Each Statement of Work (SOW) issued by Blue Heron Solutions Group, LLC (“Blue Heron”) is an offer to sell Services (herein defined) to purchaser (“Client”) and includes and is governed by this Master Service Agreement. Blue Heron’s SOW and this Master Service Agreement shall be deemed accepted by Client upon Blue Heron’s receipt of a purchase order or a signed SOW. Acceptance of Blue Heron’s SOW and this Master Service Agreement is expressly limited to the terms contained in Blue Heron’s SOW and this Master Service Agreement. Blue Heron rejects any terms and conditions contained in Client's forms that are additional to or different from those set forth in Blue Heron’s SOW or in this Master Service Agreement. 

Client and Blue Heron are sometimes referred to individually in this Agreement as a “Party” and collectively as the “Parties.” 

1.0 DEFINITIONS 

As used in this Agreement: 

“Agreement” means this Master Service Agreement and all Statements of Work, schedules and attachments attached hereto or to or otherwise made a part of this Agreement. 

“Confidential Information” means any information furnished by Discloser to Recipient during the term of this Agreement, including, without limitation, pricing, methods, processes, financial data, lists, statistics, software, systems or equipment, programs, research, development, strategic plans, operating data, or related information of each of the parties and/or its or their Clients and suppliers, concerning past, present, or future business activities of said entities. This Agreement is the Confidential Information of Blue Heron. Client Data is the Confidential Information of Client. All other Confidential Information must be clearly designated as “Confidential.” Information provided orally will be considered confidential only if a written memorandum of such information clearly designated as marked “Confidential” is delivered to Recipient within thirty (30) days of the disclosure. As to any particular Confidential Information, “Discloser” means the Party disclosing the Confidential Information and the “Recipient” means the Party receiving the Confidential Information. 

“Content” means information, software, Client Data and other data including, without limitation, HTML files, scripts, programs, recordings, sound, music, graphics, and images that Client creates, installs, uploads or transfers to Blue Heron. 

“Client Data” means all data and information about Client’s business(es), Clients employees, operations, facilities, products, markets, assets or finances that Blue Heron obtains, creates, generates, collects or processes in connection with its performance of Services. 

“Services” means the information technology services to be provided by Blue Heron under this Agreement as specified in any Statement of Work. 

“Statement of Work” or “SOW” shall have the meaning ascribed to it in Section 2.1. Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Statement of Work, unless the language or context requires otherwise. SOW-specific definitions, if any, shall be included in the applicable SOW. 

2.0 GENERAL 

2.1          Agreement Structure.  This Agreement contains general contractual terms for all Services to be provided by Blue Heron to Client. The specific Services that Blue Heron will provide, applicable pricing, service level agreement, if any, and other transaction-specific provisions will be agreed upon through statements of work to this Agreement (each a “Statement of Work” or “SOW”). Each SOW shall be signed by the Parties and will be deemed to incorporate all of the provisions of this Agreement by reference. 

2.2          Order of Precedence. In the event of any inconsistencies between the terms of this Agreement and the terms of any Statement of Work, the terms of this Agreement shall control. The Parties may specify in the applicable SOW that a particular provision of the SOW is to supersede a provision of this Agreement, in which case the superseding SOW provisions shall be applicable only to such SOW and shall be effective for such SOW only if such provision expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision supersedes the conflicting or inconsistent provision in this Agreement. 

3.0 FEES AND PAYMENT TERMS 

3.1          Charges.  Client shall pay to Blue Heron all charges for Services at the rates and charges set forth on the applicable SOW. 

3.2          Reimbursable Expenses. Client agrees to reimburse Blue Heron all reasonable and customary out-of-pocket expenses, including, but not limited to, airfare, rental car, mileage, tolls, and lodging expenses, incurred by Blue Heron in connection with the performance of Services. Meal expenses shall be billed at Blue Heron’s then-current per-diem amount. Travel time will be billed at one-half the on-site billable rate each way. 

3.3          Invoices. All invoices shall be due and payable within thirty (30) days of the invoice date. Client agrees to pay a late payment charge at the rate of one and one-half percent (1.5%) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or portion thereof) that any payment is past due. Blue Heron may apply any payment received to any delinquent amount outstanding. If collection action is necessary, Client shall be responsible for payment of all of Blue Heron’s collection costs, including legal fees and court costs 

3.4          Taxes. The amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Client shall pay all taxes levied and duties assessed by any authority based upon this Agreement, excluding any taxes based upon Blue Heron’s income. This provision shall not apply to any taxes for which Client is exempt and for which Client has furnished Blue Heron with a valid tax exemption certificate authorized by the appropriate taxing authority. 

4.0 OWNERSHIP RIGHTS 

4.1          Services. Blue Heron retains all right, title, and interest in the Services and in all improvements, enhancements, modifications, or derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, and trademark. The Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and Client agrees not to disclose such information to any third party without Blue Heron’s prior permission. 

4.2          Content. Blue Heron acknowledges and agrees that all Content, including copyrights, trademarks, database rights and other intellectual property contained in such Content are owned or licensed by Client. Client grants Blue Heron a license to store, record, transmit and display the Content solely to perform Blue Heron’s obligations under this Agreement. 

5.0 CONFIDENTIAL INFORMATION 

5.1          Restrictions on Use; Non-Disclosure. Recipient agrees that it will use the same care and discretion to avoid disclosure, publication or dissemination of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate (but in no event less than a reasonable degree of care). Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not: (a) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers, agents and consultants who (i) have a need to know to further the purpose of this Agreement; and (ii) are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement. 

5.2          Exceptions. The obligations set forth in Section 5.1 shall not apply to Confidential Information that: (a) before the time of its disclosure was already in the lawful possession of the Recipient; or (b) at the time of its disclosure to Recipient is available to the general public or after disclosure to Recipient by Discloser becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully and independently developed by Recipient without the use of or reliance upon any Confidential Information of the other party and without any breach of this Agreement. 

5.3          Disclosures Required by Law. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information. 

5.4          Disposal of Confidential Information. Upon termination of this Agreement or upon Discloser’s request at any time, Recipient agrees to promptly return to Discloser all copies of Confidential Information. If return is impossible as to any portion of the Confidential Information, then Recipient shall certify to Discloser promptly that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed. Blue Heron will return to the Client, all Client Data in its possession at the date of termination in its then existing format and on its Client-supplied media. Any conversion of format or media performed by Blue Heron in order to discharge its obligations under this Section shall be at Client’s expense. 

5.5          Remedies. The Parties acknowledge and agree that a breach of this Agreement by either Party will cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that Discloser shall therefore be entitled, in the event of any actual or threatened violation of this Agreement by Recipient, and in addition to any other remedies available to it, to a temporary restraining order and to injunctive relief against the other Party to prevent any violations thereof, and to any other appropriate equitable relief. 

5.6          Duration. The obligations set forth in this Section 7 shall apply during the term of this Agreement and for a period of three (3) years thereafter. 

6.0 REPRESENTATIONS AND WARRANTIES 

6.1          By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; (b) it is in compliance, and will continue to comply during the term of this Agreement, with all laws and regulations governing its possession and use of Client Data and its provision or use of the Services; and c) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.

6.2          By Client. Client represents and warrants to Blue Heron that: (a) it owns, or is a licensee of, having the right to sublicense, the Content and that Client has the right to grant Blue Heron the rights that Client purports to grant in this Agreement; and (b) Blue Heron’s possession or use of the Content or Client Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or other proprietary right of any third party. 

6.3          By Blue Heron. Blue Heron represents and warrants to Client that: 

6.3.1      Industry Standards. The Services shall be performed in a good, workmanlike, professional and conscientious manner by experienced and qualified employees of Blue Heron according to the generally accepted standards of the industry to which the Services pertain. In the event the Services provided by Blue Heron are not in conformance with this warranty Blue Heron will take the steps necessary to correct the deficiency at no charge to Client. This is Client’s sole and exclusive remedy for breach of this warranty.

6.3.2      Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF YOUR SECURITY, FOR WHICH BLUE HERON CANNOT BE HELD LIABLE. 

7.0 LIMITATION OF LIABILITY 

7.1          Limit on Types of Damages Recoverable. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, TORT, STRICT LIABILITY AND NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.

7.2          Limit on the Amount of Damages Recoverable. BLUE HERON’S LIABILITY TO CLIENT AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FOR DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL BE LIMITED IN ALL CASES TO DIRECT DAMAGES WHICH SHALL NOT EXCEED, IN THE AGGREGATE, FEES PAID BY CLIENT TO BLUE HERON DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE SOW. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO (a) ANY CLAIM ARISING OUT OF A BREACH OF SECTION 5. 

8.0 TERM AND TERMINATION 

8.1          Term. This Agreement shall remain in effect until terminated by either party as provided in this Section 8. The term of each SOW shall be as specified in that Statement of Work. 

8.2          Termination for Convenience. Either Party may terminate this Agreement for convenience at any time upon written notice to the other Party. If there are any pending Statements of Work, termination shall be effective upon the expiration or termination of the last Statement of Work. If there are no pending Statements of Work, termination shall be effective upon receipt of the written notice. 

8.3          Termination For Breach. Either Party may terminate this Agreement or any individual SOW in accordance with subsection 8.3.1 (in certain circumstances where an opportunity to cure must be provided) or subsection 8.3.2 (in certain circumstances where an opportunity to cure is not available): 

8.3.1      Cure. If the other Party breaches any material provision of this Agreement or any SOW and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the non-breaching Party (“Cure Period”). The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of the breach and how the breach can be cured within the Cure Period. If the breaching Party fails to cure the breach within the Cure Period, then termination shall be effective on the thirty-first (31st) day following receipt of such notice by the breaching Party. 

8.3.2      No Opportunity to Cure. If: (a) the other Party breaches any representation or warranty, whether in this Agreement or any Statement of Work; (b) any representation or warranty is inaccurate, incomplete, false or misleading in any material aspect; or (c) the breach is of a type or nature that is not capable of being cured within such time period (such as, by way of example and not limitation, an obligation relating to Confidential Information). The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of any breach. Termination shall be effective immediately upon receipt of such notice by the breaching Party. 

8.4          Termination for Financial Insecurity. Either Party may terminate this Agreement and all SOWs upon written notice if the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization. Termination shall be effective upon receipt of the written notice. 

8.5          Final Payment. Within thirty (30) days after any termination of this Agreement or individual SOW, Blue Heron will submit to Client a final itemized invoice for all fees and expense due and owing by Client. Client shall pay the invoice in accordance with Section 3. 

8.6          Effects of Termination. Upon termination of this Agreement or an individual SOW and payment by Client of the final invoice described in Section 8.5, Blue Heron will, to the extent applicable: 

(a)           Exercise reasonable efforts and cooperation to effect an orderly and efficient transition of Services to any successor provider identified by Client; 

(b)          Disclose to Client all relevant information regarding the equipment, software and third-party vendor services required to perform the Services; and 

(c)           Make reasonable efforts to effect a transfer or assignment of relevant licenses or agreement(s) for software or any third-party services utilized exclusively to provide the Services to Client; 

Any additional transition services requested by Client shall be provided by Blue Heron on a time and material basis. 

8.7          Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination. Without limiting the generality of the foregoing statement, Sections 4 (Ownership Rights); 6 (Representations and Warranties); and 7 (Limitation of Liability) shall survive any termination of this Agreement. 

9.0 MISCELLANEOUS 

9.1          Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform, which delay or failure is due to causes or circumstances beyond its control and without its fault or negligence, including acts of civil or military authority, national emergencies, labor strikes, fire, flood or catastrophe, acts of God, insurrection, war, riots or failure of transportation or a general and/or city-wide power failure. Each Party shall use reasonable efforts to mitigate the extent of the aforementioned excusable delay or failure and their adverse consequences, provided however, that should any such delay or failure continue for more than thirty (30) days, the Agreement may be terminated without liability by the non-delaying Party. 

9.2          Export Compliance. Each Party shall be responsible for compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations (15 CFR Parts 730-774) maintained by the United States Department of Commerce and that it is not relying on the other Party for any advice or counseling on such export control requirements. Client shall be solely responsible for such compliance with respect to Client Data and the Content that it provides to Blue Heron. 

9.3          Insurance. Blue Heron will obtain and maintain in effect at all times during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability and other types of insurance to protect against any covered claims, liabilities, damages or judgments arising out of Blue Heron’s obligations under this Agreement. 

9.4          Waiver. The failure of either Party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights and the obligations of the Party with respect to such future performance and shall continue in full force and effect. 

9.5          Agreement Binding On Successors. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assignees of the respective Parties. 

9.6          Governing Laws and Venue. The validity, construction, and interpretation of this Agreement and the rights and duties of the Parties hereto, shall be governed by the laws of the State of Michigan excluding its principles of conflict of laws. Venue lies exclusively in the state courts located in Oakland County, Michigan or in the Federal Court in the Eastern District of Michigan. 

9.7          Relationship of Parties. The Parties hereto are independent contractors and this Agreement shall not create or imply an agency relationship between the Parties. Pursuant to and during the term of this Agreement, Blue Heron may, from time to time, request that the Client execute such instruments and documents appointing Blue Heron an agent of the Client for a specific limited purpose. An officer of Client shall, in a timely manner, execute and deliver to Blue Heron or the third party requiring the same, such instruments designating Blue Heron as Client’s agent to the extent required by Blue Heron to manage and perform to Services provided by it under this Agreement. 

9.8          Subcontractors. Blue Heron may engage subcontractors to perform services under any SOW. Blue Heron shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees. 

9.9          Severability. In the event that any of the provisions of this Agreement are declared or held by a court of competent jurisdiction invalid, illegal or unenforceable, the unaffected portions of this Agreement shall be unimpaired and remain in full force and effect. In the event of such a ruling, the Parties shall negotiate in good faith a substitute for the provision declared invalid, illegal or unenforceable. 

9.10       Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if hand delivered or sent by first-class certified or overnight delivery mail, postage prepaid: 

If to Blue Heron: 

Blue Heron Solutions Group, LLC Attn: Legal. 4045 E Hanover Ct., West Bloomfield, MI 48323

If to Client, then to the person executing any SOW under this Agreement. 

9.11       Errors. Neither Party shall be held accountable nor incur any additional costs due to discrepancies, errors, omissions in documentation or other information supplied by the other Party. 

9.12       Captions. The descriptive headings of the sections and subsections of this Agreement are for convenience only, do not constitute a part of this Agreement, and do not affect this Agreement’s construction or interpretation. 

9.13       Amendments. No waiver of any right or remedy and no amendment, change or modification of the terms of this Agreement shall be binding on a Party unless it is in writing and is signed by the Party to be charged. 

9.14       Publicity. Nothing contained in this Agreement shall be interpreted so as to permit Blue Heron or Client to publicize its business relationship with the other Party or the nature of the Services performed for Client, without the other Party’s prior written consent.

9.15       No Solicitation of Employees. Client agrees that during the term of this Agreement, and for a period of one year after the termination or expiration of this Agreement, it will not solicit, without Blue Heron’s prior written consent, any person employed then by Blue Heron if such person became known to Client through the relationship established pursuant to this Agreement. 

9.16       No Third Party Beneficiaries. This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or party other than the Parties. 

9.17       Assignment. Neither Party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing restriction, Blue Heron and Client may assign this Agreement in whole or in part to a present or future affiliate, subsidiary, successor or third-party contractor, or may assign its right to receive payment upon notice to the other party. 

9.18       Entire Agreement. This Agreement, including all SOWs and all schedules, attachments and/or other documents attached thereto or incorporated by reference constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the Parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty or agreement of the other Party except for those expressly contained in this Agreement.