Master Services Agreement
This Master Services Agreement (“Agreement”) is made and entered into effective upon Customer’s acquisition or use of the Enmark products or services specified under the Order Form into which this Agreement is incorporated. This Agreement is by and between Enmark Systems, Inc. (“Enmark”) and the customer named in the Order Form (“Customer“), each a “Party” and collectively the “Parties”, and is effective as of the date Effective Date of the related Order Form.
WHEREAS, Enmark provides its products and services through its proprietary technology and software platform; and
WHEREAS, Customer would like to acquire the products and services specified in the Order Form.
NOW THEREFORE, in consideration of the Order Form, the above recitals, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the terms and conditions of this Agreement.
1. Service Terms.
1.1 Products/Services. Enmark agrees to provide its proprietary platform, consisting of equipment, software products and services, on a subscription basis (“SaaS Service”) as specified in the Order Form. In addition, any professional services (e.g., support, training, implementation or other) as specified in the Order Form or a related statement of work (“SOW”) will be provided to Customer. Enmark shall make the SaaS Service and the professional services (collectively the “Services”) to Customer on the terms set forth in this Agreement and the related Order Form.
(a) Affiliates. Customer may order Services on behalf of itself or on behalf of any Affiliate, provided that the Affiliate’s right to use the Services must be expressly specified in the Order Form and unless such Affiliate independently signs the Order Form, Customer remains liable for all acts and omissions of such Affiliate under this Agreement and the Order Form. For purposes of this Agreement, “Affiliates” shall mean any entity that Customer controls, is controlled by, or is under common control with, where “control” means the ability to direct the management of the entity through ownership or by way of contract.
(b) SaaS Services. Customer’s and its applicable Affiliates’ access to the SaaS Service is licensed (as further specified in Section 2.2(a)) on a subscription basis and not sold. Subject to the timely payment of all fees and the terms and conditions set forth in the Order Form incorporating this Agreement, Enmark agrees to provide Customer with a personal, non-transferable administrative account that enables Customer to authorize access and use the SaaS Service by Users. Any support services for the SaaS Service shall be provided in accordance with Enmark’s standard support terms.
(c) Professional Services. Enmark shall perform any professional services in conformance to any specifications or standards specified and agreed to by the Parties in the Order Form or related SOW and all such professional services shall be subject to the Professional Services Terms specified in Exhibit PS attached hereto and incorporated herein by this reference. The license to any written reports, findings or other written materials provided to Customer in conjunction with the Services will be as specified in Exhibit PS.
1.2 Users; Additional Users.
(a) Users. During a “Subscription Period” (as specified in the Order Form), a User subscription for the SaaS Service cannot be shared or used by more than one User, but may be reassigned from time to time from one User to a new User by the Customer administrator.
(b) Additional Users. If Customer wishes to add additional User subscriptions, the Customer Administrator shall submit a “Change Order” to the Order Form in a form acceptable to the Parties. Enmark shall make the SaaS Service available to the additional Users on the terms and conditions set forth in this Agreement and each signed Order Form or Change Order. Unless otherwise specified in the relevant Order Form (as changed) (a) additional User subscriptions must be added in minimum increments of five (5) units unless Enmark agrees otherwise in the Change Order; (b) the term of any additional User subscriptions shall be coterminous with expiration of the original Subscription Period; and (c) the fee for the additional User subscriptions shall be prorated as for the Subscription Period as specified on the Change Order, and thereafter, at a rate mutually agreed to in writing. Customer acknowledges that revisions to the configured APIs in the Implementation Version or the addition of new APIs to the Implementation Version of the SaaS Service will require a separate SOW or Change Order.
1.3 Services Obligations.
(a) Enmark Responsibilities. Enmark shall: (i) in addition to its confidentiality obligations under this Agreement, not use, edit or disclose Customer Data; (ii) ensure that the SaaS Service performs in material accordance with the Enmark support documentation; (iii) work diligently to resolve any errors or issues with the SaaS Service that are reported to Enmark’s support services team; and (iv) use commercially reasonable efforts to make the SaaS Service available 24/7 (24 hours a day, 7 days a week), except for (A) planned down time, which shall be any period outside of normal business hours for which Enmark gives 8 hours or more notice that the Service will be unavailable; (B) down time caused by circumstances beyond Enmark’s reasonable control, including without limitation, acts of God, acts of government, war, flood, fire, earthquakes, civil unrest/riots, acts of terror, strikes or other labor problems, telecommunications network or electrical failures, delays involving hardware or software not within Enmark’s possession or control or Customer network intrusions or denial of service attacks. Notwithstanding the foregoing, Enmark shall have no liability for any functional warranty, Service Level Commitment or down time associated with the Customer-maintained elements, including but not limited to any Customer systems connected via an API, or related to data modeling or data quality.
(b) SaaS Service SLA. Enmark shall, subject to the exceptions noted in Section 1.3(a), ensure that the SaaS Service shall be operational and available for use by Customer ninety-nine percent (99%) of the Subscription Period as measured on a monthly basis (“Service Level Commitment”). Customer shall have the capability to read, write and modify data in accordance with the full functionality of the SaaS Service described in the applicable documentation during the Service Level Commitment period. Scheduled maintenance times shall be in accordance with Section 1.3(a)(iv)(A). Enmark makes no representations or warranties regarding the availability of the web service interface or any third party application. Any interruption of the SaaS Service caused by the unavailability of any third party service or data is not the responsibility of Enmark and shall not accrue against any Service Level Commitment made herein.
(c) Customer Responsibilities. Customer is responsible for all User activities that occur under Users use of the Services. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Enmark promptly of any such unauthorized use of which it becomes aware; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Services. Customer shall ensure that no Customer software to be used in conjunction with the Services uses open source code that would bind Enmark to any copyleft unbounded license requirements requiring Enmark to release Enmark Technology under terms similar to the GNU GPL.
(d) Customer Restrictions. Customer shall use the Services solely for its internal business purposes and shall not, nor permit any third party including Users, use the Services to: (i) send spam or any other form of duplicative and unsolicited messages (provided this does not apply to Customer’s marketing and promotional messages to Customer’s clients); (ii) harvest, collect, gather or assemble information or data regarding other users of the Services without their consent; (iii) transmit through or post on the Services unlawful, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material that may be harmful to minors; (iv) knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (v) knowingly interfere with or disrupt the integrity or performance of the Services or the data contained therein or attempt to gain unauthorized access to the Services, computer systems or networks related to the Services; (vi) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) from any Enmark Technology or from any other information by any means whatsoever; (vii) distribute, disclose or allow use of any of the Enmark Technology or Services in any format through any timesharing device, service bureau, network or by any other means, to or by any third party (not including Affiliates); (viii) violate the license grant noted in Section 2.2(a); (ix) create Internet “links” to or from the Services, or “frame” or “mirror” any of Enmark’s content which forms part of the Services (other than on Customers’ own internal intranets); or (x) modify or create a derivative work of the Enmark Technology or Services or any portion thereof. If Customer has requested additional use rights for the Services by using calls to existing APIs and service wrappers, Enmark will permit Customer to do this provided that such use is done in good faith for Customer’s normal business operations and provided further that Customer does not infringe Enmark Technology, the Services or Enmark IP Rights in doing so. This limitation on use includes an expressed preclusion against Customer using such APIs and service wrappers to: (A) either, directly or indirectly, develop a competitive product to Enmark Technology, the Services or Enmark IP Rights; or (B) manipulate the same to avoid payment of fees to Enmark for the Services. In addition to the foregoing, if Customer’s SaaS Service is provided through a multi-tenant platform, any act or omission of Customer or its Users which threatens other customers in the multi-tenant environment is a violation of Customer’s license grant for the SaaS Service.
1.4 Third-Party Providers. During use of the Services, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors offering their goods and/or services which are separate and apart from any Services provided by Enmark, but which may be linked through the Services. Any agreement, terms, conditions, warranties or representations associated with such activity, is solely between Customer and the applicable third-party unaffiliated with Enmark. Enmark and its licensors shall have no liability, obligation or responsibility for any such correspondence, goods/services, purchase or promotion between Customer and any such unaffiliated third-party. In the event that Enmark contracts with a third party provider (such as a payment processor), such third party provider will be solely liable for its services through its terms and any warranty for its services, provided that Enmark will retain responsibility for any Customer Data it receives from such contract third party provider under Enmark’s obligations in this Agreement for Customer Data.
2. Proprietary Rights.
2.1 Reservation of Rights. Customer acknowledges that in providing the Services, Enmark utilizes (a) the Enmark name, the Enmark logos, the Enmark domain names, the product names associated with the Services and other trademarks, (b) certain audio and visual information, documents, software and other works of authorship; and (c) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, including without limitation implementations on third party platforms as managed packages or otherwise, and other tangible or intangible technical material or information (collectively “Enmark Technology“), and that the Enmark Technology may be covered by intellectual property or proprietary rights owned or licensed by Enmark (“Enmark IP Rights“). Other than as expressly set forth in this Agreement, no license or other rights in the Enmark IP Rights are granted to the Customer and all such rights are hereby expressly reserved.
2.2 License Grants.
(a) Enmark Grant. Enmark grants Customer and its Users: (i) for SaaS Service, a worldwide, non-exclusive, non-transferable (except as provided in Section 9.7), non-sublicensable right to access and use the SaaS Service for Customer’s internal business purposes; and (ii) for any work product or deliverable provided as part of the professional services the license shall be as specified in Exhibit PS.
(b) Customer Grant. Customer grants to Enmark a non-exclusive, non-transferable (except as provided in Section 9.7), non-sublicensable license to use, copy, store, modify and display the Customer Data solely to the extent necessary to provide the Services.
2.3 Customer Data. As between Enmark and Customer, all data submitted by Customer through the SaaS Service remains the sole property of Customer. For the avoidance of doubt, Customer Data does not include any usage, system or other data created or collected by Enmark through Customer’s or Users’ use of the SaaS Service (collectively “System Data”); and such System Data is owned by Enmark. Customer Data shall be considered Confidential Information, subject to the terms of this Agreement. Notwithstanding the foregoing, in the event that Customer Data has been de-identified, Enmark is permitted to use such de-identified data for any purpose in Enmark’s sole discretion, including without limitation in the aggregate or for Enmark’s statistical and analytical assessment of Enmark Technology and the Services. Enmark may access Users’ accounts, including without limitation Customer Data, as necessary to respond to service or technical problems affecting the Services.
2.4 Suggestions, Ideas and Feedback. Enmark shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the operation of the Services to the extent it does not constitute Confidential Information of Customer.
2.5 Marketing; Press Releases. Enmark may identify Customer as a customer in its marketing materials, including the Enmark website. Customer further grants Enmark a limited, non-exclusive license to use Customer’s name, trademarks or logos as necessary to provide the Services and any Customer branded customizations thereto. Each Party retains all rights, title and interest in and to its name, trademarks or logos. Neither Party shall issue a press release referring to the other Party without the other Party’s written consent, which consent shall not be unreasonably withheld.
3. Fees & Payment.
3.1 User Fees. In consideration for the Services, Customer shall pay the fees specified in the applicable Order Form. All fees are quoted and payable in United States dollars.
(a) Subscription Fees. Unless Customer rightfully terminates for cause under Section 8.3, all subscription fees paid for the SaaS Service are non-refundable and are based on the number of Users specified in the Order Form, and are due for the entire Subscription Period. The number of User subscriptions ordered for the SaaS Service cannot be decreased during the Subscription Period, but may be modified for a renewal term. Fees for additional Users added in the middle of a billing period shall be charged a pro-rata amount for the period remaining in such billing period and going forward based on the number of months remaining in the Subscription Period.
(b) Professional Service Fees. Professional Services fees are based on the time and materials rate for professional services as may be further specified in the applicable Order Form or attached SOW.
3.2 Additional Usage Fees. Customer acknowledges that the maximum disk storage space provided to Customer for Customer Data, at no additional charge, is a cumulative amount of 100 MB per User subscription as the Parties specify in the applicable Order Form. Customer further acknowledges that the permitted maximum rate of API usage shall be as specified by the Parties in the applicable Order Form. Customer may purchase additional disk storage and/or API usage above the maximum rate specified by the Parties in the applicable Order Form at rates mutually agreed upon.
3.3 Invoicing & Payment. Enmark shall invoice Customer for subscription fees for the SaaS Service in advance (but not earlier than sixty (60) days prior to the commencement of any renewal term) and otherwise in accordance with the terms of the relevant Order Form. Enmark shall invoice Customer for professional services fees on the fee schedule specified in the applicable Order Form or attached SOW. All other invoiced amounts shall be due and payable fifteen (15) days from the date of the applicable invoice. All payments made under this Agreement shall be in United States dollars.
3.4 Overdue Payments. Any payment not received from Customer by the due date may accrue, at Enmark’s discretion, late charges at the rate of the lesser of one and a half percent (1.5%) of the outstanding balance per month or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.5 Suspension of SaaS Service. In the event Customer fails to make payment on any due date for the SaaS Service, Enmark shall have the right to suspend the SaaS Service hereunder and, if such failure to make payment has not been cured within thirty (30) days of the due date, upon written notice, Enmark may terminate this Agreement and any and all related Services hereunder.
3.6 Taxes. Enmark’s fees are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”) and Customer is responsible for payment of all Taxes, excluding only Taxes based on Enmark’s net income. If Enmark has the legal obligation to pay or collect Taxes for which Customer is responsible pursuant to this Section 3.6, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Enmark with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.7 Billing and Contact Information. Customer shall ensure that Customer Administrator maintains complete, accurate and up-to-date Customer billing and contact information at all times.
4.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party“) which the Disclosing Party designates in writing as being confidential when it discloses such information to the other Party (“Receiving Party“) or which should otherwise reasonably be understood to be confidential considering the nature of the information and/or the circumstances of disclosure, including without limitation the terms and conditions of this Agreement, Customer Data, the Enmark Technology, Enmark IP Rights, the SaaS Service, all Enmark software, innovations, marketing plans, product plans, business strategies, financial information, forecasts, personnel information, customer lists, trade secrets, the terms and conditions of this Agreement, and any oral or written communications between Customer and Enmark directly relating to Enmark’s Services to Customer. In addition, the Parties agree that any nonpublic technical or business information which the Receiving Party knows or has reason to know was confidential shall be Confidential Information. Customer Data shall be deemed Confidential Information regardless of its written designation. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (b) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (c) is received, without any confidentiality obligation, from a third party who obtained such information without any third party’s breach of any obligation owed to the Disclosing Party.
4.2 Confidentiality. The Receiving Party shall limit disclosure to those employees, contractors or agents who have a need to know and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
4.3 Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. 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 and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure.
4.4 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 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without the requirements of posting a bond, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.
5. Warranties & Disclaimers.
5.1 Warranties. Each Party represents and warrants that it has the legal power to enter into this Agreement. Enmark represents and warrants that it (a) will provide the Services in a manner consistent with general industry standards, (b) has all rights and interests necessary to grant the license(s) to Customer, (c) neither the Services nor any work product provided and licensed to Customer knowingly violates or infringes any third party’s valid United States patent, trademark, trade secret, copyright, intellectual property right or similar proprietary right, (d) that the SaaS will perform substantially in accordance with the Enmark documentation under normal use and circumstances, and (e) to the best of Enmark’s knowledge the Services contain no viruses, trap doors, trojan horses, node locks, time bombs or other harmful code or destructive elements. Enmark may use open source code with the SaaS Service, but shall not use open source code that would bind Customer or its affiliates to any copyleft unbounded license requirements requiring Customer or its affiliates to release their proprietary source code under terms similar to the GNU GPL.
5.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ENMARK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.1 Indemnification by Enmark. Subject to this Agreement, Enmark shall defend, indemnify and hold Customer and Users (collectively, “Indemnitees”) harmless against any loss, liability, expense, cost and damage (including without limitation reasonable attorneys’ fees) incurred in connection with third party claims, demands, suits, or proceedings (“Claims”) that the SaaS Service or the Indemnitee’s use thereof infringes or misappropriates the United States patent, trademark, copyright, trade secret, or any other proprietary right of the third party. Customer agrees to (i) give written notice of the Claim to Enmark; (ii) give Enmark sole control of the defense and settlement of the Claim (provided that Enmark may not settle or defend a claim unless it unconditionally releases Indemnitees of all liability); and (iii) provide to Enmark at Enmark’s cost, all reasonable assistance. Enmark shall have no obligations to Customer under this Section 6.1 to the extent such Claims arise from Customer’s or its User’s (w) breach of this Agreement, (x) Customer Data, (y) use of the SaaS Service in conjunction with Customer’s products, services, hardware or business processes when the SaaS Service would not have been infringing but for such combination use, or (z) use of a prior version of the SaaS Service when a non-infringing replacement version had been provided to Customer and could have reasonably been used by Customer to avoid infringement. Enmark reserves the right to resolve an infringement claim by procuring rights for Customer to use, modifying the SaaS Service to make it non-infringing or replacing the same with a non-infringing equivalent. The foregoing remedies constitute Customer’s sole and exclusive remedy and Enmark’s entire liability with respect to infringement.
6.2 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Enmark harmless against any loss, liability, expense, cost or damage (including without limitation reasonable attorneys’ fees) incurred in connection with Claims made or brought against Enmark by a third party alleging that the Customer Data, or the use thereof by either Party, infringes the intellectual property rights or misappropriates any patent, trademark, copyright, trade secret, or any other proprietary right of a third party; provided, that Enmark (i) promptly gives written notice of the Claim to Customer, except that any failure to provide this notice promptly only relieves Customer of its responsibility pursuant to this Section 6.2 to the extent its defense is materially prejudiced by the delay; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle such Claim unless Enmark is unconditionally released of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance. Customer shall have no obligations to Enmark under this Section 6.2 to the extent such Claims arise from Enmark’s breach of this Agreement or Customer’s use of Customer Data other than as authorized and contemplated by this Agreement.
7. Limitation of Liability.
7.1 Limitation of Liability. EXCEPT FOR CUSTOMER’S BREACH OF SECTION 1.3(d) CUSTOMER RESTRICTIONS, OR EITHER PARTY’S WILLFUL MATERIAL BREACH OF SECTION 4 CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $250,000 OR THE AMOUNTS ACTUALLY PAID BY OR DUE FROM CUSTOMER UNDER THE APPLICABLE ORDER FORM OR STATEMENT OF WORK FOR THE SERVICES DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
7.2 Exclusion of Consequential and Related Damages. EXCEPT FOR CUSTOMER’S BREACH OF SECTION 1.3(d) CUSTOMER RESTRICTIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7.3 Limitation of Action. Except for actions of non-payment or breach of either Party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either Party more than one (1) year after the cause of action has accrued.
8. Term & Termination.
8.1 Term of Agreement. This Agreement commences on the Effective Date and continues until either all User subscriptions granted in accordance with the Order Form and this Agreement have expired and/or been terminated or the Parties have otherwise terminated this Agreement under Section 8.3.
8.2 Term of User Subscriptions. User Subscriptions commence on the start date (“Subscription Effective Date”) specified in the applicable Order Form and continue for the Subscription Period specified therein.
Renewal Subscription Period. Unless one party gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for a duration equal to the duration of the Initial Subscription Period as defined in the Order Form (“Renewal Subscription Period”). Renewal Subscription Periods cannot be terminated during such Renewal Subscription Period other than for cause as described in Section 8.3 below. Written notice of non-renewal must be sent no less than sixty (60) days in advance of the end of the Subscription Period. The Renewal Subscription Period will be on the current terms and conditions of this Agreement and subject to the Renewal Fee Escalation identified in the Order Form or, if not specified in the Order Form, no greater than the higher of 7% or the then current rate of inflation. Should Customer decide not to renew this Agreement, Customer may send the notice of non-renewal to email@example.com
8.3 Termination. A Party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other Party of a material breach, provided such breach remains uncured at the expiration of the notice period, and provided further that the cure period for any non-payment is five (5) business days; or (b) if the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such filing is not withdrawn or dismissed within sixty (60) days of filing. Upon any termination for cause by Customer, Enmark shall refund Customer any prepaid fees for the period after the date of the termination and any unused professional service fees.
8.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Enmark prior to the effective date of termination.
8.5 Return of Confidential Information. Upon termination of this Agreement, each Party will promptly return to the other Party all Confidential Information, including Customer Data in the commercially reasonable format requested by Customer, and all records (in any form, format or medium) containing or relating to Confidential Information of the Disclosing Party.
8.6 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1.3(d), 2.1, 3 (only to extent applicable to payments due and owing Enmark under this Agreement prior to such expiration or termination), 4, 5.2, 6, 7, 8, and 9.
9. General Provisions.
9.1 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. It is understood and agreed that neither Party shall the authority whatsoever to bind the other Party by contract or otherwise.
9.2 No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and are not to be construed as conferring any rights on any other persons.
9.3 Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses notified by the Parties to each other by a means evidenced by a delivery receipt, by facsimile or by email. Notice shall be deemed to have been given upon (a) personal delivery; (b) the fifth business day after mailing by certified mail; (c) 48 hours after sending by confirmed facsimile; or (d) 48 hours after sending by email (confirmed delivery). Notices to Enmark shall be addressed as noted below. Notices to Customer are to be addressed as specified in the Order Form.
Enmark: Enmark Systems, Inc.
Attn: Chief Financial Officer
220 E. Huron, Ste 650
Ann Arbor, MI 48104
CUSTOMER: As specified on the Order Form
9.4 Insurance. Enmark shall maintain the following insurance during the term of this Agreement. Enmark is responsible for the requiring appropriate limits of coverage for any Subcontractors:
(a) Worker’s Compensation. Enmark shall maintain the coverage as required by law; including Employer’s liability insurance of not less than U.S. $1,000,000 per incident.
(b) Commercial General Liability. Enmark shall maintain coverage of not less than U.S. $1,000,000 per occurrence and $2,000,000 in the aggregate.
(c) Professional Liability. Enmark shall maintain coverage for errors, omissions arising out of professional services of not less than U.S. $1,000,000 per occurrence.
(d) Business Auto Liability. Enmark, to the extent services are provided at Customer’s place of business, shall maintain coverage of not less than U.S. $1,000,000 for third-party passenger and property liability for all owned and hired vehicles used in the provision of Services under this Agreement.
(e) Cyber Liability, Enmark shall maintain coverage for network security and data breach coverage of not less than U.S. $1,000,000 per occurrence and $2,000,000 in the aggregate.
Enmark will provide certificates of insurance coverage upon request by Customer.
9.5 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
9.6 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless modification or severance of any provision has a material adverse effect on a Party, in which case such Party may terminate this Agreement by notice to the other Party.
9.7 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, each Party may assign this Agreement without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section 11.6 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.8 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Michigan, without regard to its conflicts of law provisions. The Parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods. Neither Party shall be liable for any failure to perform its obligations hereunder, where such failure results from any act of God or other cause beyond such Party’s reasonable control, excluding labor disputes, provided such Party immediately notifies the other Party.
9.9 Dispute Resolution; Venue.
(a) Venue. The Parties agree to discuss in good faith any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, termination, or breach hereof (a “Dispute”). If the Parties cannot resolve a Dispute through good faith discussions, then, upon the written request of either Party, such Dispute may be asserted in a court of competent jurisdiction. The appropriate federal or state courts of the United States in the District of Michigan or Washtenaw County, Michigan shall have the exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, including as to any Enmark Technology or Enmark IP Rights. Customer hereby consent to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. All other claims may be brought in a court of competent jurisdiction.
(b) Injunctive Relief. Nothing herein shall prevent a Party from seeking injunctive relief from an appropriate court of competent jurisdiction in those circumstances where such relief is warranted to prevent irreparable injury pending the initiation or completion of resolution of the arbitration. Nothing herein shall prevent a Party from seeking enforcement of an arbitral award or court order from an appropriate court of competent jurisdiction.
In any action or proceeding to enforce its rights under this Agreement, Enmark will be entitled to recover costs and reasonable attorney’s fees.
9.10 Compliance. The Parties acknowledge that the Enmark Technology and SaaS Service are subject to any and all laws, regulations, orders or other restrictions relative to export, re-export or redistribution of the Enmark Technology that may now or in the future be imposed by the government of the United States or foreign governments. The Parties agree to comply with all such applicable laws and regulations. Each Party agrees to provide the other Party with certifications of compliance with applicable laws as necessary.
(a) Export Control Laws. Each Party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Each Party agrees to comply with all applicable U.S. export control laws, including the Export Administration Regulations (“EAR”) Part 734.2(b)(ii) for the release of controlled technology and/or software, and the International Traffic in Arms Regulations (“ITAR”), including restrictions on providing access to, or transferring, controlled technology to non-U.S. Persons in the United States. Work with Customer may involve technology controlled under the EAR and the ITAR; access to Enmark Technology and Enmark IP through the SaaS Service will be on an encrypted and controlled basis. Customer and Affiliates will ensure that no Users are provided access to any source code version of Enmark Technology and/or Enmark IP which would be deemed an “export” if such Users would not be permitted to acquire such controlled technology absent a registered license in conformance with EAR and ITAR.
(b) Foreign Corrupt Practices Act; Anti-Corruption. In connection with this Agreement, each Party represents, warrants and covenants that is and at all times has been in compliance with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, the Organization for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Except as previously disclosed to the other Party in writing, each Party represents, warrants and covenants that: (i) it has not and will not make, permit or authorize, directly or indirectly, any offer, payment, promise, gift or transfer of money, anything of value, or any financial or other advantage to any person to secure any improper advantage; (ii) it has not been and is not currently subject to any governmental or regulatory review, audit, inspection or investigation related to applicable anti-bribery laws; and (iii) it is not aware of any allegations, investigations or inquiries by any governmental authority with regard to a potential violation of applicable anti-bribery law by it or its employees or agents or persons acting on its behalf. Each Party agrees to accurately record in its books and records any and all expenses related to this Agreement. Each Party agrees that it will not permit any of its employees or agents to pay bribes in connection with its execution of its obligations under this Agreement. In the event a Party obtains credible information indicating that any of its employees or agents have paid bribes in connection with its execution of its obligations under this Agreement, such Party will promptly notify the other Party in writing.
(c) Government Acquisition. If Customer is acquiring any Enmark Technology on behalf of any unit or agency of the United States government (the “Government”), then Customer will notify Enmark in writing prior to delivery of any such materials and will obtain the Government’s agreement as follows: (i) if the Enmark Technology is being supplied to the Department of Defense (DOD), the Enmark Technology is classified as “Commercial Computer Software” and the Enmark Documentation is classified as “Commercial Computer Software Documentation”, and pursuant to DFARS Section 227.7202, the Government is acquiring only those rights specified in this Agreement; and (ii) if the Enmark Technology is being supplied to any unit or agency of the Government other than DOD, the Enmark Technology is classified as “Commercial Computer Software” and the Enmark Documentation is classified as “Commercial Computer Software Documentation”, and pursuant to FAR Section 12.212, the Government is acquiring only those rights specified in this Agreement.
(d) Data Protection Regulations. To the extent necessary to comply with applicable law, the Parties shall enter into an addendum or such additional terms that conform to the required data protection model clauses. For the avoidance of doubt, the Enmark Services are provided as a data processor and not as a data controller.
9.11 Entire Agreement and Construction. This Agreement, the Exhibits, the Order Form and any Change Order constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom it is to be asserted. In the event of any conflict between the provisions in this Agreement, Exhibit, or Order Form, the terms of this Agreement shall prevail.
Exhibit PS – Professional Services Terms
These Professional Services Terms (“Exhibit PS”) detail the terms related to the professional Services to be performed by Enmark for Customer and is an Exhibit to the Master Services Agreement (“Agreement”) by and between Enmark and Customer and shall be co-terminus with the Agreement. Any capitalized term not defined herein shall have the meaning ascribed to it in the Agreement.
1. SERVICES. Enmark agrees to perform professional services (“Services”), as specified in the SOW.
1.1. SOW. Each SOW will include the description of the Services and specify any specific personnel to perform such Services if necessary. Each SOW will become a part of and be subject to the Agreement and this Exhibit PS Changes in the scope of the Services being performed under any SOW will be made only in a writing (i.e. Change Order) signed by authorized representatives of the Parties. Customer may terminate the SOW by providing Enmark with at least fifteen (15) business days prior written notice. If Customer terminates the SOW prior to the completion of Services, then (a) Enmark shall stop all work under the SOW, and (b) Customer shall timely pay all fees for Services performed through the termination date, including any expenses incurred in anticipation of such performance. Either Party may terminate the SOW if the other Party is in breach of its obligations thereunder and fails to cure the same within thirty (30) days of notice of the breach (provided that a breach of payment is subject to only a five (5) business day cure period).
1.2. Standards. Enmark will perform Services in a professional, workmanlike manner and in accordance with accepted industry standards. If Enmark delegates performance of Services to a subcontractor, it shall ensure that such subcontractor shall perform such Services in accordance with the terms of this Exhibit PS.
1.3. Additional Services. If Customer requests that Enmark provide Services other than those outlined in the applicable SOW, those requests will be documented in a written Change Order.
2. FEES AND PAYMENT. Customer shall pay Enmark for the Services as specified below.
2.1. Fees. Customer shall pay the fees and other compensation for Services as set forth in the SOW. Enmark will submit receipts for any Expenses submitted for reimbursement as requested by Customer.
2.2. Invoices. Enmark shall invoice Customer for Services and expenses. The SOW shall specify the timing when such invoices shall be due (e.g., Net 15 after the date the invoice is received). Customer shall pay Enmark directly for properly submitted, undisputed invoices within timing period based on receipt of invoice (or as otherwise specified in the SOW).Enmark may terminate the SOW for any non-payment of fees due under the SOW, in addition to any other termination rights specified in the SOW or the Agreement.
2.3. Taxes. Charges for Professional Services hereunder do not include any direct, indirect, federal, state or foreign taxes, duties or levies of any nature, exclusive of any taxes assessed on Enmark’s net income (“Taxes”). Any Taxes required to be paid by Enmark as a result of the Professional Services rendered hereunder (other than Taxes based on Enmark’s net income) shall be billed to and paid by Customer.
3. PROTECTION OF INTERESTS.
(a) Enmark’s IP. Notwithstanding anything to the contrary in the Agreement or this Exhibit PS, Enmark will maintain ownership of all works developed, created or modified during Enmark’s performance of Services under this Exhibit PS unless Enmark expressly agrees otherwise in the SOW. For any deliverable provided to Customer under such SOW, Enmark hereby grants Customer a worldwide, limited, non-exclusive, non-transferable license to use such delivered deliverable for Customer’s internal business purposes during the Term of the Agreement. For the avoidance of doubt, this clause does not apply to any modification or derivatives of Enmark Technology, including all processes, tools, programs, methodologies, know-how and techniques related thereto; all of which shall be owned by Enmark. Customer acknowledges and agrees that Enmark shall retain sole and exclusive ownership of and all rights, title and interest in and to Enmark’s work product and to any generic, non-Customer specific know-how, concepts, techniques, methodologies, ideas, processes, models, templates, tools, utilities, routines and trade secrets that do not contain any of Customer’s Confidential Information. To the extent necessary, Customer shall and hereby does assign all rights, title and interest in and to such modifications, derivatives or development based in whole or in part on Enmark Technology (including the SaaS Service) to Enmark.
(b) Customer’s IP. Customer will maintain ownership of all Customer Data and any Customer Confidential Information provided to Enmark in order to provide Services under the SOW.
3.2. Disclaimer. Except as expressly provided for in this Exhibit PS, ENMARK MAKES NO ADDITIONAL WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR DELIVERABLE PROVIDED UNDER THE APPLICABLE SOW, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
4. INDEMNIFICATION; LIMITATION OF LIABILITY.
4.1. Indemnity. Each Party (“Provider”) shall defend and hold harmless the other Party (“Recipient”) against any third party claim arising from any information, design, specification, instruction, software, data or material furnished by the Provider (“Material”) and used by the Recipient in connection with the Professional Services that infringes a copyright, patent or other intellectual property right of a third party or misappropriates a trade secret of a third party, and will indemnify and hold harmless the Recipient from and against any loss, damage or costs (including reasonable attorney fees) incurred in connection with such third party claim, provided that: (ai) Recipient notifies Provider in writing within thirty (30) days of the claim; (b) Provider has sole control of the defense and all related settlement negotiations; and (c) Recipient provides Provider with the assistance, information and authority reasonably necessary to perform the above. Reasonable out-of-pocket expenses incurred by Recipient in providing such assistance shall be reimbursed by Provider. Notwithstanding the foregoing, Provider shall have no liability for any claim of infringement resulting from: (i) Recipient’s use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the reasonable use of a subsequent or unaltered release of the Material which was provided to Recipient; or (ii) any information, design, specification, instruction, software, data or material not furnished by Provider. In the event that some or all of the Material is held or is reasonably believed by Provider to infringe the intellectual property rights of a third party, Provider shall have the option, at its expense, to (x) modify the Material so it no longer infringes or misappropriates; (y) obtain for Recipient a license to continue using the Material; or (z) require return of the infringing or potentially infringing Material and all rights thereto from Recipient and Recipient shall be permitted to terminate the SOW for cause due to such return. The remedies specified in sub-sections (x), (y) or (z) constitute Provider’s sole obligation and Recipient’s sole remedy in the event of such infringement claim related to Recipient’s use of the Material.
4.2. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, RELIANCE, PUNITIVE OR COVER DAMAGES, OR DIRECT OR INDIRECT DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RELATING TO THE PROFESSIONAL SERVICES PROVIDED HEREUNDER. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID AND/OR DUE BY CUSTOMER UNDER THE APPLICABLE SOW FOR SUCH PROFESSIONAL SERVICES.
5.1. Cooperation. Each Party agrees to cooperate reasonably and in good faith with the other in the performance of the Professional Services and acknowledges that delays may otherwise result. Customer agrees to provide, or provide access to, the following: office accommodations, facilities, equipment, suitably configured computer equipment, assistance, cooperation, complete and accurate information and data from its officers, agents and employees, coordination onsite, online and telephonic meetings and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services.
5.2. Subcontractors. Enmark may, in its sole discretion, use third party contractors inside or outside the United States to perform any of its obligations under this Agreement, including but not limited to migration of Customer Data.