Netenrich Master Services Agreement - Enterprise

Individual service engagements to be performed under this Agreement will be defined by a Statement of Work. Statements of Work 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 Statement of Work, and if applicable, the detailed Specifications for the Services to be performed and/or the Deliverables to be developed. Each executed Statement of Work, 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 Client. If any terms of the Statement of Work conflict with the terms of this Agreement, the terms of the Statement of Work shall take precedence. Statements of Work must be executed by both parties.

Unless otherwise indicated in a Statement of Work, invoices for Services provided and expenses incurred by the Provider shall be rendered in accordance with the payment schedule included in each Statement of Work. Invoices shall be payable upon receipt and sent to the Provider’s address indicated above or in a Statement of Work.

The following Exhibits are included in this Agreement and incorporated herein by this reference:

Exhibit A: Standard Terms and Conditions

EXHIBIT A
STANDARD TERMS AND CONDITIONS

1. DEFINITIONS

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

 "Client Information" means data, materials, images and text that Client owns or is otherwise authorized to use, and/or which Client provides to Provider in digital or other readily useable format for incorporation into a Deliverable or for use in performing the Services.

 "Confidential Information" means all information not generally known to the public, relating to each party’s business, in any form, regardless of whether such information or material is marked as confidential, and includes, but is not limited to, all information known by a party to be considered confidential and proprietary by the other party or from all relevant circumstances should reasonably be assumed by Client or Provider to be confidential and proprietary to the other, including, without limitation, trade secrets, inventions, software, technical processes and formulas, development methodologies, business plans, and customer information. Confidential Information also includes any information described above which Client or Provider obtains from another party and which Client or Provider designates as Confidential Information.

"Deliverables" means all of the components set forth in each executed SOW that the Provider is expected to deliver to the Client.

“Intellectual Property Rights” means, on a worldwide basis, any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship including, without limitation, copyrights, moral rights and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, and (e) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise.

"Services" means the services to be provided by the Provider to Client as set forth in this Agreement and in each SOW and/or Change Order, including the delivery of any Deliverables.

"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 SOW of the features and functionality of a Deliverable.

 “Statement of Work” or “SOW” means a written description of the Services and/or Deliverables to be provided by Provider to Client.

2. SERVICES

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

2.2. Client’s Obligations. Client shall cooperate with Provider in the performance of the Services, and shall be responsible for providing the following:

1. 1. Client shall deliver sufficient Client Information to Provider, and perform designated tasks, to enable Provider to perform the Services in accordance with the schedule set forth in each executed SOW.
      
      
   2. Client shall designate a representative who is authorized to make binding decisions on Client’s behalf regarding the Services.
      
      
   3. Client shall be responsible for obtaining any authorizations necessary for incorporating Client Information into Deliverables.
      
      

2.3. Changes. If Client wishes to implement any changes or revisions that deviate in any material respect from the Specifications or the schedule set out in any SOW, Client shall submit a Change Order to Provider specifying in detail such changes or revisions. Provider shall review the Change Order and promptly submit to Client a written proposal for implementing such changes or revisions, including any price or schedule changes. Change Order must be executed by both parties.

2.4. Client Delays. In the event that Client has delayed Provider’s performance for any reason including, without limiting the generality of the foregoing, (i) failure to cooperate with or respond to a reasonable request of Provider, (ii) failure to timely provide the Client Information to Provider, (iii) failure of Client to meet deadlines for approval of Deliverables, or (iv) requests from Client for Change Orders, then the applicable schedule shall be deemed modified to allow Provider to deliver the Deliverables and/or perform the Services within a reasonable period from the date specified in the original SOW, in light of Client’s actions or omissions.

3. PAYMENT

3.1. Service Fee Payments. In consideration of the Services provided to Client under this Agreement, Client shall pay Provider the fees as set forth in any SOW. Such fees shall be exclusive of the Provider’s out-of-pocket costs and expenses incurred in the course of the Provider’s performance of its obligations hereunder. Payments are due thirty (30) days after the invoice date or as otherwise indicated in an SOW. Late payments for undisputed amounts may bear interest at the rate of one and one-half percent (1 ½ %) per month or part thereof, until paid in full, or the highest rate allowable under applicable law, if less. Client shall reimburse Provider for expenses incurred by Provider in the collection of undisputed fees owed, including attorneys’ fees. All payments shall be in U.S. dollars. If Client fails to make timely payments, Provider may suspend the performance of Services, withhold Deliverables and the return of Client Information, and/or terminate the applicable SOW and/or this Agreement as provided in Section ‎7 hereof. Client may make payments for the Services via a third-party marketplace through which Client has ordered the Services, and in which case Client shall be subject to the ordering and payment terms applicable to such third-party marketplace.

3.2. Reimbursable Expenses. Client shall reimburse Provider for pre-approved out‑of‑pocket costs and expenses incurred by Provider in performing the Services under this Agreement.

3.3. Taxes. Client shall pay or reimburse Provider for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance by Provider under this Agreement, excluding income taxes which may be levied against Provider.

4. OWNERSHIP RIGHT AND LICENSE

4.1. Mutual. Each party shall retain exclusive ownership of its materials, information and technology, and any derivatives thereof, including all Intellectual Property Rights therein.

4.2. License to Client Information. Client hereby grants to Provider a royalty-free, non-exclusive license to use the Client Information solely as necessary to perform its obligations under this Agreement. To the extent Client elects to include Client Information that is owned by a third-party as a component of a Deliverable, Client shall acquire, and if applicable, pay for, any licenses to such Client Information. Such licenses shall include all rights necessary for Provider to modify or otherwise utilize the Client Information in a manner consistent with Provider’s obligations under this Agreement.

5. REPRESENTATIONS, WARRANTIES & INDEMNIFICATION

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

5.2. Provider’s Non-Infringement Warranty and Indemnity. The Services as performed by the Provider shall not infringe the Intellectual Property Rights of any other person or entity. Notwithstanding the foregoing, Provider shall not be deemed to have breached the representations contained in this Section to the extent that an infringement arises from (i) Client’s employees, agents, independent contractors, or assigns having modified the Services in any manner, (ii) a Deliverable based on Specifications provided by Client, or (iii) incorporated third party materials or components, Client Information or third party components combined with a Deliverable. Provider agrees to defend, indemnify, and hold harmless Client, and its directors, officers, employees, and agents, from and against any third-party claim, demand, cause of action, debt, or liability (including reasonable attorneys’ fees) arising out of the breach of the representations in this Section ‎5.2. If Client is enjoined from using the Services due to a claim that the Services infringe a third party’s Intellectual Property Rights, Provider may modify the Services to make them non-infringing, acquire for Client the right to continue using the Services, or refund to Client the fees paid for the applicable enjoined Services, decreased in accordance with three-year straight-line depreciation.

5.3. WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND THE PROVIDER MAKES NO WARRANTIES HEREUNDER, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. THE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE FREE FROM ERROR OR THAT ALL ERRORS WILL BE CORRECTED.

5.4. Client’s Non-Infringement Warranty and Indemnity. Client represents and warrants that (i) Client owns or has the right to use and to sublicense to Provider all Client Information, and any trademarks supplied by Client and to authorize Provider to use the same in accordance with this Agreement and (ii)  the use by Provider of any Client Information in accordance with this Agreement shall not violate the Intellectual Property Rights of any third party. Subject to the conditions contained in Section ‎5.5 hereof, Client agrees to defend, indemnify, and hold harmless Provider, its parent, subsidiaries, and affiliates, and each of their respective directors, officers, employees and agents from and against any claim, demand, cause of action, debt or liability (including reasonable attorneys’ fees) arising out of the breach of this Section ‎5.4.

5.5. Conditions to Indemnity. In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim that the indemnified party believes falls within the scope of this Section ‎5. 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.

5.6. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PROVIDER SHALL NOT 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, PROVIDER’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE GREATER OF FEES DUE PROVIDER FROM CLIENT UNDER THIS AGREEMENT DURING THE PERIOD OF THREE (3) MONTHS PRIOR TO AN INITIAL CAUSE OF ACTION ARISING AND $100.  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. CONFIDENTIALITY

6.1. Non-Disclosure of Confidential Information. Client and Provider recognize that in carrying out this Agreement, they may receive, develop, or otherwise acquire Confidential Information of the other party. All Confidential Information which the parties may now possess, obtain or create during or after the work contemplated by this Agreement will be held confidential by the parties for the benefit of the other, using the same standard of care that each uses to protect its own confidential and proprietary information to prevent the disclosure of the Confidential Information, but in no event less than reasonable care. Client and Provider will not directly or indirectly reveal, report, publish or disclose such Confidential Information to any person, firm or corporation not expressly authorized by the owner of such Confidential Information to receive such Confidential Information, or use (or assist any person to use) such Confidential Information except for the benefit of the owner thereof and in the course of the work hereunder. In addition, neither Client nor Provider shall appropriate the Confidential Information to its own use, or to the use of any third party. Each party shall require that each of its independent contractors who work on or have access to the Confidential Information sign a suitable confidentiality agreement and be advised of the confidentiality and other applicable provisions of this Agreement. If the parties have entered into a separate non-disclosure agreement prior to the Effective Date, then the terms of such non-disclosure agreement shall be replaced by the terms in Section ‎6 for all purposes.

6.2. Disclosure Exceptions. The foregoing will not apply to the extent Client or Provider is required to disclose any Confidential Information by applicable law or legal process (as advised by each party’s legal counsel), nor will any information be deemed confidential that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain without violation of this Agreement by Client or Provider as the receiving party, (b) is already in Client’s or Provider’s possession as evidenced by written documents prior to the disclosure thereof by the other party, (c) is subsequently learned, without violation of this Agreement by the receiving party, from a third party not under a confidentiality obligation to the disclosing party, or (d) is developed by the receiving party without reference to the disclosing party’s Confidential Information.

6.3. GDPR Compliance. If the use, processing and/or transfer of Client Information by Provider is subject to regulation under the European Union General Data Protection Regulation (GDPR), UK-version GDPR, or the California Consumer Privacy Act (CCPA), then the parties will enter into 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. Upon execution thereof, such DPA will be deemed issued under and incorporated by reference into this Agreement.

7. TERM AND TERMINATION

7.1. Term. This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year. Thereafter, this Agreement shall renew automatically for additional one (1) year terms, unless either party provides the other party written notice of termination at least thirty (30) days prior to such renewal. Non-renewal shall not affect the term of any SOW, and the terms of this Agreement shall be deemed to continue during the term of any such SOW. Either party may terminate this Agreement at any time upon written notice if at such time there are no outstanding SOWs.

7.2. Termination for Cause. In addition to any other right or remedy provided by this Agreement or by law, each party shall be entitled to terminate this Agreement and/or any SOW for cause either (a) upon the expiration of thirty (30) calendar days following written notice to the other party of its material breach of any of its obligations under this Agreement, provided that the other party has not remedied such breach within such thirty (30) days period; or (b) if a petition in bankruptcy is filed by or against the other party and is not withdrawn within sixty (60) days, or if the other party becomes insolvent, or makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law, or if the other party discontinues its business or if a receiver is appointed for its business.

7.3. Effect of Termination. Upon termination of this Agreement, Provider shall cease performing Services and Client shall immediately pay Provider any amounts owing for Services performed or as may otherwise be required under the terms of an SOW.

7.4. 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.

8. MISCELLANEOUS

8.1. Status of Parties. Nothing contained in this Agreement nor the performance hereunder shall render the Provider, its employees or contractors to be an agent, employee, joint venturer or partner of Client. 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 the Provider or as otherwise authorized to act for or on behalf of the Provider.

8.2. Force Majeure. Except for the failure to pay any money due hereunder, any failure by Provider or Client to perform any obligation arising under or in connection with this Agreement shall be excused, if such failure shall have been caused by any act or circumstance beyond the reasonable control of a party, including, but without limiting the generality of the foregoing, any act of god, fire, flood, explosion, lightning, windstorm, earthquake, failure of machinery or equipment, shortage of materials, discontinuation of power supply, court order or governmental interference, civil commotion, riot, war, strike, epidemic/pandemic, labor disturbances or transportation difficulties.

8.3. 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.

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

8.5. 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.

8.6. Amendments. No change or modification of this Agreement shall be valid unless the same be in writing and signed by an officer of Client and Provider, respectively.

8.7. 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.

8.8. 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.

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

8.10. 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 in connection with any merger, consolidation, sale of the relevant assets or any other transaction in which more than fifty percent (50%) of the party’s voting shares are transferred.