Sierra Pacific Group, LLC. (Sierra Pacific Group), a California Limited Liability Corporation, agrees to provide “Services” as defined by the signed and approved quote (Proposal) for the individual, entity or company named in the Proposal (Client), and the Client hereby engages Sierra Pacific Group to perform the Services, subject to the terms and conditions set forth in the Proposal and this Master Services Agreement. This Master Services Agreement and the Proposal executed by Sierra Pacific Group and Client shall be referred to collectively as the “Agreement”.
- GENERAL. Sierra Pacific Group offers a variety of consulting, administrative and other Services. While each service has a specific scope of work, limitations and best practices, the following applies to all Service Agreements:
- The Service being provided under this Agreement is limited to the service described and specified in the Proposal (scope-of-work or scope). Requests that fall outside of the Proposal (out-of-scope) are subject to additional cost based on the estimated and/or actual number of hours to complete the out-of-scope request.
- Out-of-scope requests or service is defined as any action, work or consulting by Sierra Pacific Group that is not considered to be part of the overall Service defined in the Proposal. Should any scope-of-work or portion of a scope be considered ambiguous, Sierra Pacific Group reserves the right to make a final determination.
- All services include an onboarding or discovery period in which the Sierra Pacific Group team will be reviewing, documenting and preparing to perform the Services in this Agreement. This timeframe can vary depending on the size of the Client, complexity of the product, Client-specific needs and/or other factors. This onboarding/discovery period is essential to the success of our Services and takes a significant amount of time to perform properly. The Client acknowledges, understands and accepts that during this time, not all the Services available to them under this Agreement can be performed until after the onboarding/discovery period ends and is appropriate based on the Service and timelines to execute.
- Some of the Services provided by Sierra Pacific Group are time-based or require prerequisite completion of other tasks and/or changes. As such, the Client acknowledges, understands and accepts that not all requests can be performed at the time the request is submitted or even at the time the Client requests it to be completed. This is to ensure whatever Service that is performed by Sierra Pacific Group follows industry best practices, software requirements, regulatory requirements or outcome requirements.
- The price of this Agreement as outlined in the Proposal is based on the number of endpoints, software platform, number of users, Client description and estimated needs of the Client at the time of its execution. Fluctuations to the number of endpoints, users or other factors is expected and may not result in a price increase. However, Sierra Pacific Group reserves the right to audit, review or otherwise verify that the factors used to determine the price and adjust it accordingly with a thirty-day (30) written notice to the Client. The Client agrees to and authorizes the updated service fee for the remaining term of the Agreement.
- Clients may have the option to renew this agreement annually or based on the initial term period for an additional new term period at the discretion of Sierra Pacific Group. Agreement renewals may be subject to an overall service fee increase of 5% or more to cover increased costs, inflation or other economic or business factors.
- During the course of performing the services outlined in this Agreement, it is essential that both Sierra Pacific Group and the Client honor and attend scheduled meetings with one another. While not all our services require regular meetings, most are critical to ensuring the continued progress and success of Services being performed. As such, missed meetings can slow and even delay our Services and meeting the goals discussed for the Services provided. While unforeseen circumstances, illness or other factors are a fact of life, we ask that all of our Clients provided at least 12-hour notice to cancel or reschedule a meeting. Habitual or critical missed meetings without notice may result in a no-show or hour-deduction penalty at the discretion of Sierra Pacific Group.
- Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any attempted assignment in violation of this will be null and void. This Agreement shall be governed by the laws of the State of California, the United States and/or appropriate international treaties, without reference to conflict of laws principles. In any action relating to or arising out of the Agreement, each party irrevocably consents to the personal and exclusive jurisdiction and venue of the California state courts of Madera County (or, in the case of exclusive federal jurisdiction, the United States District Court for the Eastern District of California (Fresno)). This Master Services Agreement and the Proposal contain the entire agreement between the parties with respect to the subject matter hereof, and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. The invalidity or unenforceability of any provision of the Agreement, or any of its terms or provisions, will not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect. A failure to enforce any provision of the Agreement will not constitute a waiver thereof or of any other provision. The Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. Any notices required to be given under this agreement shall be deemed given upon the earlier of receipt of five (5) days after mailing by certified mail, return receipt requested, or hand delivery by messenger or express service, to the addresses stated on the first page of the Proposal, or to such other address as the either party may specify to the other in writing form time to time.
- Sierra Pacific Group reserves the right to amend, change, replace or alter this agreement, in any way, at its sole discretion with a 30-day notice to the Client.
- AGREEMENT SPECIFIC TERMS.
- RECURRING SERVICE INITIAL TERM PERIOD. The initial term and start date of this Agreement is indicated on the Proposal. During this initial term period, you agree to pay any and all fees indicated in this Agreement for the entirety of the initial term. If you terminate your agreement within this initial term period, you must pay the remaining balance of this Agreement within 30-days of termination, or if prepaid, no refund shall be issued for the remaining period of the term. After the initial term period ends, the Agreement will not automatically terminate, but will be converted to a month-to-month term at the then-current month-to-month rate.
- HOURLY “BLOCK TIME” AND “PROJECT” AGREEMENTS. Hourly “Block Time” and Hour-Based Project Agreements (Hourly Agreements) provide a fixed number of available hours for work to be performed at the request of the Client.
- HOURLY “BLOCK TIME”. This Services does not include project management or proactive communication about unused hours, and it is the responsibility of the Client to request specific work for available hours. Unless otherwise indicated on the Proposal, hourly “block time” agreements, in which a Client has paid for a specific amount of hours of work, must be used within six (6) months after the date of purchase. Any unused hours of work shall be forfeit and non-refundable.
- HOURLY “PROJECT”. An hour-based project Agreement includes the estimated number of hours to achieve a specific outcome as defined in the Proposal. The estimated number of hours is based on the Client’s description of the Service needed, estimated work-hours and staff, resource needs and other factors. While every effort is made to stay within the estimated number of hours, Sierra Pacific Group cannot guarantee that the actual number of hours required is less or more than the Proposal. As such, the Client acknowledges, understands and agrees to a pre-approved overage of up to 10% of the originally proposed hours. Any overage that exceeds 10% of the originally proposed hours would require a change order and approval with additional costs estimates to continue.
- FIXED FEE “PROJECT”. Fixed Fee Projects are Services that are defined by specific outcomes or goals (goal) with a projected or estimated timeline for the completion of those goals.
Under this Agreement, Sierra Pacific Group will perform all work required to meet the goal of the Service within the Scope defined by the Proposal. While a timeline is provided, that timeline is only an estimate and can be delayed or accelerated at any time. If such an event should occur, the Client is not entitled to a refund or credit for accelerated completion nor responsible for additional payment of delayed completion.
Fixed fee projects cannot be terminated, cancelled, or stopped. The Client understands and agrees they are responsible for the entire project fee.
Out-of-scope or special requests not considered part of the Service defined in the Proposal is subject to additional cost.
Fixed fee projects are billed in equal increments of the total project fee in advance and is due in full on the start of each phase of the project.
- FEE SCHEDULE. The following fee schedule reflects Sierra Pacific Group’s hourly rate for services and are subject to change without notice. The current hourly rates are available upon request or by visiting our website.
*Rates are in United States Dollars.
- TRAVEL EXPENSES. Sierra Pacific Group shall be reimbursed for travel and related expenses as follows:
- Meals and Incidental Expenses. Client shall reimburse Sierra Pacific Group a daily per diem rate of $100 meals and incidental expenses incurred which are ordinary and necessary to accomplish the services.
- Mileage and Transportation Expenses. Client shall reimburse Sierra Pacific Group for transportation costs other than for local transportation less than $75. Client shall reimburse Sierra Pacific Group for fares, car rental, private car mileage at the rate specified by the United States Internal Revenue Service standard mileage rate for business travel, parking fees, tolls, etc., provided the most economical mode of transportation and the most usually traveled route are utilized. Client shall also reimburse Sierra Pacific Group for air travel, provided it is by commercial airline coach class, or intermediate, one class or similar reduced fare accommodations. The use of first class, premium, or higher cost services is not authorized under the Agreement, unless approved in advance by Client. Any such authorization for the use of higher cost services as identified above must be obtained prior to the incident of travel.
- Lodging Expenses. Client will pay the cost of single-occupancy lodging in conveniently located moderate range hotel for the actual nights occupied during the course of business travel.
- INVOICING AND PAYMENTS. All invoices are in United States Dollars at the then-current currency exchange rate at the time of payment. Payment for invoices is due in full by the due date indicated on the invoice. Sierra Pacific Group accepts credit card (Visa, MasterCard or American Express), ACH and paper check methods of payment. Please note that Clients may be subject to a service fee for all credit card transactions equal to 3% of the transaction value. Some international Clients may be required to use direct wire-transfer payments, in which case each Party is responsible for any bank, transaction or governmental fees assessed to them by their financial institution or governmental agency.
- All Clients are required to provide a valid and up-to-date credit card (Visa, MasterCard or American Express) or valid ACH payment information (US ONLY) regardless of their intended monthly payment method.
- The Client authorizes Sierra Pacific Group and/or the payment processor of Sierra Pacific Group choosing to charge the payment method on-file for the total amount due on your invoice(s).
- The Client is responsible for providing complete and accurate billing and contact information to Sierra Pacific Group and notifying Sierra Pacific Group of any changes to such information.
- Late or unpaid invoices are subject to a monthly 1.5% finance charge until the balance is paid in full.
- Bounced, reversed or charge back payments are subject to a $50 service fee.
- EVENTS OF DEFAULT; REMEDIES. The following events shall constitute events of default by Client under the Agreement (hereinafter, each an “Event of Default”):
- Client’s failure to make any payment on the date owed
- Client’s breach or failure to comply with any agreement, covenant, condition, representation, requirement or provision of the Agreement
- Client’s inability to pay its debts generally as they come due
- Client is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of creditors, or enters into an agreement for the composition, extension or readjustment of all or substantially all of its obligations.
Upon the occurrence of an Event of Default, all unpaid installments shall become immediately due and payable.
Unpaid balances that are 30 or more days past due under this agreement, may, without limiting our rights and additional remedies, accelerate your unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend Sierra Pacific Group services for this and any other active Agreement for this Client regardless of payment status until such amounts are paid in full.
Unpaid balances that are 90 or more days past due under this agreement may result in additional action by Sierra Pacific Group to remedy the outstanding balance(s), which includes, but is not limited too nor limiting additional actions:
In such an event, the Client assumes and is responsible for all unpaid balances, interest or finance charges, fees, attorney’s fees, court fees and any other charges incurred by Sierra Pacific Group to recover or remedy the outstanding balance(s).
- Referring your unpaid balance and Agreement to a 3rd party collections agency.
- Report negative remarks on the Client’s credit history.
- Seek remedy by lawsuit or other civil judicial process.
- Other appropriate, reasonable and legal remedies to recover monies owed to Sierra Pacific Group.
- SYSTEM AND SOFTWARE ACCESS. The Client is solely responsible for maintaining active login and system access for the Sierra Pacific Group team to fulfill the terms of this Agreement. Should our team not be able to access your system(s), our service level agreement (SLA) response times will be suspended until the system access is resolved. Additionally, a lack of access to your system(s) required to perform the services provided in this Agreement does not constitute a valid form of termination, credit for unused services or other renumeration.
- SOFTWARE WARRANTY. Sierra Pacific Group generally provides services related to specific software platforms or programs developed by and maintained by third party vendors. As such, Sierra Pacific Group in no way warrants, guarantees or promises the related software application is free of deficiencies, bugs, or other missing functionality. Every effort will be made to provide a remedy or “work-around” to any deficiency with the application(s), however, Sierra Pacific Group will not be responsible if the software is unable to accommodate a specific feature or request.
- CONSENT TO CONTACT VENDOR. During the course of performing the Services outlined in this Agreement, Sierra Pacific Group may be required to contact additional support or sales provided by the software manufacturer (vendor) on the Client’s behalf. The Client agrees and consents to Sierra Pacific Group contacting the vendor on their behalf, open a “service ticket” and follow-up with the vendor staff.
- HOSTED RESOURCES AND SERVICES. Some of the Services provided by Sierra Pacific Group use internet-hosted resources and services that are included at no additional cost while this Agreement is active. Resources include, but not limited to, computer programming code, downloadable files, web-based services, executable assets and more.
- Sierra Pacific Group takes all appropriate, reasonable and industry-standard security and safety precautions to protect the integrity of the hosted resources. However, as with any internet-hosted resource and service, there are inherent, negligent and unforeseeable risks that may result in loss of business, revenue, reputation and/or other detrimental impacts. The Client acknowledges, understands and agrees to this risk and will not hold Sierra Pacific Group, it’s owners, employees, assigns, agents, contractors and/or associates liable should such an event occur.
- Upon termination of this Agreement, access to these services will be disrupted. Client’s may purchase access to these resources at a reasonable monthly cost.
- TERMINATION OF AGREEMENT. The following terms apply to all Agreements:
- This agreement may be terminated by the Client with a 30-day written notice to Sierra Pacific Group. The effective date of termination will be 30-days after receipt of the written request. The Client is responsible for all fees and charges up to the effective date of the termination, total payments due under the term of the Agreement if the Agreement is within the initial term period (see §II.a), and/or the total fixed fee project value.
- Sierra Pacific Group reserves the right to terminate or suspend this agreement at any time with a 30-day written notice or immediately for Clients that are thirty days or more in arrears. If this agreement is terminated under these conditions, you are responsible for all unpaid balances and remainder of the agreement terms.
- Non-payment and non-use of the services provided by this Agreement does not constitute a valid method of terminating this Agreement.
- CONFIDENTIALITY AGREEMENT. In connection with certain business dealings or potential business dealings between Sierra Pacific Group and the Client (Parties), each Party has requested or may request access to certain proprietary and confidential information of the other Party. Any Party disclosing any Confidential Information to the other Party shall be referred to herein as a “Discloser” and any Party receiving any Confidential Information from a Discloser directly or arranging for such receipt by a Recipient Beneficiary (as defined in Section 1(b) herein) shall be referred to herein as a “Recipient”.
- Confidential Information. Each Party is the owner of certain confidential and proprietary information (the “Confidential Information”) including, without limitation, any and all: (a) data, know-how, processes, designs, inventions and ideas, past, current, and planned research and development, market studies, business plans, customer lists, current and anticipated customer requirements, cost structures, price lists and structures, computer software and programs (including object code, compiled code and source code), data base technologies, systems, structures and architectures (and related processes, formulae, compositions, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information), and any other proprietary or confidential information of such Party, however documented, whether or not such information is a trade secret within the meaning of applicable law; and (b) information concerning the business and affairs of such Party (including, without limitation, historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, and the names and backgrounds of key personnel), however documented, that has been or may hereafter be provided or shown to a Recipient or to any of such Recipient’s consultants, advisors, or other representatives, including legal counsel, accountants and financial advisors (the foregoing other parties being hereinafter referred to individually as a “Recipient Beneficiary” or collectively as the “Recipient’s Beneficiaries”) or is otherwise obtained by a Recipient or any Recipient Beneficiary from a review of a Discloser’s documents or properties or through discussions with a Discloser, irrespective of the form of the communication, including all notes, analyses, compilations, studies, summaries, and other material prepared by a Recipient or any Recipient Beneficiary containing or based, in whole or in part, on any information included in the foregoing.
- Exceptions. Confidential Information shall not include any information that (a) is or subsequently becomes available to the public without a breach of this Agreement by such Recipient or a Recipient Beneficiary; (b) became known to such Recipient prior to a Discloser’s disclosure of such information; (c) became known to such Recipient from a third party having the right to disclose such information without any restrictions of confidentiality; or (d) is or has been independently developed by a Recipient without use of a Discloser’s Confidential Information.
- Disclosure of Confidential Information; Non-Waiver of Rights. Each Party agrees to allow access to such portion of such Party’s Confidential Information as such Party deems necessary or appropriate in such Party’s sole discretion. A Discloser makes no representations or warranties, expressor implied, concerning the completeness or accuracy of any Confidential Information disclosed to a Recipient or any Recipient Beneficiary, except any representations and warranties that may be made in a written definitive agreement executed by the Parties outside of this Agreement. To the extent that any Confidential Information may include material subject to the attorney-client privilege, Discloser will not be deemed to have waived its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Confidential Information to a Recipient or any Recipient Beneficiary, regardless of whether Discloser has asserted or is or maybe entitled to assert such protections or privileges.
- Restricted Use of Confidential Information. Each Party agrees that the Confidential Information of a Discloser (a) will be kept confidential by a Recipient and by a Recipient’s Beneficiaries; and (b) without limiting the foregoing, will not be used by a Recipient or any Recipient Beneficiary or disclosed by a Recipient or any Recipient Beneficiary to any person without the prior written consent of a Discloser. A Recipient may disclose Confidential Information to only those of Recipient’s Beneficiaries who (i) require such information for the purpose of evaluating or acting on any legitimate business purpose involving the Discloser; and (ii) are informed by such Recipient of the confidential nature of the Discloser’s Confidential Information and the obligations of this Agreement. A Recipient and a Recipient’s Beneficiaries will not use any of a Discloser’s Confidential Information for any reason or purpose other than to evaluate or act on any business purpose involving the Discloser. Each Recipient agrees to be responsible for enforcing the terms of this Agreement as to all of Recipient’s Beneficiaries and for taking such action necessary or appropriate to cause them to comply with the terms and conditions of this Agreement. Each Recipient agrees to be liable for any breach of this Agreement by any Recipient Beneficiary. If a Recipient or any Recipient Beneficiary is requested or is legally compelled by any court, tribunal or other governmental or quasi-governmental body to make any disclosure that is prohibited by this Agreement, such Recipient will provide Discloser with prompt written notice of such request so that Discloser may seek a protective order or other appropriate remedy.
- Return or Destruction of Confidential Information. At any time upon a Discloser’s written request, a Recipient will promptly destroy or deliver to the Discloser all documents or other materials furnished by the Discloser to the Recipient or any Recipient Beneficiary constituting Confidential Information of the Discloser, together with all copies and summaries thereof in the possession or under the control of the Recipient or any Recipient Beneficiary. Any such destruction pursuant to the foregoing must be confirmed by the Recipient in writing to the Discloser.
- Enforcement; Judicial Modification. Each Party acknowledges that the restrictions described in this Agreement are designed to protect certain significant rights of the other Party, such rights being intangible in nature and incapable of valuation in monetary terms. A Party’s violation of this Agreement will result in irreparable injury to the other Party for which the other Party cannot adequately be compensated in an action at law. In the event of a Party’s actual or threatened breach of this Agreement, in addition to any other remedies allowed by law, the other Party shall be entitled to seek injunctive relief, including the entry of a temporary restraining order, preliminary injunction and permanent injunction in accordance with the laws of the State of California and/or United States. If the scope and enforceability of any provision of this Agreement is in any way disputed, a court of competent jurisdiction may modify and enforce such provision to the extent that the court believes that the provision is reasonable under the circumstances existing at that time.
- Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States, without regard to conflicts of law principles. Any disputes arising from or related to this Agreement shall be resolved in the circuit courts located in the county of Sierra Pacific Group’s then-current principal place of business. Any failure on the part of any Party to comply with any of its obligations, agreements or conditions hereunder may be waived in writing by the other Party. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, nor shall any waiver constitute a continuing waiver. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns. This Agreement may not be assigned directly, indirectly or by operation of law by a Party without the prior written consent of the other Party; provided that this Agreement may be assigned by a Party to any successor to such Party’s business by merger, consolidation, sale of equity, sale of assets or similar transaction without the consent of the other Party. This Agreement constitutes the entire agreement between the Parties and supersedes any prior agreements, representations, warranties, or communications, whether oral or written, between the Parties relating to the subject matter herein. Neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated except by an agreement in writing signed by the Party against whom the enforcement of such change, waiver, discharge or termination is sought. Should any provision of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining provision(s), which shall continue in full force and effect as if this Agreement had been executed with the invalid provision(s) eliminated therefrom. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. Facsimile signatures shall be treated the same as an original signature for this Agreement.
- Maintenance of Confidentiality. Each party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information, and shall promptly notify the disclosing party of any misuse or misappropriation of Confidential Information of which it becomes aware. Each party shall disclose Confidential Information only to those officers, directors, employees and contractors who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship, and such party shall remain responsible for compliance with the terms of this Agreement by its officers, directors, employees and contractors.
- Non-use and Non-disclosure. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
- No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
- NON-SOLICITATION. Client and Sierra Pacific Group, (a "Restricted Party") acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of the other party's employees with whom the Restricted Party worked to discontinue or reduce the scope of their business relationship with the other party, or recruit, solicit or otherwise influence any employee of the other party with whom the Restricted Party worked to discontinue his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages an amount equal to one hundred thousand dollars ($100,000) immediately or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party's employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not any the obligation, to terminate this Agreement For Cause.
- LIMITED LIABILITY; AGREEMENT JURISDICTION. Upon its execution, this agreement shall be in effect until this agreement is terminated. This Agreement will be governed and interpreted under the laws of the State of California, United States of America and/or applicable international treaties, without regard to its conflict of laws provisions.
- Any action brought in connection with this Agreement shall be filed within one year of the date of the alleged injury, regardless of any statute of limitations, and filed in the Superior Court of the State of California, County of Madera or U.S. District Court for the State of California, Eastern District, 9th Judicial District.
- No services or performance guarantees are included in the fees set forth in the Proposal. All services are performed on a best effort basis. Sierra Pacific Group shall not be held responsible or liable for guarantees of prices, performance, or time frames resulting from Client’s deficiencies. The sole and exclusive remedy for any breach of any provision of the Agreement and all other performance by Sierra Pacific Group under or pursuant to the Agreement shall be limited to the re-performance of any service provided by Sierra Pacific Group and shall in no event include any incidental or consequential damages.