Master Services Agreement
This Master Services Agreement (the “Agreement”), is made this ___/____/____ (the “Effective Date”), between , Proactive Risk Inc., a New Jersey corporation, with an address of 759 Bloomfield Avenue, Suite 172, West Caldwell, New Jersey 07006 (hereinafter “Company”) and <<company name>> with an address of <<address>> (“Customer”), hereinafter a “Party” and together the “Parties.”
This Agreement sets forth the Terms and Conditions for both the Company Software, Maintenance and Professional Services, as may applicable to this Agreement (cumulatively the “Services) as contained and defined in Section 1 herein.
This Agreement shall act as a base agreement under which the Parties can enter into multiple specific transactions by executing a Purchase Order or Statement of Work (the “Order) a sample of which is attached hereto as Exhibit A, or another form previously approved or accepted by an authorized representative of the Parties. At any time and for any reason, Customer may submit to Company proposed changes or additions to and/or deletions from the Work covered by any Purchase Order, and no such changes, additions or deletions shall become effective or paid for by Customer unless via a Change Order authorized by Customer and Company in advance in writing. This Agreement (including all exhibits listed below), the individual Purchase Order(s) and any related Change Order shall form a single integrated agreement between the Parties. Any conflict or inconsistency between the terms and conditions of this Agreement, a particular Purchase Order and/or a Change Order shall be resolved in favor of the terms and conditions of the documents in the following order: this Agreement first, the Change Order second, and the Purchase Order third. The Parties agree that the sole purpose of any such Purchase Order and/or Charge Order or other any other instrument furnished or utilized by Company or Customer in connection with the Work is limited to describing specific Work to be performed and/or provided (including the applicable rate/compensation for such Work), and any other language or provision in any such instrument that purports to expand, limit, modify, waive or otherwise define the rights or duties of the Parties shall be null and void ab initio, and shall not be binding on either Party.
This Agreement consists of:
This Agreement sets forth the Terms and Conditions for both the Company Software, Maintenance and Professional Services, as may applicable to this Agreement (cumulatively the “Services) as contained and defined in Section 1 herein.
This Agreement shall act as a base agreement under which the Parties can enter into multiple specific transactions by executing a Purchase Order or Statement of Work (the “Order) a sample of which is attached hereto as Exhibit A, or another form previously approved or accepted by an authorized representative of the Parties. At any time and for any reason, Customer may submit to Company proposed changes or additions to and/or deletions from the Work covered by any Purchase Order, and no such changes, additions or deletions shall become effective or paid for by Customer unless via a Change Order authorized by Customer and Company in advance in writing. This Agreement (including all exhibits listed below), the individual Purchase Order(s) and any related Change Order shall form a single integrated agreement between the Parties. Any conflict or inconsistency between the terms and conditions of this Agreement, a particular Purchase Order and/or a Change Order shall be resolved in favor of the terms and conditions of the documents in the following order: this Agreement first, the Change Order second, and the Purchase Order third. The Parties agree that the sole purpose of any such Purchase Order and/or Charge Order or other any other instrument furnished or utilized by Company or Customer in connection with the Work is limited to describing specific Work to be performed and/or provided (including the applicable rate/compensation for such Work), and any other language or provision in any such instrument that purports to expand, limit, modify, waive or otherwise define the rights or duties of the Parties shall be null and void ab initio, and shall not be binding on either Party.
This Agreement consists of:
- Master Services Agreement
- Exhibit A, Sample Purchase Order.
- This signature page;
Master Services Agreement
1 DEFINITIONS.
“Customer Data” means all electronic data or information submitted by Customer to the Service, excluding the Aggregated Data.
“Documentation” means the user and technical documentation, as updated from time to time.
“Maintenance and Support Services” means the maintenance and support services described in an Order or in a Statement of Work.
“Professional Services” means installation, training or other professional services to design, deploy or manage any product sold by Company identified in an Order or in a Statement of Work.
“Order” means the ordering documents, including but not limited to a Customer purchase order, Statement of Work or accepted quotations, representing the purchase of the Software, Service and/or any Professional Services agreed to between the parties in writing from time to time and that specify, among other things, the Software or Service ordered, the term of any Software license, and the applicable fees. Such Orders shall be deemed incorporated into and a part of this Agreement.
“Software” means the Software described herein and in the relevant Order and as offered in accordance with this Software as a Service Agreement (the “Agreement”).
“Statement of Work” a mutually executed document describing the Order, Maintenance and Support Services and/or Professional Services provided by Company to Customer and such other terms and conditions mutually agreed by the parties.
“Subscription Services” shall mean an Order based on a subscription payment model.”
“Support” means, except in the event of purchase of Maintenance and Support Services, email support only.
“Users” means Customer’s Clients who are authorized to use the Software; provided that such Clients are not competitors of Company and that all Clients have agreed in writing to use restrictions and obligations of confidence and nondisclosure no less stringent than those set forth in this Agreement.
2 RIGHTS.
2.1 License/Right to Use. The Software is provided with limited rights and is not provided under any agreement or terms of a sale of the Software. Company agrees to make available to Customer the Subscription Services set forth in an applicable Order Form in accordance with the terms and conditions of this Agreement. 2.2 Company grants Customer a nonexclusive, nontransferable right to access and use the Subscription Services solely for Customer’s internal business purposes as set forth in this Agreement. Customer shall not (i) use the Subscription Services to store or transmit computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs, (ii) use the Subscription Services to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party, (iii) access or use the Subscription Services for any benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services, (iv) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, the Subscription Services, (v) interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein, (vi) attempt to gain unauthorized access to the Subscription Services or any associated systems or networks or (vii) modify, make derivative works of, disassemble, decompile or reverse engineer the Subscription Services or any component thereof.. 2.3 Customer will not circumvent such limits. In addition to the terms set forth elsewhere in this Agreement, Customer’s use of the Software is specifically subject to the following: (a) the Software or Service shall be used only by Users for the maximum amount of capacity licensed, (b) Customer may copy the Documentation to the extent necessary for Customer to exercise its rights hereunder. Customer shall reproduce all copyright, trademark or other proprietary rights notices on any copies of the Software (if copying is permitted) and Documentation and all such copies shall be subject to the terms, conditions and obligations under this Agreement; (c) Customer shall not reverse engineer, reverse assemble, decompile, or disassemble the Software or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Software by any means; (d) Customer shall not modify, distribute, translate, or create derivative works based on the Software; (e) Customer shall not remove, alter, cover or distort any copyright, trademark or other proprietary rights notices on the Software or the Service; (f) the Software and the Service may not be sublicensed, distributed, leased, rented, offered under timesharing or application services providers’ agreements or otherwise transferred to other third parties by the Customer; (g) Customer may not use the third party software provided with the Software independent from its use of the Software and the Service; (h) Customer may not release to any third party the results of any benchmark testing of the Software or the Service; and (i) Customer may not authorize or permit any person or entity to do any of the foregoing. Customer acknowledges and agrees that the input of data and accuracy and adequacy thereof, including the output generated as a result of such input, is under the exclusive control of Customer. Any use made by Customer of the data output, or any reliance thereon, is the sole responsibility of Customer. Company is not responsible for acts or omissions of Customer’s employees, agents, contractors or representatives that result in failure of, or disruption to the Software or the Service.
3 ORDERS AND TRAINING
3.1 Orders. Customer Orders received that conform to the terms and conditions of this Agreement shall be deemed accepted by Company unless rejected within five (5) business days of receipt.
3.2 Training. If needed, Company shall conduct training if and as specified in an Order or Statement of Work on mutually convenient conditions and dates, subject of negotiations between the Parties. The payment details for training shall be specified in the Order or Statement of Work.
4 TERM AND TERMINATION.
4.1 Term of Agreement. This Agreement will commence upon the Effective Date and will continue for so long as the License for the Software is in effect or the right to use the Service is being provided pursuant to any Order or renewal thereof.
4.2 Termination Without Cause. Either party may terminate this Agreement without cause by providing the other party ninety (90) days' written notice.
4.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Company may terminate the Agreement, including any License, for cause: (i) upon thirty (30) days written notice of failure to pay for the fees herein, provided such breach remains uncured at the expiration of the notice period; (ii) automatically upon a breach of the applicable right, license, or limitations on use of the Software.; or (iii) if the Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.4 Obligations upon Termination. Upon termination of the Agreement, Customer shall cease all use of the Service, or in the case of licensees of the Software, the License shall terminate, Customer shall cease all use of the Software, have no right to obtain Maintenance and Support Services, return the Software to Company, delete the Software from its servers. Upon termination of the Agreement, each party shall return Confidential Information of the other party in its possession to the other party.
4.5 Outstanding Fees. Termination of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination.
5 RELATIONSHIP OF THE PARTIES.
5.1 Company is and shall remain an independent contractor of Customer and nothing contained in this Agreement shall be deemed to create an employer/employee, principal/agent, partnership or joint venture relationship between the parties. Customer shall not provide Company with any benefits that Customer may provide to its employees and shall not be required to withhold income taxes on, or to pay payroll taxes with respect to, the sums to be paid to Company hereunder. Company agrees that it shall be solely responsible for taxes relating to the receipt of payments hereunder. As an independent contractor, it is expressly agreed that Company operates at its own expense and risk. Company is not authorized to execute any agreements, make any changes in any agreements, incur or assume any obligations, liabilities or responsibilities, or perform any other act in the name of or on behalf of Customer. Each party shall have the obligation to supervise, manage, contract, direct, procure, pay, perform or cause to be performed all work and other obligations to be performed by such party pursuant to the terms of this Agreement and shall be liable for the acts or omissions of its employees and agents in performing its respective obligations or exercising its respective rights hereunder.
6. OWNERSHIP.
6.1 Intellectual Property. Title to and ownership of all intellectual property rights including, without limitation, any patent, trademark, copyright or intellectual or industrial property right, relating to the Software and Service shall at all times remain with Company. Customer expressly acknowledges that it does not have and shall not, by virtue of this Agreement, acquire any title or proprietary rights whatsoever of any kind in or over the Software or Service or any improvements, updates, adaptation, modification, research, development, derivation, addition, extension, changes, or other intellectual property related to the Software or Service (“Modification”), whether made by Company or Customer, and that Customer’s sole right to the Software or Service is as set forth in this Agreement. To the extent that if Customer creates any Modification, Customer agrees that such Modification shall be owned by Company. This Agreement does not authorize Parties to use name or any of its trademarks or those of its suppliers and/or licensors in any manner whatsoever, without the other Party’s prior written approval.
7. CONFIDENTIAL/PROPRIETARY INFORMATION.
7.1 Restrictions. The parties acknowledge that, in the course of their dealings, each party may acquire Confidential Information (as defined in Section 6.2 below) of the other party. Neither party shall use or disclose any Confidential Information of the other party except as permitted by or in furtherance of the purposes of this Agreement. Confidential Information of a party will be maintained under secure conditions by the other party using reasonable security measures and, in any event, not less than the same security measures used by the receiving party for the protection of its own Confidential Information of a similar kind. Any Customer employees or agents having access to the Software or Service shall be made aware of and are subject to the terms and conditions set forth herein.
7.2 Definition of Confidential/Proprietary Information. As used herein, “Confidential Information” means trade secrets, the Customer Data, the Software and other non-public information of or concerning such party or its business, products, or services. Information will be considered to be Confidential Information if it (a) is marked as confidential, proprietary, or the equivalent, (b) is identified by the disclosing party as confidential or proprietary before, during, or promptly after the presentation, communication, or other disclosure thereof, or (c) reasonably should be understood to be confidential or proprietary based on the circumstances surrounding disclosure and/or the manner such information is treated in the industry. Notwithstanding the foregoing, information shall not be considered to be Confidential Information to the extent that it (i) is already known to the receiving party on a non-confidential basis at the time it is first obtained from the disclosing party, (ii) is or becomes publicly known through no wrongful act of the receiving party, (iii) is rightfully received by the receiving party from a third party without restriction on use or disclosure, or (iv) was independently developed by the receiving party without the use of any Confidential Information of the disclosing party.
7.3 Compelled Disclosure. If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
7.4 Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Section 6, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
8. FEES AND PAYMENT.
8.1 Fees. Customer shall pay all fees specified in all executed Orders hereunder. Each Party is solely and separately responsible for its own taxes, levies and duties.
8.2 Payment. Company shall invoice Customer on or before the fifteenth (15th) day of each month for the Services provided during the prior month. Unless otherwise mutually agreed to in an Order, all fees are due net thirty (30) days from the invoice date. Fees for the Software or Service will be invoiced monthly unless otherwise specified in the relevant Order. If Customer reasonably and in good faith disputes all or any portion of any invoice, Customer shall notify Company in writing of its objection within ten (10) days from the date of Customer’s receipt of the invoice, provide a detailed description of the reasons for the objection, and pay the portion of the invoice which is not in dispute. Company and Customer shall immediately seek to resolve the dispute or question.
9. LIMITED WARRANTY.
9.1 Authority and Performance. Each party represents and warrants that (i) it has the legal right and authority to enter into this Agreement and perform its obligations under this Agreement, and (ii) the performance of its obligations and use of the Software, the Service, the Maintenance and Support Services and any Professional Services (by Customer and its Users), as applicable, will not violate any applicable laws, regulations, or cause a breach of any agreements with any third parties. Professional Services Warranty. Company represents and warrants that the Professional Services will be performed in accordance with industry standards. In the event of any breach of the warranty set forth in this Section which is so reported by Customer to Company in writing within thirty days of the performance of such Professional Services, Company’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, shall be for Company to correct any reported failure causing a breach of this warranty, however, that IF WITHIN A COMMERCIALLY REASONABLE PERIOD, COMPANY FAILS TO CORRECT SUCH DEFECTS THEN CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE A REFUND OF THE FEES PAID BY THE CUSTOMER FOR THE PORTION OF THE PROFESSIONAL SERVICES WHICH ARE NON-CONFORMING.
10. WARRANTIES, DISCLAIMERS.
10.1 CUSTOMER EXPRESSLY UNDERSTAND AND AGREE THAT:10.2 YOUR USE OF THE COMPANY SERVICE IS AT YOUR SOLE RISK. THE COMPANY SERVICE AND THE ASSOCIATED MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, COMPANY, ITS PARENT, SUBSIDIARY AND OTHER AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “COMPANY PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY PARTIES MAKE NO WARRANTY THAT: (I) THE COMPANY SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE COMPANY SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE COMPANY SERVICE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL, INCLUDING ALL MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH THE COMPANY SERVICE WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE COMPANY SERVICE WILL BE CORRECTED.
11. LIMITATION OF LIABILITY.
11.1 Direct Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND COMPANY’S LICENSORS FOR ANY BREACH OR DEFAULT UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY BREACH OF ANY WARRANTY GIVEN BY COMPANY UNDER THIS AGREEMENT) SHALL BE LIMITED TO THE AMOUNT OF SUCH PARTY’S DIRECT DAMAGES RESULTING FROM SUCH BREACH OR DEFAULT, NOT TO EXCEED THE AMOUNTS PAID OR PAYABLE TO COMPANY BY CUSTOMER WITH RESPECT TO THE SOFTWARE, THE SERVICE, THE MAINTENANCE AND SUPPORT SERVICES, OR PROFESSIONAL SERVICES GIVING RISE TO SUCH BREACH OR DEFAULT WITHIN THE LAST TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. 11.2 Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING FROM BREACH OF THE CONFIDENTIALITY OBLIGATION SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY AND COMPANY’S LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS OR FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS) ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE SOFTWARE, THE SERVICE, THE MAINTENANCE AND SUPPORT SERVICES, OR THE PROFESSIONAL SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
11.3 Limitation of Action. Except for actions for nonpayment of fees hereunder or a breach of the applicable right, license, or limitations on use of the Software, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.
12. INDEMNIFICATION.
12.1 Indemnification by Company. Subject to the provisions of Section 12.2, Company shall indemnify, defend, and hold harmless Customer against any claim, suit, action or proceeding (each, an “Action”) brought against Customer by a third party to the extent that the Action is based upon a claim that the Software infringes any United States copyright or United States patent, and Company will pay those costs and damages finally awarded against Customer in any such Action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such Action made by Company. If the Software becomes, or in Company’s opinion is likely to become, the subject of an infringement or misappropriation claim, Company may, at its option and expense, either: (i) procure for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing (provided any such replacement or modification does not materially degrade the Software’s functionality), or (iii) if (i) or (ii) are not commercially practicable despite Company using commercially reasonable efforts, terminate this Agreement and provide Customer with, as applicable, a pro-rata refund of any fees paid in advance for the unused remainder of any term for which the Service will not be provided following such termination or for the reminder of any term of the License for the Software. Notwithstanding the foregoing, Company will have no obligation with respect to any Action if the Software is being used not in accordance with this Agreement or not in accordance with the Documentation, is not the latest version of the Software, has been modified by Customer or any third party, or is used in combination with any hardware or software not provided by Company and the Software itself is not infringing. Company’s obligations under this Section 12 shall constitute its only obligations in the event that any claim or action is brought against Customer alleging that the Software infringes, misappropriates, or otherwise violates the rights of any third party.
12.2 Notification and Cooperation. The obligations under this Section 12 are conditioned on: (a) the Customer notifying Company promptly in writing of the commencement of any Action, (b) the Customer giving Company sole control of the defense thereof and any related settlement negotiations, and (c) the Customer cooperating with Company in such defense (at Company’s sole cost and expense).
13. PROFESSIONAL SERVICES.
13.1 Professional Services. From time to time during the term of this Agreement, Company may perform Professional Services as described in a separately executed and delivered Statement of Work. Each Statement of Work shall be governed by the terms and conditions contained herein. In the event of a conflict between the terms and conditions contained in this Agreement and the terms set forth in the Statement of Work, the terms in the Statement of Work shall prevail.
14. Third Party Specific Provisions.
14.1 The Software or the Service may include certain software from third-party software providers and/or developers (“Third Party Software”).
14.2 Software, Service and Third-Party Products may contain software that is subject to open source licensing terms.
15. GENERAL.
15.1 Miscellaneous. Any provision of this Agreement, other than the provisions regarding payment obligations, that is held to be invalid, illegal or unenforceable by a court of competent jurisdiction shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect. No failure or delay by either party to exercise any right or remedy specified herein shall be construed as a current or future waiver of such remedy or right, unless said waiver is in writing signed by a duly authorized representative of the party issuing such waiver.
15.2 Assignment. This Agreement is binding upon the parties’ respective representatives, successors, and assigns; provided, however, neither party shall assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party shall be permitted to assign this Agreement in the event of change of control, corporate reorganization, merger, acquisition or, divestiture of all or substantially all of such party’s assets.
15.3 Notices. Any written notice required to be given to a party under this Agreement shall be given by e-mail, personal delivery to such party, or mailed by registered or certified mail, return receipt requested, postage prepaid, or shipped by a nationally-recognized overnight carrier, shipping prepaid, to such party at such party’s address set forth at the beginning of this Agreement.
15.4 Governing Law and Jurisdiction. This Agreement will be interpreted and construed in accordance with the laws of The United States of America, exclusive of its rules governing conflict of laws and choice of laws. This Agreement specifically excludes the provision of the 1980 United Nations Convention on Contracts for the International Sale of Goods and the U.N. Convention on the Limitation Period in the International Sales of Goods, as amended by Protocol.
15.5 Force Majeure. Except for the obligation to make payments, neither party shall be liable for delays or breaches in its performance under this Agreement due to causes beyond its reasonable control, such as acts of vendors, acts of god, acts or omissions of civil or military authority, government priorities, fire, earthquakes, strikes or other labor problems, floods, epidemics, quarantine restrictions, riots, war, acts of terror, computer or telecommunications failures, network intrusions or denial of service attacks and delays of transportation (“Force Majeure”).
15.6 Relationship Acknowledgement. The parties agree the existence of this business relationship is not itself considered Confidential Information. Each party may upon execution of this Agreement or Orders hereunder issue a news release showcasing the pertinent benefits of the business relationship.
15.7 Entire Agreement. This Agreement, including all attachments and addenda hereto, along with all Orders executed hereunder, constitutes the entire agreement between the parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals or representations, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. Any modification of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced. If any of the terms or conditions of this Agreement conflict with any of the terms or conditions of any Orders, then, unless otherwise provided herein, the terms and conditions of such Order will control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
15.8 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
Executed by the parties hereto as an instrument under seal effective as of the Effective Date.
Signature by ______________________________
Date ____________________________________
Name ___________________________________
Title _____________________________________
Signature by ______________________________
Date ____________________________________
Name ___________________________________
Title _____________________________________
##SAMPLE AGREEMENT
1 DEFINITIONS.
“Customer Data” means all electronic data or information submitted by Customer to the Service, excluding the Aggregated Data.
“Documentation” means the user and technical documentation, as updated from time to time.
“Maintenance and Support Services” means the maintenance and support services described in an Order or in a Statement of Work.
“Professional Services” means installation, training or other professional services to design, deploy or manage any product sold by Company identified in an Order or in a Statement of Work.
“Order” means the ordering documents, including but not limited to a Customer purchase order, Statement of Work or accepted quotations, representing the purchase of the Software, Service and/or any Professional Services agreed to between the parties in writing from time to time and that specify, among other things, the Software or Service ordered, the term of any Software license, and the applicable fees. Such Orders shall be deemed incorporated into and a part of this Agreement.
“Software” means the Software described herein and in the relevant Order and as offered in accordance with this Software as a Service Agreement (the “Agreement”).
“Statement of Work” a mutually executed document describing the Order, Maintenance and Support Services and/or Professional Services provided by Company to Customer and such other terms and conditions mutually agreed by the parties.
“Subscription Services” shall mean an Order based on a subscription payment model.”
“Support” means, except in the event of purchase of Maintenance and Support Services, email support only.
“Users” means Customer’s Clients who are authorized to use the Software; provided that such Clients are not competitors of Company and that all Clients have agreed in writing to use restrictions and obligations of confidence and nondisclosure no less stringent than those set forth in this Agreement.
2 RIGHTS.
2.1 License/Right to Use. The Software is provided with limited rights and is not provided under any agreement or terms of a sale of the Software. Company agrees to make available to Customer the Subscription Services set forth in an applicable Order Form in accordance with the terms and conditions of this Agreement. 2.2 Company grants Customer a nonexclusive, nontransferable right to access and use the Subscription Services solely for Customer’s internal business purposes as set forth in this Agreement. Customer shall not (i) use the Subscription Services to store or transmit computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs, (ii) use the Subscription Services to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party, (iii) access or use the Subscription Services for any benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services, (iv) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, the Subscription Services, (v) interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein, (vi) attempt to gain unauthorized access to the Subscription Services or any associated systems or networks or (vii) modify, make derivative works of, disassemble, decompile or reverse engineer the Subscription Services or any component thereof.. 2.3 Customer will not circumvent such limits. In addition to the terms set forth elsewhere in this Agreement, Customer’s use of the Software is specifically subject to the following: (a) the Software or Service shall be used only by Users for the maximum amount of capacity licensed, (b) Customer may copy the Documentation to the extent necessary for Customer to exercise its rights hereunder. Customer shall reproduce all copyright, trademark or other proprietary rights notices on any copies of the Software (if copying is permitted) and Documentation and all such copies shall be subject to the terms, conditions and obligations under this Agreement; (c) Customer shall not reverse engineer, reverse assemble, decompile, or disassemble the Software or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Software by any means; (d) Customer shall not modify, distribute, translate, or create derivative works based on the Software; (e) Customer shall not remove, alter, cover or distort any copyright, trademark or other proprietary rights notices on the Software or the Service; (f) the Software and the Service may not be sublicensed, distributed, leased, rented, offered under timesharing or application services providers’ agreements or otherwise transferred to other third parties by the Customer; (g) Customer may not use the third party software provided with the Software independent from its use of the Software and the Service; (h) Customer may not release to any third party the results of any benchmark testing of the Software or the Service; and (i) Customer may not authorize or permit any person or entity to do any of the foregoing. Customer acknowledges and agrees that the input of data and accuracy and adequacy thereof, including the output generated as a result of such input, is under the exclusive control of Customer. Any use made by Customer of the data output, or any reliance thereon, is the sole responsibility of Customer. Company is not responsible for acts or omissions of Customer’s employees, agents, contractors or representatives that result in failure of, or disruption to the Software or the Service.
3 ORDERS AND TRAINING
3.1 Orders. Customer Orders received that conform to the terms and conditions of this Agreement shall be deemed accepted by Company unless rejected within five (5) business days of receipt.
3.2 Training. If needed, Company shall conduct training if and as specified in an Order or Statement of Work on mutually convenient conditions and dates, subject of negotiations between the Parties. The payment details for training shall be specified in the Order or Statement of Work.
4 TERM AND TERMINATION.
4.1 Term of Agreement. This Agreement will commence upon the Effective Date and will continue for so long as the License for the Software is in effect or the right to use the Service is being provided pursuant to any Order or renewal thereof.
4.2 Termination Without Cause. Either party may terminate this Agreement without cause by providing the other party ninety (90) days' written notice.
4.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Company may terminate the Agreement, including any License, for cause: (i) upon thirty (30) days written notice of failure to pay for the fees herein, provided such breach remains uncured at the expiration of the notice period; (ii) automatically upon a breach of the applicable right, license, or limitations on use of the Software.; or (iii) if the Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.4 Obligations upon Termination. Upon termination of the Agreement, Customer shall cease all use of the Service, or in the case of licensees of the Software, the License shall terminate, Customer shall cease all use of the Software, have no right to obtain Maintenance and Support Services, return the Software to Company, delete the Software from its servers. Upon termination of the Agreement, each party shall return Confidential Information of the other party in its possession to the other party.
4.5 Outstanding Fees. Termination of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination.
5 RELATIONSHIP OF THE PARTIES.
5.1 Company is and shall remain an independent contractor of Customer and nothing contained in this Agreement shall be deemed to create an employer/employee, principal/agent, partnership or joint venture relationship between the parties. Customer shall not provide Company with any benefits that Customer may provide to its employees and shall not be required to withhold income taxes on, or to pay payroll taxes with respect to, the sums to be paid to Company hereunder. Company agrees that it shall be solely responsible for taxes relating to the receipt of payments hereunder. As an independent contractor, it is expressly agreed that Company operates at its own expense and risk. Company is not authorized to execute any agreements, make any changes in any agreements, incur or assume any obligations, liabilities or responsibilities, or perform any other act in the name of or on behalf of Customer. Each party shall have the obligation to supervise, manage, contract, direct, procure, pay, perform or cause to be performed all work and other obligations to be performed by such party pursuant to the terms of this Agreement and shall be liable for the acts or omissions of its employees and agents in performing its respective obligations or exercising its respective rights hereunder.
6. OWNERSHIP.
6.1 Intellectual Property. Title to and ownership of all intellectual property rights including, without limitation, any patent, trademark, copyright or intellectual or industrial property right, relating to the Software and Service shall at all times remain with Company. Customer expressly acknowledges that it does not have and shall not, by virtue of this Agreement, acquire any title or proprietary rights whatsoever of any kind in or over the Software or Service or any improvements, updates, adaptation, modification, research, development, derivation, addition, extension, changes, or other intellectual property related to the Software or Service (“Modification”), whether made by Company or Customer, and that Customer’s sole right to the Software or Service is as set forth in this Agreement. To the extent that if Customer creates any Modification, Customer agrees that such Modification shall be owned by Company. This Agreement does not authorize Parties to use name or any of its trademarks or those of its suppliers and/or licensors in any manner whatsoever, without the other Party’s prior written approval.
7. CONFIDENTIAL/PROPRIETARY INFORMATION.
7.1 Restrictions. The parties acknowledge that, in the course of their dealings, each party may acquire Confidential Information (as defined in Section 6.2 below) of the other party. Neither party shall use or disclose any Confidential Information of the other party except as permitted by or in furtherance of the purposes of this Agreement. Confidential Information of a party will be maintained under secure conditions by the other party using reasonable security measures and, in any event, not less than the same security measures used by the receiving party for the protection of its own Confidential Information of a similar kind. Any Customer employees or agents having access to the Software or Service shall be made aware of and are subject to the terms and conditions set forth herein.
7.2 Definition of Confidential/Proprietary Information. As used herein, “Confidential Information” means trade secrets, the Customer Data, the Software and other non-public information of or concerning such party or its business, products, or services. Information will be considered to be Confidential Information if it (a) is marked as confidential, proprietary, or the equivalent, (b) is identified by the disclosing party as confidential or proprietary before, during, or promptly after the presentation, communication, or other disclosure thereof, or (c) reasonably should be understood to be confidential or proprietary based on the circumstances surrounding disclosure and/or the manner such information is treated in the industry. Notwithstanding the foregoing, information shall not be considered to be Confidential Information to the extent that it (i) is already known to the receiving party on a non-confidential basis at the time it is first obtained from the disclosing party, (ii) is or becomes publicly known through no wrongful act of the receiving party, (iii) is rightfully received by the receiving party from a third party without restriction on use or disclosure, or (iv) was independently developed by the receiving party without the use of any Confidential Information of the disclosing party.
7.3 Compelled Disclosure. If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
7.4 Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Section 6, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
8. FEES AND PAYMENT.
8.1 Fees. Customer shall pay all fees specified in all executed Orders hereunder. Each Party is solely and separately responsible for its own taxes, levies and duties.
8.2 Payment. Company shall invoice Customer on or before the fifteenth (15th) day of each month for the Services provided during the prior month. Unless otherwise mutually agreed to in an Order, all fees are due net thirty (30) days from the invoice date. Fees for the Software or Service will be invoiced monthly unless otherwise specified in the relevant Order. If Customer reasonably and in good faith disputes all or any portion of any invoice, Customer shall notify Company in writing of its objection within ten (10) days from the date of Customer’s receipt of the invoice, provide a detailed description of the reasons for the objection, and pay the portion of the invoice which is not in dispute. Company and Customer shall immediately seek to resolve the dispute or question.
9. LIMITED WARRANTY.
9.1 Authority and Performance. Each party represents and warrants that (i) it has the legal right and authority to enter into this Agreement and perform its obligations under this Agreement, and (ii) the performance of its obligations and use of the Software, the Service, the Maintenance and Support Services and any Professional Services (by Customer and its Users), as applicable, will not violate any applicable laws, regulations, or cause a breach of any agreements with any third parties. Professional Services Warranty. Company represents and warrants that the Professional Services will be performed in accordance with industry standards. In the event of any breach of the warranty set forth in this Section which is so reported by Customer to Company in writing within thirty days of the performance of such Professional Services, Company’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, shall be for Company to correct any reported failure causing a breach of this warranty, however, that IF WITHIN A COMMERCIALLY REASONABLE PERIOD, COMPANY FAILS TO CORRECT SUCH DEFECTS THEN CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE A REFUND OF THE FEES PAID BY THE CUSTOMER FOR THE PORTION OF THE PROFESSIONAL SERVICES WHICH ARE NON-CONFORMING.
10. WARRANTIES, DISCLAIMERS.
10.1 CUSTOMER EXPRESSLY UNDERSTAND AND AGREE THAT:10.2 YOUR USE OF THE COMPANY SERVICE IS AT YOUR SOLE RISK. THE COMPANY SERVICE AND THE ASSOCIATED MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, COMPANY, ITS PARENT, SUBSIDIARY AND OTHER AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “COMPANY PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY PARTIES MAKE NO WARRANTY THAT: (I) THE COMPANY SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE COMPANY SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE COMPANY SERVICE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL, INCLUDING ALL MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH THE COMPANY SERVICE WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE COMPANY SERVICE WILL BE CORRECTED.
11. LIMITATION OF LIABILITY.
11.1 Direct Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND COMPANY’S LICENSORS FOR ANY BREACH OR DEFAULT UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY BREACH OF ANY WARRANTY GIVEN BY COMPANY UNDER THIS AGREEMENT) SHALL BE LIMITED TO THE AMOUNT OF SUCH PARTY’S DIRECT DAMAGES RESULTING FROM SUCH BREACH OR DEFAULT, NOT TO EXCEED THE AMOUNTS PAID OR PAYABLE TO COMPANY BY CUSTOMER WITH RESPECT TO THE SOFTWARE, THE SERVICE, THE MAINTENANCE AND SUPPORT SERVICES, OR PROFESSIONAL SERVICES GIVING RISE TO SUCH BREACH OR DEFAULT WITHIN THE LAST TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. 11.2 Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING FROM BREACH OF THE CONFIDENTIALITY OBLIGATION SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY AND COMPANY’S LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS OR FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS) ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE SOFTWARE, THE SERVICE, THE MAINTENANCE AND SUPPORT SERVICES, OR THE PROFESSIONAL SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
11.3 Limitation of Action. Except for actions for nonpayment of fees hereunder or a breach of the applicable right, license, or limitations on use of the Software, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.
12. INDEMNIFICATION.
12.1 Indemnification by Company. Subject to the provisions of Section 12.2, Company shall indemnify, defend, and hold harmless Customer against any claim, suit, action or proceeding (each, an “Action”) brought against Customer by a third party to the extent that the Action is based upon a claim that the Software infringes any United States copyright or United States patent, and Company will pay those costs and damages finally awarded against Customer in any such Action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such Action made by Company. If the Software becomes, or in Company’s opinion is likely to become, the subject of an infringement or misappropriation claim, Company may, at its option and expense, either: (i) procure for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing (provided any such replacement or modification does not materially degrade the Software’s functionality), or (iii) if (i) or (ii) are not commercially practicable despite Company using commercially reasonable efforts, terminate this Agreement and provide Customer with, as applicable, a pro-rata refund of any fees paid in advance for the unused remainder of any term for which the Service will not be provided following such termination or for the reminder of any term of the License for the Software. Notwithstanding the foregoing, Company will have no obligation with respect to any Action if the Software is being used not in accordance with this Agreement or not in accordance with the Documentation, is not the latest version of the Software, has been modified by Customer or any third party, or is used in combination with any hardware or software not provided by Company and the Software itself is not infringing. Company’s obligations under this Section 12 shall constitute its only obligations in the event that any claim or action is brought against Customer alleging that the Software infringes, misappropriates, or otherwise violates the rights of any third party.
12.2 Notification and Cooperation. The obligations under this Section 12 are conditioned on: (a) the Customer notifying Company promptly in writing of the commencement of any Action, (b) the Customer giving Company sole control of the defense thereof and any related settlement negotiations, and (c) the Customer cooperating with Company in such defense (at Company’s sole cost and expense).
13. PROFESSIONAL SERVICES.
13.1 Professional Services. From time to time during the term of this Agreement, Company may perform Professional Services as described in a separately executed and delivered Statement of Work. Each Statement of Work shall be governed by the terms and conditions contained herein. In the event of a conflict between the terms and conditions contained in this Agreement and the terms set forth in the Statement of Work, the terms in the Statement of Work shall prevail.
14. Third Party Specific Provisions.
14.1 The Software or the Service may include certain software from third-party software providers and/or developers (“Third Party Software”).
14.2 Software, Service and Third-Party Products may contain software that is subject to open source licensing terms.
15. GENERAL.
15.1 Miscellaneous. Any provision of this Agreement, other than the provisions regarding payment obligations, that is held to be invalid, illegal or unenforceable by a court of competent jurisdiction shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect. No failure or delay by either party to exercise any right or remedy specified herein shall be construed as a current or future waiver of such remedy or right, unless said waiver is in writing signed by a duly authorized representative of the party issuing such waiver.
15.2 Assignment. This Agreement is binding upon the parties’ respective representatives, successors, and assigns; provided, however, neither party shall assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party shall be permitted to assign this Agreement in the event of change of control, corporate reorganization, merger, acquisition or, divestiture of all or substantially all of such party’s assets.
15.3 Notices. Any written notice required to be given to a party under this Agreement shall be given by e-mail, personal delivery to such party, or mailed by registered or certified mail, return receipt requested, postage prepaid, or shipped by a nationally-recognized overnight carrier, shipping prepaid, to such party at such party’s address set forth at the beginning of this Agreement.
15.4 Governing Law and Jurisdiction. This Agreement will be interpreted and construed in accordance with the laws of The United States of America, exclusive of its rules governing conflict of laws and choice of laws. This Agreement specifically excludes the provision of the 1980 United Nations Convention on Contracts for the International Sale of Goods and the U.N. Convention on the Limitation Period in the International Sales of Goods, as amended by Protocol.
15.5 Force Majeure. Except for the obligation to make payments, neither party shall be liable for delays or breaches in its performance under this Agreement due to causes beyond its reasonable control, such as acts of vendors, acts of god, acts or omissions of civil or military authority, government priorities, fire, earthquakes, strikes or other labor problems, floods, epidemics, quarantine restrictions, riots, war, acts of terror, computer or telecommunications failures, network intrusions or denial of service attacks and delays of transportation (“Force Majeure”).
15.6 Relationship Acknowledgement. The parties agree the existence of this business relationship is not itself considered Confidential Information. Each party may upon execution of this Agreement or Orders hereunder issue a news release showcasing the pertinent benefits of the business relationship.
15.7 Entire Agreement. This Agreement, including all attachments and addenda hereto, along with all Orders executed hereunder, constitutes the entire agreement between the parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals or representations, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. Any modification of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced. If any of the terms or conditions of this Agreement conflict with any of the terms or conditions of any Orders, then, unless otherwise provided herein, the terms and conditions of such Order will control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
15.8 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
Executed by the parties hereto as an instrument under seal effective as of the Effective Date.
Signature by ______________________________
Date ____________________________________
Name ___________________________________
Title _____________________________________
Signature by ______________________________
Date ____________________________________
Name ___________________________________
Title _____________________________________
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