicles used in connection with the work to be performed under this contract, with limits of not less than $1,000,000 combined single limit per accident for bodily injury and property damage. __________ shall issue certificates of insurance to NEORide in advance of any contract execution naming NEORide as Additional Insured.

d. Fidelity Bond/Crime. If __________ or its employees will be on the premises of

NEORide in connection with performance of work under this Agreement, __________ shall carry no less than $1,000,000 in Third Party Crime Coverage for the benefit of

NEORide in the event of theft or other intentional harm to NEORide’s and Customer’s property by __________’s employees.

16. Force Majeure. If a Party’s performance of obligations under this Agreement is materially hampered, materially interrupted, or materially interfered with for unforeseen reasons entirely outside of its control including, but not limited to: fire, casualty, lockout, strike, labor conditions, utility or telecommunications provider service interruption, unavoidable accident, riot, war, earthquake, landslides, public health pandemic, disease, or other acts of God; or by the enactment, issuance, or operation of any municipal, county, State, or federal law, ordinance or executive, administrative, or judicial regulation, order or decree (except that of NEORide acting in its commercial or contracting capacity); or by any local or national emergency, the impacted party shall employ all reasonable mitigation measures; to the extent that a Party’s performance remains materially hampered, interrupted or interfered with notwithstanding such mitigation, and provided that the Party impacted has provided to the other Party notice within seven (7) days of commencement of event materially impeding performance, such Party shall be excused from performance of this Agreement; and to the extent NEORide is the impacted Party, NEORide will not be responsible for payment of services not yet rendered but shall not be excused from responsibility for payments for work performed or Services provided.

17. Indemnification. __________ shall indemnify and save harmless NEORide, its trustees, officers and employees from and against all losses, costs, liability, damages and expenses, including reasonable and documented attorney fees, for third party claims for, personal injury and damage to tangible property to the extent such damage, such losses, costs, liability, and expenses arise out of or result directly or indirectly, from work or operations under the Agreement including but not limited to the acts, errors, omissions and negligence of __________'s employees and agents, except to the extent of NEORide's own negligence.

18. Independent Contractor. It is the express intention of the Parties that the Parties are independent contractors, and that __________ is not an employee, agent, joint venturer, or partner of NEORide, and that __________ is not an employee, agent, joint venturer or partner of

NEORide. Neither party can bind the other to any agreement absent express written approval.

19. Conflicts of Interest. __________ represents and warrants the following:

a. No Current or Prior Conflict of Interest. That __________ has no business, professional, personal, or other interest, including, but not limited to, the representation of other clients, that would conflict in any manner or degree with the performance of its obligations under this Agreement.

b. Notice of Potential Conflict. If any such actual or potential conflict of interest arises under this Agreement, __________ shall immediately inform NEORide in writing of such conflict.

c. Termination for Material Conflict. If, in the reasonable judgment of NEORide, such conflict poses a material conflict to and with the performance of __________’s obligations under this Agreement, then NEORide may terminate the Agreement immediately upon written notice to __________; such termination of the Agreement shall be effective upon the receipt of such notice by __________.

20. Interest of Members of Congress. No member of, or delegate to, the Congress of the

United States shall share a part of this Agreement or to benefit arising therefrom.

21. Assignment and Subcontracting. Except as expressly otherwise provided in this Section, neither Party may assign, hold on trust or otherwise transfer, part with or share any of its respective rights or obligations under this Agreement (or purport to do so) without the prior written consent of the other (which consent shall not be unreasonably withheld or delayed). __________ shall not be permitted to sub-contract its obligations under this Agreement without the prior written consent of NEORide (which consent shall not be unreasonably withheld or delayed), provided always that

__________ shall remain primarily liable to NEORide and the Customer(s), as applicable, for the performance of those obligations.

22. Incorporation of RFP Response and FTA Terms. __________ agrees to abide by the terms provided in its RFP submissions (attached as Appendix A) to NEORide, which are incorporated into and made a part of this Agreement. __________ understands that it is contractually bound by Appendix A, the requirements outlined in NEORide’s RFP (outlined in

Appendix B), __________’s pricing outlined in Appendix C, and this Agreement.

__________ further agrees to abide by the additional Federal clauses set forth by the Federal

Transit Administration, attached hereto as Appendix D and incorporated into this Agreement as if fully rewritten herein. By signing this Agreement, __________ hereby certifies that it has reviewed

Appendix D in its entirety and agrees to be bound by its terms.

23. Access to Records. NEORide shall have access to any books, records, and documents of

__________ that are reasonably related to this Agreement for audits, examinations, excerpts, and transcripts, and copies thereof shall be furnished upon reasonable advance request, during the period the Agreement is in effect and for three years after the Agreement terminates or expires, except in the event of litigation or settlement of claims arising from the performance of this

Agreement, in which case __________ agrees to maintain same until NEORide has disposed of all such litigation, appeals, or claims related thereto.

24. Applicable Law. This Agreement shall be governed by the laws of the State of Ohio.

25. Choice of Forum. All claims, counterclaims, disputes and other matters arising out of or correlating to this Agreement, or its breach will be decided in a court of competent jurisdiction within Medina County, Ohio, or for federal matters, within the United States District Court for the

Northern District of Ohio.

26. Customer Terms and Conditions and Federal Clauses. __________ agrees and understands that NEORide or Customer may be subject to additional terms and conditions as required by the Federal Transit Administration. __________ agrees that it cannot request or require

NEORide or Customer to take any action that is prohibited or inconsistent with the Federal Transit

Administration’s terms.

27. Publicity. NEORide and Customer(s), as applicable, hereby consent to inclusion of its name and logo in client lists and marketing materials that may be published as part of NEORide or Customer’s marketing and promotional efforts, as applicable. From time to time upon

__________’s request, NEORide or Customer, as applicable, agree it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Customer).

28. Captions. Captions contained in this Agreement are included only for convenience of reference and do not define, limit, explain or modify this Agreement or its interpretation, instruction or meanings and are in no way intended to be construed as part of this Agreement.

https://www.lawinsider.com/clause/captions

29. Severability. If any Clause of this Agreement is held invalid, the remainder of the

Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law.

30. Counterparts. The Parties agree this Agreement may be executed by facsimile or email and in multiple PDF counterparts by the parties, and the counterparts shall collectively constitute a single, original, document, even though the signatures may not appear on the same page.

31. Entire Agreement; Modification. This Agreement, including referenced attachments, constitutes the complete and exclusive understanding and agreement of the Parties and supersedes all prior promises, understandings, and agreements, whether written or oral, concerning the subject matter hereof. In case of a conflict between the terms of this Agreement, the terms shall be applied in the following order of precedence: (1) FTA Terms (Appendix D); (2) This Agreement (inclusive of Appendices A-B); (3) Participation Agreements, as applicable (A template of which is attached as Appendix E). Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties hereto.

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SIGNATURES

Each Party hereby represents and warrants to the other Party that it has the right, power, legal capacity, and authority to enter into and perform its obligations under this Agreement and that the signature and execution of this Agreement have been duly authorized.

__________, INC. NEORide