Master Services Agreement

This Master Services Agreement (the “Agreement”) is between Whales Ventures, LLC, with offices at 12526 River birch Dr Riverview, FL 33569, United States, represented by Vladyslav Kytainyk, CEO,  (“Whales”), and a client company. 

1. Term Of Contract

Section 1.1. This Agreement will become effective as of the date of execution by both parties and will continue in effect until said termination unless earlier terminated by Client or Whales pursuant to section 9, Termination of Agreement,  herein. 

2. Services To Be Performed By Whales

Section 2.1. Client wishes to engage Whales to provide consulting services as described in this Agreement and Whales wishes to provide services to Client. Specific services to be provided shall be specified in a separate Statement of Work (“SOW”) executed by the parties. 

Section 2.2. Whales will determine the method, details, and means of performing the services for Client, and Client will provide specific guidelines for what they are looking to accomplish (“Specifications”).  

Section 2.3. During the course of an assignment hereunder, Client may desire a change in the scope of the SOW  Requests for changes are to be made in writing and delivered to the Whales. Both parties shall review the proposed change and either approve it for further review or reject it. If approved for further review, the Whales shall determine the effect that the implementation of the change will have on the Specifications and other terms and conditions of the Agreement. If, despite diligent and good faith negotiations, the parties fail to agree on the character or effect of a change to the Specifications, then at Client’s option (a) Whales will continue performing the services without changes to the Specifications, or (b) Whales, immediately upon written notice from Client, will cease performing the services and Client shall  compensate Whales for services performed or service that were in the works when written notice was given in  accordance with the terms of this Agreement and the affected SOW. 

Section 2.4. Whales transfers results of the services rendered to the Client via the Internet by sending the results by electronic mail or in another way; no matter what kind of method of delivery has been chosen, the delivery of results of works by the Agreement is not accompanied with the transfer of any hardware material.

Section 2.5. If applicable, all of the Whales deliverables will be subject to review and written acceptance by the Client based on the requirements of this Agreement, as well as the applicable SOW and Specifications. Once the product is delivered, Client shall have ten (10) calendar days to review the product  and either notify Whales of any changes needed to be made or accept the product as delivered (“Review Period”).  If no written correspondence is made from Client to Whales within the Review Period, the product shall be deemed accepted by Client.   

3. Ownership and Confidentiality

Section 3.1.  As used in this Agreement, the term “Deliverables” means all items in tangible and intangible form, including inventions, discoveries, works of authorship, programs, derivative works, source code, object code, ideas, techniques, methods, processes, documentation and materials, that Whales (including its employees, agents, or subcontractors) creates, prepares or delivers to Client, or otherwise produces, conceives, makes, proposes or develops, as a result of this Agreement and one or more SOW(s).

Ownership of the Deliverables shall transfer to the Client upon Whales’ receipt of full payment for the services provided, as outlined in the applicable SOW(s). Until full payment is received, Whales retains all rights, title, and interest in the Deliverables.

Section 3.2. Whales on its behalf and on behalf of its employees, agents and subcontractors, grants, releases and assigns to Client all right, title and interest, including ownership of all intellectual property rights, copyrights,  database rights and patents, and Moral Rights (defined below) in Deliverables. Moral Rights means any right to claim ownership of an invention, to object to or prevent the similar right, existing under the judicial or statutory law of any country in the world or under any treaty.  All Deliverables created by the Whales, its employees, agents or subcontractors will be “works made for hire” and the sole and exclusive property of the Client. Upon Client’s request and expense, Whales will provide Client with such assistance as Client may require, including whatever documents, information or materials are in Whales possession or available to Whales, in order to enable Client to protect its ownership rights, including copyrights and patents, in any Deliverables.  With respect to inventions for which Client wishes to seek patent protection, Whales agrees to assign its interest in each such invention to Client and to secure all necessary agreements with Whales employees, agents and subcontractors to ensure assignment of their interests in each such invention to Client as well. Whales at its expense will take all reasonable steps necessary to secure cooperation of its employees, agents and subcontractors with Client in filing such patent applications, including obtaining the signatures of inventors on all necessary legal documents.  To the extent a Deliverable includes or consists of software, Whales shall deliver to the Client the complete source code and object code.   

Section 3.3.  Confidentiality.  Whales agrees that the existence of this Agreement, including the nature of the services and the deliverables provided under all SOW issued hereunder, as well as all information and material (which includes all source and object code, if any) disclosed by Client to Whales, and all information and material that Whales develops under this Agreement in the context of performing any services and/or Deliverables hereunder, constitutes “Client Confidential Information.” Whales will not disclose Client Confidential Information to any third party person or entity, except to the extent required by a court or government agency order or rule (provided that Whales first gives Client written notice of such order or rule to enable Client to have the opportunity to quash or limit the scope of said order or rule).  Whales may disclose Client Confidential Information only to those of its employees, agents and subcontractors who possess a legitimate need to know for purposes of fulfilling obligations to Client under this Agreement and the applicable SOW(s), and may use Client Confidential Information only for such purposes.  Client Confidential Information does not include information that is or becomes publicly available without restriction to Consultant or any other person. All Client Confidential Information is and remains the property of Client, and upon written request, Whales will promptly return all Client Confidential Information, along with all copies and portions thereof, to Client.  Without waiving any other rights that Client may have and notwithstanding anything to the contrary herein, Client may immediately terminate with cause (with no right to cure) this Agreement upon written notice to Whales in the event that Whales uses or discloses Client Confidential Information other than as expressly permitted in this Section 3.3.

4. Representations And Warranties

Section 4.1.  Whales represents and warrants that Client’s use or possession of any Deliverables (including any pre-existing materials provided by Whales) will not constitute an infringement or violation of any patent, copyright, trade secret or other proprietary rights of any third party.  Whales represents and warrants that no third party or open source software will be included in any Deliverables without first informing Client of the particulars thereof and obtaining Client’s express written approval thereof.   

Section 4.2.  Whales warrants that it shall use all commercially reasonable efforts to perform the services as defined and described in the applicable SOW and in accordance with the terms of this Agreement.

Section 4.3.  Whales warrants that the services and Deliverables provided under this Agreement shall be performed in a good and workmanlike manner in accordance with generally established professional standards and practices for such services and in accordance with the best practices in Whales industry, and that such services and Deliverables will comply with all applicable laws, regulations, codes, and ordinances.

Section 4.4.  Whales represents and warrants that it has or will obtain appropriate agreements with its employees and others whose services it may require, sufficient to enable full compliance with all the provisions of this Agreement. In addition, the Whales warrants that it will cause its employees, agents and subcontractors to sign any documentation required for access to Client Confidential Information and other technology.

Section 4.5.  Whales further warrants that the Deliverables: (a) do not and will not contain any restrictive devices such as any key, node lock, time-out, time bomb, or other function, whether implemented by electronic, mechanical, or other means, which may restrict or otherwise impair the operation or use of Deliverables or any material embodying or comprising Deliverables; and (b) shall be free of viruses and other harmful code (including, without limitation, time-out features) which may interfere with the use of the Deliverable(s) regardless of whether Whales or its personnel purposefully placed such code in the Deliverable(s).  

5. Limitation Of Liability

Section 5.1. In no event shall Whales or its affiliates any any liability arising out of or related to this Agreement or its subject matter, whether under any theory of contract, negligence, intentional or unintentional tort, or any other legal data, loss of use, any claim or action of any third party, or any incidental, indirect, consequential, special or punitive damages, whether or not Whales or its affiliate may have anticipated or been advised of such damages. Client hereby agrees to defend, indemnify, and hold harmless Whales, its agents, officers, directors, and employees from and against any expense, claim , injury, suit, obligation, causes of action, liability, cost, damage, and allegations based upon, arising out of, or related to, the operations or business conducted by Client under or related to this Agreement or any SOW. 

6. Compensation

Section 6.1. In consideration for the services to be performed by Whales, Client agrees to pay Whales as specified in this section unless otherwise agreed on by the parties in the applicable SOW. 

Section 6.2. Whales will submit a Client monthly invoices for services rendered and invoices shall be due ten (10) days from the date on the invoice. If invoice payment is not received within five (5) days of its due date, Customer shall pay interest at a rate of 1.5% per month on all overdue balances. 

Section 6.2.3. Fees for services shall be invoiced and paid in USD. 

Section 6.3. Bank fees for wire transfer of payment shall be paid by both sides in accordance with their banking agreements.

Section 6.4. Client’s obligations are considered fulfilled from the moment the full amount of the fee specified in the invoices in accordance with the services rendered is credited to the Whales bank account.

Section 6.5. Client has the right to pay for the services through full or partial prepayment either.

7. Obligations of Whales

Section 7.1. Whales agrees that the above described services will be performed on the Whales own premises or on the premises of Client. 

Section 7.2. Compensation for Whales employees or contractors shall be paid by Whales.  

Section 7.3. Whales may assign, delegate, or subcontract any portion of its rights, duties or obligations under this Agreement, including an SOW (unless otherwise expressly agreed to in the applicable SOW), without the express prior written consent of Client.  

Section  7.4.  Whales hereby indemnifies and holds harmless Client and its affiliates, successors, assigns, shareholders, directors, officers, employees, attorneys and agents (collectively the “Indemnified Parties”) from and against any and all losses, damages, costs and expenses (including, without limitation, the Indemnified Parties’ reasonable attorneys’ fees and other costs of legal defense, whether direct or indirect) associated with any and all claims, demands, suits, proceedings or judgments relating to or resulting from the unauthorized use or disclosure of Client Confidential Information by Whales, its employees, or other parties to which Whales provided Confidential Information, whether in accordance with or in breach of this Agreement.

Section 7.5. Whales agrees not to incur any unauthorized expenses in conjunction with this project without prior written consent of the Client.

Section  7.6. Whales will claim no rights to the work conducted for the Client. All works, including code, diagrams and designs, are Deliverables and belong to the Client. 

Section 7.7.  Client authorizes Whales to have the right to publish and display any high-level information on the product produced under the terms of the Agreement in its portfolio privately or publicly and on the website, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the product produced under the terms of the Agreement in connection with such uses.

8. Obligations Of Client

Section 8.1.  The Client undertakes to pay in accordance with the terms of the Agreement for services rendered in accordance with the provisions of this Agreement.

Section 8.2. Client agrees to comply with all reasonable requests of Whales and provide access to all documents reasonably necessary to the performance of Whales duties under this agreement.

Section 8.3. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Client without the prior written consent of Whales.

Section 8.4. Client warrants that it is not working directly,  without Whales participation, or has an existing business relationship with any existing employees of the Whales or any former employees, contractors, or subcontractors in the last three (3) years from this Agreement.

Section 8.5. Client agrees not to solicit any current or former Whales employees, contractors, or subcontractors throughout the duration of this project contracted to be performed and for three  (3) years thereafter. Client agrees that any efforts to induce, directly or indirectly, any Whales employees, contractors, or subcontractors to quit employment or terminate the agreement with Whales or otherwise interfere with or disrupt the Whales relationship with its employees, contractors, or subcontractors either through solicitation, circumvention, enticement, hire or engage to hire shall cause irreparable harm to the Whales entitling it to Injunctive Relief.

Section 8.6. In case of breaking Sections 7.03 and 7.04 by Client, Client acknowledges that Whales shall suffer adverse impact on its business and that the resulting damages may not be susceptible to precise determination. Therefore, in addition to an Injunctive Relief, Client agrees that it shall owe the Whales the compensation in the amount of one annual salary of the employee, or an annual compensation of the contractor, or subcontractor. 

9. Termination Of Agreement

Section 9.1. Unless otherwise terminated as provided herein, this agreement shall continue until termination in writing by Client or Whales .

Section 9.2. Notwithstanding any other provision of this agreement, either Client or the Whales may terminate this agreement at any time by giving  thirty (30) days prior written notice to the other.

Section 9.3. This Agreement shall terminate automatically on the occurrence of any of the following events: Bankruptcy or insolvency of either party, Sale of the business of either party, or  the refusal or inability of Whales to perform any of the obligations herein under this Agreement.

Section 9.4. Neither Party will be liable to the other Party for failure to perform any of its obligations under this Agreement to the extent such performance is hindered, delayed or prevented by Force Majeure (except for failure to make payments hereunder). A Party which is unable, in whole or in part, to carry out its obligations under this Agreement due to Force Majeure must provide notice to the other Party. Initial notice may be given orally; however, written notification with reasonably full particulars of the event or occurrence is required as soon as reasonably possible. A Party claiming Force Majeure will diligently use all reasonable efforts to remove the cause, condition, event or circumstance of such Force Majeure, will promptly give written notice to the other Party of the termination of such Force Majeure, and will resume performance of any suspended obligation as soon as reasonably possible after termination of such Force Majeure. For purposes of this Agreement, “Force Majeure” will mean fire, floods, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the other party. 

Section 9.5. Should Client fail to pay Whales all or any part of the compensation set forth in this agreement on the date due, Whales , at Whales option, may terminate this Agreement if the failure is not remedied by Client within thirty (30) days from the date payment is due.

10. General Provisions

Section 10.1. Any notices to be given hereunder by any party to another party may be effected either by email or  by mail, registered or certified, postage prepaid with return receipt requested, or email. Mailed notices shall be addressed to the parties at the address by written notice in accordance with this paragraph. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraph of this Agreement, but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt; and mailed notices must be sent by a recognized overnight international courier service, and will be deemed communicated three days’ after  mailing.

Section 10.2. This Agreement supersedes any and all agreements, either oral or written, among the parties hereto with respect to the rendering of services by Whales for Client and contains all of the covenants and agreements among the parties with respect to the rendering of such services in any manner whatsoever. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this agreement will be effective only if it is in writing signed by the party to be charged.

Section 10.3. If any provision in this agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

Section 10.4   This Agreement shall be governed by and construed solely in accordance with the internal laws of the State of Florida, in Pinellas County (without regard to principles of conflicts of law). The parties agree that any dispute arising under this Agreement shall be subject to the exclusive jurisdiction of state and/or federal courts located in Florida.

Section 10.5. Jury Trial Waiver. The parties acknowledge that the right to trial by jury is a constitutional right, but that right may be waived. The parties each knowingly and voluntarily waive all rights to a trial by jury of all disputes arising out of or in relation to this agreement or any other agreement between the parties executed in connection with this Agreement 

Section 10.6  Modification and Waiver.  This Agreement may not be modified and none of its terms may be waived, except in writing and signed by authorized representatives of both parties.  To the extent that any term in any document, other than a writing signed by both parties that expressly purports to amend this Agreement, is contrary to, or conflicts with this Agreement, the terms of this Agreement shall control.   A waiver by a party of any default shall not be deemed a waiver of a prior or subsequent default of the same or other provisions of this Agreement.  The failure of a party to enforce, or the delay by a party in enforcing, any of its rights shall not be deemed a continuing waiver or a modification of this Agreement.

Section 10.7  Relationship.  It is expressly agreed that the parties intend by this Agreement to establish between themselves the relationship of independent contractors.  It is further agreed that a party has no authority to create or assume in the other party’s name or on behalf of the other party, any obligation, express or implied, or to act or purport to act as agent or representative on behalf of the other party for any purpose whatsoever.  Neither Client nor Whales is the employer, employee, agent, partner, or co-venturer of or with the other, each being independent.

In WITNESS WHEREOF, the parties hereto have executed this Agreement in two identical copies.

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