Professional services

Master Service Agreement

This Master Service Agreement (this “Agreement”), dated as of the Effective Date identified below, is entered into by and between Minor Tweak Inc., having its principal place of business at 11 Ventada St., Rancho Mission Viejo, CA 92694 (the “Company”), and the Client named below. Company and Client may be referred to individually as a “Party” and collectively as the “Parties.” In consideration of the mutual covenants and promises made by the Parties, Company and Client agree as follows:

1. Confidentiality

1.1 “Confidential Information” means any non-public, proprietary information of a Party, whether or not marked as confidential and whether in tangible or intangible form, including trade secrets, know-how, designs, data, processes, methods, pricing, customer and supplier identities, financial information, call flows, lists, scripts, credentials, platform configuration, and other non-public business or technical information, and including the fact that the Parties have entered into this Agreement or that Services have been provided.

1.2 Confidential Information does not include information that (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party; (b) was rightfully in the Receiving Party’s possession on a non-confidential basis before receipt from the Disclosing Party, as shown by contemporaneous written records; (c) is received from a third party on a non-confidential basis, unless the Receiving Party knows the third party is bound by a confidentiality obligation with respect to that information; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by contemporaneous written records.

1.3 During the term of this Agreement the Parties may exchange Confidential Information to perform their duties. The Party disclosing Confidential Information is the “Disclosing Party,” and the Party receiving it is the “Receiving Party.”

1.4 The Receiving Party will protect Confidential Information using at least reasonable care, and no less care than it uses to protect its own similar information. Disclosure is limited to directors, officers, employees, affiliates, and subcontractors who have a need to know it to perform this Agreement and who are bound by confidentiality obligations no less protective than these. The Receiving Party will use Confidential Information only to perform this Agreement and is responsible for its representatives.

1.5 Confidential Information may be disclosed as required by law or legal process, provided the Receiving Party gives prior notice if legally allowed so the Disclosing Party may seek a protective order. Information so disclosed remains Confidential Information for all other purposes.

1.6 On written request, the Receiving Party will return or destroy Confidential Information, except it may keep one copy as required by law or ordinary recordkeeping.

1.7 The obligations in this Section 1 last for three (3) years after this Agreement ends, and indefinitely for trade secrets.

1.8 Company may list Client’s name and a one-line description of the work as a professional reference unless Client objects in writing.

2. Performance of Services

2.1 Client may obtain services by executing a Statement of Work (“SOW”) that is subject to this Agreement. Company will perform the services described in each signed SOW (the “Services”).

2.2 Services are Five9 and related contact-center professional services. Typical work, as specified in the applicable SOW, includes new Five9 domain setup (users, skills, queues, IVR, campaigns, lists, dispositions, hours of operation); inbound and outbound dialer configuration and tuning; reporting, dashboards, and operational runbooks; and ongoing administration, troubleshooting, and change requests.

2.3 Company is an independent contractor. This Agreement does not create employment, partnership, joint venture, or agency. Five9, Inc. is not a party to this Agreement. Company is not a Five9 reseller and does not sell Five9 licenses.

2.4 Client is and remains the Five9 customer of record. Client is solely responsible for Five9 license, usage, and carrier fees, and for all amounts payable to Five9 or any carrier.

2.5 If any term of an SOW conflicts with this Agreement, the SOW controls for that engagement only.

2.6 Client will (a) name one primary contact with authority to approve configuration changes; (b) provide timely administrator access to Five9 and connected systems; and (c) provide call flows, hours, lists, DNC/opt-out sources, and compliance rules reasonably required for the Services.

2.7 Client owns, and is solely responsible for, TCPA, DNC, consent, recording, and other communications-law compliance. Company configures the platform to Client’s instructions. Company does not provide legal advice.

3. Placement of Orders

3.1 All orders will be placed using an SOW signed by both Parties.

3.2 Changes to Services under an SOW must be agreed in writing. Email is sufficient. Change requests should be reasonable in light of stated timelines.

3.3 Any change to price must be agreed in writing by both Parties before the additional or changed Services are performed.

4. Price and Terms of Payment

4.1 Client will pay Company for Services as stated in the applicable SOW. Unless an SOW states otherwise, Services are time and materials, billed in fifteen (15) minute increments, at the rate stated in that SOW.

4.2 On new domains, Company first performs a paid discovery of typically two (2) hours. After discovery, Company will send a written hour estimate. That estimate is not a cap unless the SOW says so. Client may add a not-to-exceed amount in the SOW. Work beyond that amount requires written approval (email is enough).

4.3 Invoices are due Net fifteen (15) days from the invoice date, in U.S. dollars, by ACH, FreshBooks pay link, or the method stated on the invoice.

4.4 Late amounts accrue interest at one and one-half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less. Company may pause Services until the account is current.

4.5 Pre-approved expenses are billed at cost.

4.6 The price of Services does not include local, state, federal, or foreign sales or use taxes, excise taxes, VAT, or similar taxes. Client is solely responsible for any such taxes, other than taxes on Company’s net income. Applicable taxes are those in force on the invoice date.

4.7 Unless an SOW says otherwise, unused retainer hours do not roll past the SOW end date. Rates for work not yet started may change on thirty (30) days’ written notice. Active SOWs keep their stated rates.

5. Estimated Delivery Dates

5.1 Delivery dates and turnaround times in any SOW are estimates and do not constitute a commitment by Company. Company will use commercially reasonable efforts to meet them.

5.2 Unless a different method is specified in writing, notice of completion will be sent by email or other electronic means to the persons Client names in the SOW, promptly after the Services are completed.

5.3 Company is not responsible for delays caused by Client’s action or inaction. Client will use commercially reasonable efforts to give approvals and information promptly.

5.4 Client will review and accept or reject deliverables in writing (email is enough) within five (5) business days after notice of completion. Silence after five (5) business days is acceptance.

6. Intellectual Property

6.1 Once paid in full, Client owns the configuration, call flows, lists, reports, and other work product created specifically for Client under an SOW.

6.2 Company retains all pre-existing tools, scripts, templates, know-how, methods, and other intellectual property, and a non-exclusive right to reuse generic techniques that do not include Client’s Confidential Information.

6.3 Nothing in this Agreement gives Company a right to store, aggregate, or use Client call data, lists, or other Client Confidential Information except as needed to perform the Services.

7. Limited Warranties

7.1 Company will perform the Services in a professional and workmanlike manner. Client acknowledges that Service quality may be affected by factors outside Company’s control, including the Five9 platform, carriers, and Client data. Client should not treat Five9 uptime, carrier quality, or third-party products as warranted by Company.

7.2 Each Party represents that it has full power and authority to enter into this Agreement, that the undersigned is a duly authorized representative, that this Agreement is binding upon execution, and that performance does not conflict with any other legal obligation of that Party.

8. Remedy

8.1 If Client reports a material defect in the Services within fifteen (15) days after delivery, Company will re-perform the deficient Services at no additional charge. Re-performance is Client’s first remedy for defective Services. If Company is unable to re-perform after using commercially reasonable efforts, Company will refund the fees paid for the deficient Services. Those remedies are Client’s exclusive remedies for defective Services.

8.2 Objections not made within that fifteen (15) day period are waived, except for defects that could not reasonably have been discovered in that period.

9. Force Majeure

9.1 Other than the payment of money, neither Party is liable for delays, errors, damages, or other problems caused by events or circumstances that are unforeseen or beyond that Party’s reasonable control.

10. Indemnification and Limitation of Liability

10.1 Company will defend, indemnify, and hold harmless Client from third-party claims, liabilities, damages, and reasonable attorneys’ fees (collectively, “Damages”) arising from Company’s gross negligence or willful misconduct, except to the extent attributable to Client.

10.2 Client will defend, indemnify, and hold harmless Company and its officers, employees, and agents from third-party Damages arising from Client data, lists, or Client’s TCPA, DNC, consent, recording, or other compliance decisions, except to the extent attributable to Company’s gross negligence or willful misconduct.

10.3 Except for a Party’s fraud, willful misconduct, or breach of Section 1 (Confidentiality), Company’s total liability under this Agreement is limited to the fees Client paid in the three (3) months before the claim.

10.4 Except for a Party’s fraud, willful misconduct, or breach of Section 1, neither Party is liable for punitive, exemplary, special, indirect, incidental, or consequential damages.

11. Term and Termination

11.1 This Agreement starts on the Effective Date and continues until terminated as permitted in this Section.

11.2 Either Party may terminate this Agreement or an SOW for convenience on fifteen (15) days’ written notice. Either Party may terminate this Agreement or an SOW if the other Party materially breaches and does not cure within ten (10) days after written notice.

11.3 Client will pay for Services performed and documented expenses through the effective termination date. Company will return Client credentials and provide a short status of in-flight work.

11.4 If this Agreement is terminated while SOWs remain in force, those in-flight SOWs may continue to completion under these terms unless they are also terminated. Termination of one SOW does not terminate this Agreement or any other SOW.

11.5 Obligations that by their nature should survive, including confidentiality, intellectual property, payment, indemnification, limitation of liability, and this survival clause, survive termination.

12. Non-Exclusivity

12.1 The relationship is non-exclusive. This Agreement does not prevent Client from obtaining similar services from others, or Company from providing similar services to other clients.

13. Governing Law

13.1 This Agreement is governed by the laws of the State of California, without regard to conflict-of-law rules. Exclusive venue is in the state or federal courts located in Orange County, California. If a dispute arises over the interpretation or application of this Agreement, the Parties will first attempt to resolve it by negotiation between senior executives (for Company, David Breneman).

14. Miscellaneous

14.1 Independent Contractor. Company performs as an independent contractor and not as an agent, employee, partner, or joint venturer of Client. Neither Party may bind the other except as this Agreement or an SOW expressly allows. Company is not a Five9 reseller; Five9, Inc. is not a party to this Agreement.

14.2 Amendment. No provision of this Agreement or an SOW may be amended except by a writing (email is enough) that identifies the provision being changed.

14.3 Notices. Notices may be given by email to the addresses on the first page of this Agreement and are effective when sent, unless the sender receives an immediate failure notice.

14.4 Waiver. A waiver is effective only if in writing. Failure or delay in enforcing a provision is not a waiver of that provision or any other provision.

14.5 Severability. If a provision is held unenforceable, the rest of this Agreement remains in effect, and the unenforceable provision will be modified to the minimum extent needed to make it enforceable.

14.6 Entire Agreement. This Agreement and any SOWs are the entire agreement between the Parties on this subject and supersede all prior negotiations, representations, and agreements.

14.7 Non-Solicitation. During this Agreement and for six (6) months after, neither Party will solicit for employment the other’s employees or contractors who worked on the engagement, except through general public advertisements not directed at a specific person.

14.8 Counterparts and Electronic Signatures. This Agreement may be signed in counterparts, including electronic signatures, each of which is an original and all of which together are one instrument.

14.9 Assignment. Neither Party may assign this Agreement without the other’s written consent, except to a successor in a sale of the business.