Netenrich Master Services Agreement - Enterprise

Individual service engagements to be performed under this Agreement will be defined by an Order. Orders will include a description of the Services to be provided, pricing, a milestone and payment schedule, and special terms and conditions applicable to the specific Order, and if applicable, the detailed Specifications for the Services to be performed. Each executed Order, together with the terms of this Agreement, constitutes a separate contract that will be effective as of the date signed by authorized representatives of both Provider and Customer. If any terms of the Order conflict with the terms of this Agreement, the terms of the Order shall take precedence. Orders must be executed by both parties.

Unless otherwise indicated in an Order, invoices for Services provided and expenses incurred by Provider shall be rendered in accordance with the payment schedule included in each Order. Invoices shall be due net thirty (30) days from invoice date unless stated otherwise in an Order and shall be sent to Provider’s address indicated above or in an Order.

The following Exhibit is included in this Agreement and incorporated herein by this reference:

Exhibit A: Standard Terms and Conditions

EXHIBIT A
STANDARD TERMS AND CONDITIONS

1. DEFINITIONS

"AI Features" means any artificial intelligence or machine learning capabilities included in or related to the Services.

“Change Order” means a written, mutually signed document by which Customer and Provider agree on changes, modifications or amendments to an existing Order.

"Confidential Information" refers to any non-public information about a party's business, in any format, that is considered confidential or proprietary, whether marked as such or not. This includes trade secrets, inventions, software, technical processes, business plans, customer information, and any other information that should reasonably be recognized as confidential. It also covers information received from third parties that is identified as confidential.

"Customer Information" means data, materials, images and text which Customer owns or is otherwise authorized to use, and/or which Customer provides to Provider or Provider otherwise accesses in digital or other readily useable format for use in providing the Services.

“Intellectual Property Rights” means all worldwide rights, both tangible and intangible, including (a) copyrights, (b) trademarks and trade names, (c) trade secrets, (d) patents, designs, algorithms, and industrial property, and (e) any other intellectual or industrial property rights, whether established by law, contract, or license.

“Order” means a written description of the Services to be provided by Provider to Customer and may be in the form of an order form, purchase order, statement of work, or other document agreed to by the parties.

“Platform” means the online data analytics software platform operated by Provider which uses a Software-as-a-Service model for providing Services.

"Services" means the services to be provided by Provider to Customer as set forth in this Agreement and in each Order and/or Change Order, and may include the Platform, implementation, support, analytical and engineering services.

"Specialized Services Addendum” means an addendum to this Agreement, executed by the parties, which incorporates the terms of this Agreement by reference, and describes certain specialized services offered by Provider.

"Specifications" means a description included in an Order of specific Services to be provided, when applicable.

1. SERVICES

2.1. Provision of Services. In consideration of payment by Customer of the fees set out in each executed Order, Provider shall provide the Services described in each executed Order. Modifications or changes to an Order shall be evidenced by a Change Order or a new Order executed by both parties. Orders may also reference and apply to any Specialized Services Addendum executed by the parties.

2.2. Platform Access. When the Services include access to the Platform, Provider will provision Customer with access to the Platform in accordance with the terms of the applicable Order. Customer may use and access the Platform for Customer’s internal business purposes only.

2.3. AI Features. Provider may include artificial intelligence and machine learning capabilities within the Services. Customer acknowledges and agrees that AI Features may process Customer Information to provide insights and recommendations.

2.4. Customer’s Obligations. Customer shall cooperate with Provider by: (i) providing necessary Customer Information and completing required tasks to meet the schedule in each Order; (ii) obtaining any authorizations for Provider to use Customer Information; and (iii) designating a representative authorized to make decisions on Customer’s behalf regarding the Services.

2.5. Third Party Services and Products. The Services may include certain services, as detailed in an Order, that augment third party services and products. These third party services and products may be purchased directly from the third party vendors by Customer, or at times, Customer may purchase these services and products directly from Provider. Provider gives no warranty for, and shall have no liability arising from, any such third party services and products, whether as relates to performance, indemnification, support or otherwise.

2.6. Changes. If Customer wishes to add or expand a Service or to implement any changes or revisions that deviate in any material respect from the Specifications or the schedule set out in any Order, Customer and Provider shall work to prepare a Change Order specifying in detail such changes or revisions, including any price or schedule changes. Change Order must be executed by both parties.

2.7. Customer Delays. If the Customer delays the Provider’s Services for any reason, such as: (i) not cooperating or responding to Provider’s reasonable requests, (ii) not providing required information on time, (iii) missing deadlines to approve Services, or (iv) requesting Change Orders, the schedule will be adjusted. The Provider will have a reasonable amount of additional time to complete the Services based on the delay caused by the Customer's actions or inaction.

3. ORDERS

Services under this Agreement will be outlined in an Order, which will specify the Services, pricing, payment schedule, any special terms, and, if applicable, detailed Service Specifications. Each signed Order, along with this Agreement, forms a separate contract effective from the date both parties sign. If there’s a conflict between the Order and this Agreement, the Order will take priority. Orders must be signed by both parties to be valid.

4. PAYMENT

4.1. Service Fee Payments. Customer agrees to pay Provider the fees specified in each Order, which may be based on a subscription, project, or other structure outlined in the Order. Fees are paid annually in advance and are due 30 days after the invoice date. Late payments on undisputed amounts may accrue interest at 1.5% per month or the maximum rate allowed by law, whichever is lower. Customer will also reimburse Provider for collection costs, including attorney fees, for undisputed overdue payments. All payments must be made in U.S. dollars. If payments are late, Provider may suspend Services, withhold Customer Information, or terminate the Order or Agreement per Section 8.2. If Customer orders Services through a third-party marketplace, payments will follow the marketplace’s terms.

4.2. Reimbursable Expenses. Customer shall reimburse Provider for pre-approved outofpocket costs and expenses incurred by Provider in performing the Services under this Agreement.

4.3. Taxes. Customer will pay or reimburse Provider for all taxes and duties, except Provider’s income taxes, arising from Provider’s performance under this Agreement. If withholding taxes apply, Customer will increase the payment to ensure Provider receives the full invoiced amount.

5. OWNERSHIP RIGHTS AND LICENSES

5.1. Mutual. Each party shall retain exclusive ownership of its materials, information and technology, and any derivatives thereof, including all Intellectual Property Rights therein. In particular, Provider retains exclusive ownership of all Intellectual Property Rights in the Services and Customer retains exclusive ownership of all Intellectual Property Rights in the Customer Information.

5.2. License to Customer Information. Customer hereby grants to Provider, and if necessary shall obtain for Provider, a royalty-free, non-exclusive license to use the Customer Information as necessary to perform its obligations under this Agreement and, in an anonymized form, for the purpose of improving the Services.

5.3. Restrictions. Customer shall not (and shall not allow others to): (i) share, sell, rent, or make the Services available to third parties; (ii) use the Services to develop competing products or services; (iii) reverse engineer, disassemble, or decompile the Services; (iv) copy, modify, or create derivative works from the Services; (v) remove or alter any proprietary notices or branding; (vi) publish performance data about the Services; or (vii) access or test Provider’s or third-party systems without prior approval.

5.4. License Rights. Provider retains all rights, including Intellectual Property Rights, in the Platform and Services, provided that for any configurations produced by Provider specifically for Customer during the provision of the Services, Provider hereby grants to Customer a perpetual, worldwide, royalty-free, transferable, sublicensable, and non-exclusive right and license to use such configurations for Customer’s internal business purposes. For clarity, the term “configurations” does not include any component or element of the Platform.

5.5. Reports. Any reports prepared by Provider composed of data and information that are specific to Customer’s business shall be the sole and exclusive property of Customer.

5.6. Feedback. Customer may provide feedback or suggestions for improvements to the Services. Provider may decide whether to implement these suggestions and may use them freely in its products and services without any obligation to compensate Customer.

6. REPRESENTATIONS, WARRANTIES & INDEMNIFICATION

6.1. Mutual. Each party warrants that: (i) it has the authority to enter into this Agreement and Orders, (ii) it is legally established and in good standing, and (iii) entering into and performing this Agreement will not breach any agreements or laws applicable to it.

6.2. Warranty of Performance. Provider warrants that the Services shall be provided in a professional and workmanlike manner by properly skilled personnel.

6.3. Provider’s Non-Infringement Warranty and Indemnity. Provider warrants that the Services will not infringe the Intellectual Property Rights of others. However, this warranty does not apply if the infringement is caused by: (i) modifications made to the Services by Customer’s employees, agents, contractors, or assigns, (ii) specifications provided by Customer, or (iii) third-party materials, components, or Customer Information used or combined with the Services. Provider will defend, indemnify, and hold harmless Customer and its personnel from any third-party claims, liabilities, or damages (including reasonable attorney fees) resulting from a breach of this warranty. If Customer is prohibited from using the Services due to an infringement claim, Provider will at its option either: (i) modify the Services to eliminate the infringement, (ii) secure the right for Customer to continue using the Services, or (iii) refund fees associated with the infringing Services as follows: for subscriptions, refund any unused prepaid fees; for one-time payments, refund fees reduced by three-year straight-line depreciation. This indemnity is Customer’s sole remedy for any intellectual property infringement claims related to the Services. This warranty and indemnification do not cover third-party services or products sold or provided to Customer.

6.4. Malicious Code Warranty. Provider warrants that it uses industry standard processes to scan the Platform for malicious code, including, without limitation, viruses, Trojan horses, worms, and any other software routines or code designed to (i) permit unauthorized access by third parties, or (ii) disable, erase, or otherwise harm data, software or hardware.

6.5. WARRANTY DISCLAIMER. Except as explicitly stated in this Agreement, the Services are provided "as is," without warranties of any kind. Provider disclaims all express, statutory, or implied warranties, including those of merchantability, fitness for a particular purpose, or equivalents under any law. Provider does not guarantee uninterrupted or error-free access to the Services or that all defects will be CORRECTED.

6.6. Customer’s Non-Infringement Warranty and Indemnity. Customer warrants that (i) it owns or has the right to use and sublicense all Customer Information and trademarks provided to Provider under this Agreement, and (ii) Provider’s use of such information will not infringe any third-party intellectual property or privacy rights. Customer agrees to defend, indemnify, and hold Provider and its affiliates harmless from any claims or liabilities, including attorney fees, resulting from a breach of these warranties.

6.7. Conditions to Indemnity. In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of this Section 6. The indemnified party shall, at the indemnifying party’s expense, reasonably assist in the defense of such claims, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim, and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s prior written consent, which shall not be unreasonably withheld.

6.8. LIMITATION OF LIABILITY. Notwithstanding any other provision of this agreement, BUT SUBJECT TO SECTION 6.9 HEREOF, NEITHER PARTY shall BE liablE under this agreement or otherwise for ANY FORM OF INDIRECT, consequential, exemplary, special, incidental, or punitive damages, or for loss of revenue, loss of profits, or loss of data, even if advised of the possibility of such damages. NOTWITHSTANDING ANY OTHEr PROVISION OF THIS AGREEMENT, but subject to section 6.9 hereof, EACH PARTY’S liability for any reason and upon any cause of action shall be limited to THE VALUE OF FEES paid to PROVIDER by customer under the applicable order during the period of twelve (12) months prior to an initial cause of action arising. This limitation applies to all causes of action in the aggregate, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and any other tort.

6.9. EXCLUSIONS. THE FOREGOING LIMITATIONS OF LIABILITY IN SECTION 6.8 HEREOF SHALL NOT APPLY TO: (I) A BREACH OF CONFIDENTIALITY UNDER SECTION 7 HEREOF; (II) THE INDEMNIFICATIONS FOR INTELLECTUAL PROPERTY RIGHTS UNDER SECTION 6 HEREOF; (III) A VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; OR (V) TANGIBLE PROPERTY DAMAGE OR PERSONAL INJURY RESULTING FROM A PARTY’S NEGLIGENCE.

6.10. FEES FOR THIRD PARTY PRODUCTS. FOR CLARITY, THE PARTIES UNDERSTAND AND AGREE THAT THE CALCULATION OF THE LIABILITY CAP IN SECTION 6.8 DOES NOT INCLUDE ANY AMOUNTS PAID BY CUSTOMER TO PROVIDER FOR THE RESALE BY PROVIDER OF ANY THIRD PARTY PRODUCTS.

7. CONFIDENTIALITY

7.1. Non-Disclosure of Confidential Information. Customer and Provider acknowledge that they may receive or create each other's Confidential Information during this Agreement. Both parties agree to protect this information with at least the same care they use for their own confidential information, and no less than reasonable care, to prevent unauthorized disclosure. Neither party will disclose, share, or use the other party’s Confidential Information for any purpose other than the work under this Agreement unless authorized by the owner. Both parties will ensure that their contractors who access Confidential Information sign confidentiality agreements and understand their obligations under this Agreement. If a separate non-disclosure agreement exists, its terms are replaced by this Section for disclosures made during this Agreement. The protection of Customer Information that is regulated under applicable data protection and security laws and regulations shall be subject to the terms of the DPA (defined in Section 8 hereof) in lieu of the terms of this Section.

7.2. Disclosure Exceptions. Confidential Information does not include information that: (a) is public or becomes public without a breach of this Agreement, (b) was already in the receiving party’s possession before disclosure, (c) is lawfully obtained from a third party not bound by confidentiality, or (d) is independently developed by the receiving party without using the disclosing party’s information. Confidential Information may also be disclosed if required by law or legal process, as advised by legal counsel.

8. DATA PROTECTION

The Provider’s Data Processing Addendum (DPA), as located at https://netenrich.com/legal/data-processing-addendum, as may be updated by Provider from time to time, shall govern the processing of Customer Information by Provider that is regulated under applicable data protection and security laws and regulations. The DPA shall be deemed issued under and incorporated by reference into this Agreement.

9. TERM AND TERMINATION

9.1. Term. This Agreement shall commence on the Effective Date and shall continue until terminated as provided in this Agreement. The term of this Agreement shall continue during the term of any outstanding Order. Either party may terminate this Agreement at any time upon written notice if at such time there are no outstanding Orders.

9.2. Termination for Cause. Either party may terminate this Agreement or any Order for cause if: (a) the other party materially breaches its obligations and fails to remedy the breach within 30 days of receiving written notice, or (b) the other party files for bankruptcy, becomes insolvent, assigns assets for creditors, discontinues business, or has a receiver appointed, and these conditions persist for 60 days.

9.3. Effect of Termination. Upon termination of this Agreement, Provider shall cease providing Services and Customer shall immediately pay Provider any amounts owing for Services provided or as may otherwise be required under the terms of an Order.

9.4. Survival. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.

10. INSURANCE

Provider agrees to maintain the following insurance coverage:

• General Liability Insurance of $1,000,000 per occurrence/$2,000,000 aggregate
• Professional Liability Insurance of $1,000,000 per claim
• Privacy and Security (Cyber Liability) Insurance of $5,000,000 per claim
• Umbrella or Excess Liability Insurance of $1,000,000
• Crime Insurance of $1,000,000 each loss
• Workers Compensation Insurance of the statutory minimum for all applicable state regulations and employers
• Auto Liability Insurance of $1,000,000 Combined Single Limit Hired Autos and Non-Owned Autos

11. MISCELLANEOUS

11.1. Publicity. Provider or Customer may reference its relationship with the other, including use of name and logo, in the normal course of business including general marketing activities and on its website. Neither party will issue formal press releases or other similar activities referencing the other party without the written consent of the other party. Each party will keep confidential and will not disclose to third parties the terms of this Agreement (including the fees paid hereunder) without the prior written consent of the other party.

11.2. Status of Parties. Nothing contained in this Agreement nor the performance hereunder shall render Provider, its employees or contractors to be an agent, employee, joint venturer or partner of Customer. Neither party nor any of its officers or employees shall have authority to contract for or bind the other party in any manner and shall not represent themselves as an agent of Provider or as otherwise authorized to act for or on behalf of Provider.

11.3. Force Majeure. Except for payment obligations, neither Provider nor Customer will be held responsible for failing to meet obligations under this Agreement if the failure is caused by events beyond their reasonable control. This includes, but is not limited to, natural disasters, equipment failures, power outages, government actions, civil unrest, war, strikes, pandemics, or transportation issues.

11.4. No Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall neither solicit, directly or indirectly, the employment of, nor hire (i) any of the other party’s employees, directors, officers or contractors, or (ii) persons who have been employees, directors, officers or contractors of the other party in the six (6) months prior to being solicited by or hired the other party. The restriction in this Section shall not apply to persons responding to general employment advertisements.

11.5. Notices. Notices may be sent under this Agreement by standard post, overnight mail, personal delivery, email or facsimile, and shall be effective upon verifiable receipt.

11.6. Severability. If for any reason any provision of this Agreement shall be deemed by a court of competent jurisdiction to be legally invalid or unenforceable, the validity of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law, and, in its modified form, such provision shall then be enforceable and enforced.

11.7. Entire Agreement. This Agreement is the entire agreement between the parties hereto as to the subject matter herein, and supersedes all prior written or oral negotiations, representations, warranties, statements or agreements. This Agreement may only be amended by an instrument in writing executed by all parties hereto.

11.8. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California, without reference to conflict of law principles. The parties agree that the United Nations Convention on Agreements for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from this Agreement. The parties agree that jurisdiction and venue for any matter arising out of or pertaining to this Agreement shall be proper only in the state and federal courts located in Santa Clara County, State of California.

11.9. Waivers. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the person or party against whom enforcement of such waiver is sought.

11.10. Counterparts. This Agreement may be executed in any number of counterparts, but all counterparts hereof shall together constitute but one agreement.

11.11. Assignment. Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that either party may assign this Agreement without the other party’s consent to an affiliate or to an entity that purchases substantially all of the assets or equity of the business unit of a party responsible for the performance of this Agreement.

11.12. High Risk Activity. Unless expressly set out in the Order, the Services are not designed or intended for any purpose requiring fail-safe performance, including stock trading, financial transaction processing, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or other management or operation of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical, property, or environmental damage, or other high risk activities of this nature.

11.13. Prohibited Usage. Services may be subject to export laws and regulations of the United States, and Customer represents that it is not named on any denied-party list or located in an embargoed country, under the laws of the United States, and Customer agrees to prevent any usage that violates any United States export law or regulation.