Master Services Agreement
This Master Services Agreement (this “Agreement”) is made this day of ____________________ by and between Freefall LLC (“Freefall”), with offices located at 55 Crispell Lane, New Paltz, NY 12561, and ________________________________________________________ (“Client”), with offices located at ____________________________________________________________________________________.
The “Application” shall mean Freefall’s SkydiVR virtual reality skydiving application.
The “Client Equipment” shall mean the personal computer, virtual reality goggles, mobile phone, virtual reality controller, and/or other equipment owned by Client, or otherwise acquired by Client from a third party.
The “Documentation” shall mean specifications, technical instructions, or other documentation related to the Application provided to Client by Freefall, including but not limited to the End User Agreements.
The “Freefall Equipment” shall mean the personal computer, virtual reality goggles, mobile phone, virtual reality controller, and/or other equipment provided to Client by Freefall pursuant to an SOW attached hereto.
The “Premises” shall have the meaning set forth in an SOW attached hereto.
The “Services” shall mean provision of access to the Application and any additional services set forth in an SOW hereto, if any.
An “SOW” or “SOWs” shall mean one or more Statements of Work that are attached hereto and executed between the parties during the term of this Agreement.
The “Usage Data” shall mean all information collected by Freefall and/or the Application related to the use of the Application, including but not limited to the number of virtual jumps completed, jump success rate, and survey responses.
A “User” shall mean a person who accesses or otherwise uses the Application on the Premises.
Services. Freefall agrees to provide to Client the Services described in this Agreement and any attached SOW(s), which fully-executed SOW(s) shall be deemed part of this Agreement, during the Term (as hereinafter defined). The Application provided by Freefall to Client shall be preprogrammed for use at the drop zone(s) specified by Client. Client shall ensure that an adequately trained representative of Client observes each User for the full duration of each User’s interaction with the Application, and make the End User Agreements available to each User prior to such User accessing the Application. Freefall shall provide limited support to Client during the Term. Client may send detailed a summary of a problem with the Application or Freefall Equipment to email@example.com, and Freefall shall use commercially reasonable efforts to respond within twenty-four (24) business hours.
Invoicing and Payment. Fees and payment terms for the Services, if any, shall be set forth in one or more SOWs. If fees are based on the number of jumps by Users, the Usage Data and Freefall’s sole interpretation thereof shall be final for purposes of calculating the amount owed by Client. All payments shall be made in U.S. dollars by electronic funds transfer, check or wire transfer, payable to Freefall LLC at the address set forth above within thirty (30) days of the invoice date, unless otherwise set forth in an SOW attached hereto. Any unpaid amounts after the due date of any invoice issued to Client by Freefall shall accrue interest at a rate of one and one-third percent (1.3%) per month until paid in full, and Client shall be responsible for all collection costs, including but not limited to collection agency and attorneys’ fees, incurred by Freefall in its efforts to collect such amounts. Client is responsible for paying all taxes applicable to receipt of the Services (including but not limited to any income and Value-Added Taxes), other than on the net income of Freefall. Payments hereunder shall be made without deduction for withholding taxes.
Limited Licenses. Freefall hereby grants the Client, during the Term, a non-exclusive, non-transferable, revocable, limited license to use the Application and Documentation, solely for the purposes as set forth in this Agreement and the attached SOW(s). Client shall not, and shall not authorize or encourage any third party to:
sell, copy, transfer, sublicense, reverse engineer, decompile, encumber, modify, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify, or attempt to derive the source code of, the Application or any portion thereof;
create or attempt to create a substitute or similar service or product through use of or access to the Application or proprietary information related thereto;
edit or modify any Application content, or remove, obscure or minimize any Application content in any way;
violate or attempt to violate the security of the Application (e.g., accessing data, servers, accounts, databases, etc., which Client is not authorized to access);
remove, obscure, or alter Freefall’s copyright notice, trademarks, logos, or other proprietary rights or any other notices affixed to or contained within the Application;
use the Application or Freefall Equipment to transmit, distribute or store material that is inappropriate, as reasonably determined by Freefall, or material that is illegal, defamatory, libelous, indecent, obscene, or pornographic; or
use the Application or Freefall Equipment to transmit, distribute or store material that contains a virus, worm, Trojan horse, or other component harmful to the Application, Freefall Equipment, or any other network or equipment.
Client acknowledges that any attempted participation in or violation of any of the foregoing is a material breach of this Agreement and that Freefall reserves the right to pursue any and all applicable legal and equitable remedies against Client, including an immediate termination of this Agreement, and the pursuit of all available civil or criminal remedies. All rights not expressly granted hereunder are reserved by Freefall, and Client agrees that it does not acquire any rights, express or implied, therein, other than the licenses expressly set forth in this Agreement.
Term and Termination. This Agreement commences on the Effective Date and continues until the termination or expiration of all SOW Terms specified in all SOWs (the “Term”). If either party materially breaches this Agreement and fails to cure such material breach within fourteen (14) days of receiving prior written notice thereof from the non-breaching party setting forth the nature of the breach with specificity, the non-breaching party may terminate this Agreement immediately upon written notice.
Usage Data. Client acknowledges and agrees that (i) Freefall shall have the right to collect Usage Data, (ii) Freefall shall retain all rights in such Usage Data, and (iii) Freefall shall have the right to use and disclose the Usage Data for any purpose. Client shall use best efforts to at all times during the Term keep the Freefall Equipment and/or Client Equipment where the Application is installed (iv) turned on and connected to the Internet, for the purpose of Freefall’s collection of Usage Data and installation of Application and other software updates, and (v) free of any viruses, worms, Trojan horses, or other harmful software that may prevent Users from properly using the Application or Freefall from collecting Usage Data. Freefall shall have no liability for any loss or damage arising from Client’s failure to comply with these requirements.
Ownership; Feedback. Freefall owns, and shall continue to own, all right, title and interest in and to the Application, Documentation, and Usage Data, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights therein, including any and all improvements, enhancements or modifications thereto. To the extent Client provides Freefall with any ideas or other suggestions, whether or not patentable that directly concern enhancements, improvements or other changes to the Application, the Documentation, Usage Data, or the Services (such ideas or suggestions, “Feedback”), Freefall shall have all right, title and interest in and to such Feedback, and Client hereby assigns and agrees to assign to Freefall all right, title and interest in and to such Feedback. Client agrees that Freefall may use Client’s name and logo in Freefall’s presentations, marketing materials, customer lists, financial reports and website listings of companies who use the Application, including in connection with the Usage Data collected hereunder.
Representations and Warranties. Each party represents and warrants to the other that: (i) it has the full right, power, and authority to enter into this Agreement and to perform in accordance with this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to. Client further represents and warrants to Freefall that it has all necessary rights and licenses to provide the Application to the Users, including but not limited to any arcade or gaming licenses required by applicable law.
Disclaimer of Warranties. FREEFALL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION, DOCUMENTATION, FREEFALL EQUIPMENT, SERVICES, OR OTHER PRODUCTS OR SERVICES MADE AVAILABLE BY FREEFALL, ALL OF WHICH ARE PROVIDED "AS IS", INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED BY FREEFALL. FREEFALL DOES NOT GUARANTEE THAT THE APPLICATION, DOCUMENTATION, FREEFALL EQUIPMENT, SERVICES, OR OTHER PRODUCTS OR SERVICES MADE AVAILABLE BY FREEFALL WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR FREE OF VIRUSES OR OTHER HARMFUL MATERIALS. PROVISION OF THE APPLICATION TO USERS AND ANY USE OF THE DOCUMENTATION, FREEFALL EQUIPMENT, OR CLIENT EQUIPMENT, INCLUDING BUT NOT LIMITED TO USING THE FREEFALL EQUIPMENT OR CLIENT EQUIPMENT FOR ANY USE OTHER THAN USE OF THE APPLICATION, IS AT CLIENT’S OWN DISCRETION AND RISK. CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO FREEFALL EQUIPMENT AND/OR CLIENT EQUIPMENT RESULTING FROM ANY USE THEREOF BY CLIENT AND/OR USERS. FREEFALL RESERVES THE RIGHT TO DISCONTINUE FEATURES OR ALTER THE CONTENT OR STRUCTURE OF THE APPLICATION, DOCUMENTATION, FREEFALL EQUIPMENT, OR OTHER PRODUCTS OR SERVICES MADE AVAILABLE BY FREEFALL AT ANY TIME.
Limitations on Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL FREEFALL OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES OR AGENTS BE LIABLE TO CLIENT, USERS, OR ANY OTHER THIRD PARTIES FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, DAMAGES FROM LOSS OF USE OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY EMOTIONAL DISTRESS, BODILY INJURY, OR PROPERTY DAMAGE INCURRED WHILE USING THE APPLICATION. IN NO EVENT SHALL FREEFALL’S TOTAL CUMULATIVE LIABILITY, FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE AMOUNTS ACTUALLY PAID TO FREEFALL IN THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM, IF ANY. FREEFALL SHALL HAVE NO RESPONSIBILITY FOR FAILURES DUE IN WHOLE OR IN PART TO ACTS OR OMISSIONS OF CLIENT OR USERS, OR DUE TO FAILURES OF OR DEFECTS IN FREEFALL EQUIPMENT OR CLIENT EQUIPMENT.
Client Indemnification. Client hereby agrees to defend, settle and pay damages on behalf of Freefall and its members, managers, agents, affiliates and employees associated with any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out any actual or threatened claim, suit, action or proceeding arising out of (i) a material breach by Client of any term, condition, representation or warranty under this Agreement; or (ii) Client's acts or omissions in using the Application, Documentation, Freefall Equipment, or the Services.
Freefall Indemnification. Freefall hereby agrees to defend, settle and pay damages on behalf of Client and its officers, directors, agents, affiliates and employees associated with any and all Losses that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a material breach by Freefall of any term, condition, representation or warranty under this Agreement.
Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
Force Majeure. Neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform its obligations hereunder if such delay or failure is due to natural disaster, strike, government sanctioned embargo, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, inoperability of telecommunications systems or the Internet, or any other circumstance beyond the reasonable control of such party (a “Force Majeure Event”).
Independent Contractor. The relationship between Client and Freefall shall be that of an independent contractor. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship. Client has no authority, express or implied, to undertake any obligations or assume any liabilities on behalf of Freefall.
Miscellaneous. Client shall not assign or otherwise transfer this Agreement without the prior written consent of Freefall. Assignments and transfers in violation of this requirement shall be void ab initio. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, and the state and federal courts located in New York County, New York, shall have sole and exclusive jurisdiction over any disputes arising from or related to this Agreement. Client agrees to accept service of process by mail, and hereby waives any jurisdictional or venue defenses otherwise available to Client. If any claim, action, proceeding, mediation or arbitration is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. This Agreement may only be modified, amended or supplemented by a written document signed by authorized signatories of both parties. Notices may be provided via e-mail, fax, or other written means and will be effective immediately. If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. Sections 3, 6, 7, 9, 10, 11, 13, and 14 shall survive the termination of this Agreement. The captions appearing in this Agreement are inserted only as a matter of convenience. This Agreement, as and if amended, any attached SOW(s), as and if amended, shall constitute the entire and only agreement between the parties regarding the subject matter hereof and shall supersede all previous communications, representations or agreements, whether written or oral between the parties relating to the Services provided hereunder. This Agreement may be executed in one or more counterparts, and counterparts may be exchanged by electronic transmission (including by email), each of which will be deemed an original, but all of which together constitute one and the same instrument.
SkydiVR Master Services Agreement
Statement of Work #1
This Statement of Work (“SOW”) is attached to and incorporated into the Master Services Agreement (the “MSA”) dated _________________________, between Freefall LLC (“Freefall”) and ___________________________________________________________________________ (“Client”). All terms not defined in this SOW shall have the definitions ascribed to them in the MSA. In the event of any conflict or inconsistency between the terms of this SOW and the MSA, the terms of this SOW shall govern.
Number of Licenses for Application: __________
Services to be Provided:
The use of the Application during the SOW Term.
Client shall maintain the following equipment lent to Client by Freefall Club in order to use the Application (the “Client Equipment”):
X51 desktop PC
Oculus Rift VR goggles
Kinect control interface
Term: The term of this SOW shall be _________________________________________________ (the “SOW Term”).
Fees and Payment Schedule.
For each virtual jump performed by a User, Client shall pay to Freefall _____ dollars ($__) (the “Jump Fee”). Client hereby authorizes Freefall to charge Client’s bank account or credit card in increments of one hundred dollars ($100), from which Freefall shall deduct the Jump Fee based on the number of jumps as determined solely by Freefall and the Usage Data. Upon such time as Client’s account with Freefall has an amount less than or equal to one Jump Fee, Freefall shall charge Client’s bank account or credit card another one hundred dollars ($100). Any amounts remaining in Client’s account with Freefall upon the termination of this SOW and/or the MSA shall be refunded to Client.
[charges for additional services]
Client agrees to allow the Client Equipment to be connected to the Internet (wifi is fine) throughout the SOW Term.
To maximize the enjoyment for Users, an attendant provided by Client will be need to ensure correct fitting of the goggles and use of the Application, along with receiving payment where appropriate.
Each time a User uses the Application for the first time, the User (or Client’s attendant on behalf of the User) shall complete an online survey. Freefall shall provide Client with the survey results upon Client’s request.
Upon Client’s request and for an additional fee, Freefall shall provide promotional materials to Client for display on the Premises, such as banners, postage, and other signage, to promote and advertise the Application.
ACCEPTED AND AGREED TO AS OF _____________, 20__: