MASTER SERVICES AGREEMENT

This Master Services Agreement (“Agreement”) governs services offered by Brian Timothy and Associates, LLC D/B/A “FractionX”, a North Carolina limited liability company (“Brian Timothy and Associates”). Brian Timothy and Associates provides business and technical consulting and training services to assist companies in solving specific business challenges. Purchasers of Brian Timothy and Associates services (“Client”) agreeing to separately detailed Statements of Work (“Statement of Work”) hereby agree to the following conditions of service.

1.      Services.  

1.1       Brian Timothy and Associates Services.  Brian Timothy and Associates shall provide to Client detailed business consulting, training and technical implementation services (the “Services”) set out in one or more statements of work to be mutually agreed by the parties (each, a “Statement of Work”).

2.      Brian Timothy and Associates Obligations.  Brian Timothy and Associates acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

2.1       Providing the Services in accordance with each Statement of Work; and

2.2       Maintaining complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Brian Timothy and Associates in providing the Services. 

3.      Client Obligations.  Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

3.1       Responding promptly to any requests from Brian Timothy and Associates for instructions, information, data or approvals required by Brian Timothy and Associates to provide the Services;

3.2       Furnishing data needed and requested by Brian Timothy and Associates to provide Services;

3.3       Cooperating with and assisting Brian Timothy and Associates in its performance of the Services and providing access to Client’s premises, employees and equipment as required to enable Brian Timothy and Associates to provide the Services; and

3.4       Taking all steps necessary, including obtaining any required licenses, permissions or consents, to prevent Client-caused delays in Brian Timothy and Associates’s provision of the Services.

4.      Fees and Expenses.

4.1       Client shall pay all fees for Services rendered in the manner set out in the applicable Statement of Work. Unless otherwise provided in the applicable Statement of Work, Brian Timothy and Associates collects fees electronically via credit card or bank transfer via the website fractionX.com in which the fees shall be paid on a monthly or one time basis in accordance with the Statement of Work. In the event the Client is not able to procure Services electronically via the website fractionx.com, Brian Timothy and Associates shall issue invoices to the client for the Services described in the Statement of Work. All invoices shall be paid by credit card, ACH, or bank wire within 15 business days of receipt. 

 4.2       Client shall additionally reimburse Brian Timothy and Associates for all reasonable expenses incurred in accordance with the Statement of Work, within 15 days of receipt by the Client of an invoice from Brian Timothy and Associates, unless agreed to otherwise in the Statement of Work.

4.3       Brian Timothy and Associates shall pay all income taxes and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. Client will not withhold FICA or income taxes on Brian Timothy and Associates’s behalf.

4.4        Brian Timothy and Associates may at its discretion suspend the provision of any Services if the Client fails to pay any undisputed amounts.

5.      Warranties.

5.1       Brian Timothy and Associates hereby represents, warrants and covenants to Client that Brian Timothy and Associates shall perform the Services:

(a)       In accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement;

(b)       Using personnel of commercially reasonable skill, experience and qualifications; and

(c)       In a timely, workmanlike and professional manner in accordance with all reasonable professional standards for such services.

5.2       Brian Timothy and Associates MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN Section 5. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED. Brian Timothy and Associates EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE SERVICES PROVIDED.

6.      Confidentiality.

6.1       Client Information.  Brian Timothy and Associates understands that, as a result of providing Services to Client, Brian Timothy and Associates may obtain extensive and valuable Confidential Information belonging to Client. Brian Timothy and Associates agrees during the course of Agreement and three (3) years thereafter, to hold in strict confidence, and not to use, or to disclose to any person, firm or corporation without written authorization of an executive officer of the Client. “Client Confidential Information” means any Client non-public information, clearly identified and marked as such.

6.2       Brian Timothy and Associates Information.  Client understands that, as a result of receiving Services from Brian Timothy and Associates, Client may obtain extensive and valuable Confidential Information belonging to Brian Timothy and Associates. Client agrees during the course of Agreement and three (3) years thereafter, to hold in strict confidence, and not to use, except for the benefit of Brian Timothy and Associates, or to disclose to any person, firm or corporation without written authorization of an executive officer of Brian Timothy and Associates. “Brian Timothy and Associates Confidential Information” means any Brian Timothy and Associates non-public information, clearly identified and marked as such.

6.3       User Data.  The parties do not intend for Brian Timothy and Associates to receive from Client, or for Brian Timothy and Associates to collect or process on Client’s behalf, any “personal data,” as that term is defined by the General Data Protection Regulation (European Union Regulation 2016/679) (the “GDPR”). Client shall not disclose to Brian Timothy and Associates any such personal data or otherwise take any actions that might cause Brian Timothy and Associates to be subject to the GDPR.

7.      Term and Termination.

7.1       Term of Agreement.  This Agreement will become operative on the Effective Date and will remain in full force and effect until the earliest of (i) the date Brian Timothy and Associates completes the Services under all Statements of Work, or (ii) the date a party terminates the Agreement pursuant to Sections 7.2 or 7.3 (“Expiration Date”).

7.3       Termination for Cause - General.  If either party commits a material breach of this Agreement, the other party may terminate this Agreement if the breaching party fails to cure the breach within thirty (30) days of receiving written notice of breach. 

7.4           Termination for Convenience.  Either party may terminate this Agreement at any time without cause by providing thirty (30) days’ prior written notice. Brian Timothy and Associates shall be entitled to full payment for services performed prior to the Expiration Date.

8.      Liability.

8.1       Indemnification of Brian Timothy and Associates.  CLIENT WILL INDEMNIFY, DEFEND, AND HOLD Brian Timothy and Associates AND ITS SUBSIDIARIES, AFFILIATES, AGENTS, OFFICERS, DIRECTORS, AND EMPLOYEES HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES AND REASONABLE EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES, COSTS AND EXPENSES OF CONSULTANTS AND EXPERT WITNESSES, AND COSTS OF APPEAL), TO THE EXTENT ARISING OUT OF OR RESULTING IN WHOLE OR IN PART FROM (A) ANY BREACH OF THIS AGREEMENT BY CLIENT, (B) ANY CLAIM THAT SERVICES OR WORK PRODUCT HEREUNDER INFRINGE A THIRD PARTY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHT, OR (D) ANY NEGLIGENT ACT OR OMISSION OF ANY CLIENT EMPLOYEE, AGENT, OR SUBCONTRACTOR.

8.2       Limitation of Liability.  THE SERVICES AND THE WORK PRODUCT OF Brian Timothy and Associates ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF Brian Timothy and Associates, SHALL BE LIMITED TO THE NET PROFIT OF Brian Timothy and Associates. IN NO EVENT SHALL Brian Timothy and Associates’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO Brian Timothy and Associates PURSUANT TO THE APPLICABLE STATEMENT OF WORK IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9.   Notices.  Except as otherwise expressly provided herein; for the purposes of this Agreement, any notice, consent, approval, request, demand and all other communications provided for in the Agreement (collectively, “Notices”) shall be in writing and shall be deemed to have been duly given if delivered personally, mailed via registered or certified mail, postage prepaid, return receipt requested, in writing by electronic mail and a telephone call to confirm receipt of such e-mail.  Except as provided elsewhere in this Agreement, Notices are effective only if the party giving the Notice has complied with this paragraph. Notices should be addressed:

If to Brian Timothy and Associates:

Brian Timothy and Associates
Managing Partner
PO BOX 610
APEX, NC 27502
E-mail: info@briantimothy.com

 10.   Entire Agreement.  This Agreement, together with any related Statements of Work, exhibits, schedules, attachments and appendices herein, set forth the entire agreement and understanding between the Client and Brian Timothy and Associates relating to the subject matter herein and supersedes all prior and contemporaneous understandings, agreements, discussions, representations and warranties, both written and oral, between the parties. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work or Third Party Terms, the terms and conditions of this Agreement control unless the Statement of Work expressly states the parties’ intent to vary one or more specifically identified terms or conditions of this Agreement.

11.   Severability.  Should any term or provision of this Agreement be determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such term or provision shall automatically be amended so as to make it valid, legal and enforceable but keeping it as close to its original meaning as possible. The invalidity, illegality or unenforceability of any term or provision shall not affect in any manner the other terms or provisions herein contained, which remain in full force and effect.

12.   Amendments.  No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by each party.

13.   Waiver.  No waiver by any party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. 

14.   Assignment.  Client shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Brian Timothy and Associates. 

15.   Choice of Law.  This Agreement, including all Statements of Work, exhibits, schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of North Carolina, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolina.

16.          Arbitration.  Any dispute, controversy, or claim arising out of, relating to or in connection with this Agreement or SOW, including the breach, termination, or validity thereof, shall be resolved by final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in a mutually agreeable location by both parties and submitted in writing. Each party shall bear its own costs and expenses, including attorneys’ fees, associated with the arbitration. The parties agree to share equally the fees and expenses of the arbitrator(s). This arbitration clause shall not preclude either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. 

17.   Force Majeure.  The Brian Timothy and Associates is not liable or responsible to Client, nor will be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Brian Timothy and Associates including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce). If the event in question continues for a continuous period in excess of 30 days, Client may give notice in writing to Brian Timothy and Associates to terminate this Agreement.r Services Agreement (“Agreement”) governs services offered by Brian Timothy and Associates, LLC D/B/A “FractionX”, a North Carolina limited liability company (“Brian Timothy and Associates”). Brian Timothy and Associates provides business and technical consulting and training services to assist companies in solving specific business challenges. Purchasers of Brian Timothy and Associates services (“Client”) agreeing to separately detailed Statements of Work (“Statement of Work”) hereby agree to the following conditions of service.

1.