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

"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" 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 Customer 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 Customer or Provider obtains from another party and which Customer or Provider designates as Confidential Information.

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

"Intellectual Property Rights" means, on a world-wide 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.

"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.

"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.

"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.

2. SERVICES

2.1. Performance 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.  If the Services include providing Customer with access to an online platform, then Customer may use and access such platform for Customer’s internal business purposes, in accordance with the terms of an 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. Customer’s Obligations. Customer shall cooperate with Provider in performance of the Services, and shall be responsible for providing the following:

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

2.3. 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, support or otherwise.

2.4. 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.

2.5. Customer Delays. In the event that Customer 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 Customer Information to Provider, (iii) failure of Customer to meet deadlines for approval of Services, or (iv) requests from Customer for Change Orders, then the applicable schedule shall be deemed modified to allow Provider to perform the Services within a reasonable period from the date specified in the original Order, in light of Customer’s actions or omissions.

3. PAYMENT

3.1. Service Fee Payments. In consideration of the Services provided to Customer under this Agreement, Customer shall pay Provider the fees as set forth in any Order. Fees may be structured based upon a subscription, project or as otherwise set forth in an Order. Such fees shall be exclusive of Provider’s out-of-pocket costs and expenses incurred in the course of Provider’s performance of its obligations hereunder.  Payments are due thirty (30) days after invoice date or as otherwise indicated in an Order. 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. Customer 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 Customer fails to make timely payments, Provider may suspend the performance of Services, withhold the return of Customer Information, and/or terminate the applicable Order and/or this Agreement as provided in Section ‎7 hereof.  Customer may make payments for the Services via a third party marketplace through which Customer has ordered the Services, and in which case Customer shall be subject to the ordering and payment terms applicable to such third party marketplace.

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

3.2. Taxes. Customer 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. If any payments are subject to withholding taxes, then the amount of the invoice will be deemed increased so that the amount to be paid by Customer to Provider equals the original invoiced amount.

4. OWNERSHIP RIGHTS 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 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 solely as necessary to perform its obligations under this Agreement.  Such license shall include all rights necessary for Provider to modify or otherwise utilize the Customer Information in a manner consistent with Provider’s obligations under this Agreement.

4.3. Provider Proprietary Rights. To the extent that the Services include or provide access to any of Provider’s proprietary materials or components, then Customer shall not (and shall not permit others to) do the following with respect to the Services: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share, operate as a service bureau, or otherwise make any of it available for access by third parties; (ii) access the Services for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services; (iii) disassemble, reverse engineer, or decompile the Services; (iv) copy, create derivative works based on or otherwise modify the Services, (v) remove or modify a copyright, trademark, logo or other proprietary rights notice or brand labeling in the Services; (vi) publish or release any benchmarking or performance data applicable to the Services; or (vii) access or disable any Provider or third party data, software or network or perform penetration or vulnerability testing without receiving prior authorization from Provider.

4.4. Feedback. Customer may from time to time provide suggestions or comments to Provider for enhancements or improvements, new features or functionality or other feedback with respect to the Services. Provider will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Provider will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such feedback in connection with its products and services.

5. REPRESENTATIONS, WARRANTIES & INDEMNIFICATION

5.1. Mutual. Each party warrants and represents at all times that (i) it has the right and full power and authority to enter into this Agreement and each Order, (ii) it is duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, and (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder and under each Order, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound and will not violate any law to which such party is subject.

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

5.3. Provider’s Non-Infringement Warranty and Indemnity. The Services as performed by Provider shall not infringe 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) Customer’s employees, agents, independent contractors or assigns having modified the Services in any manner, (ii) Specifications provided by Customer, or (iii) incorporated or resold third party materials, components or products, Customer Information or third party components combined or used with the Services.  Provider agrees to defend, indemnify, and hold harmless Customer, 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 ‎5.3. If Customer is enjoined from using the Services due to a claim that the Services infringe a third party’s Intellectual Property Rights in breach of the foregoing warranty in this Section, Provider may modify the Services to make them non-infringing, acquire for Customer the right to continue using the Services or refund to Customer fees paid for the applicable enjoined Services as follows: (i) for Services paid for on a subscription basis, refund of any prepaid unused fees, and (ii) for Services paid for on a single-payment basis, refund of fees paid decreased in accordance with three-year straight-line depreciation. The foregoing indemnification obligation represents the sole and exclusive remedy of Customer and the entire liability and obligation of Provider with respect to infringement or claims of infringement of any intellectual property right by the Services. For clarity, the warranty and indemnification in this Section does not apply to third party services and products sold to Customer.

5.4. WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICES ARE PROVIDED “AS IS” AND 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 EXPRESS WARRANTY OF NON-INFRINGEMENT AS STATED IN SECTION ‎5.3 REMAINS IN FULL EFFECT, AND THE FOREGOING NON-INFRINGEMENT DISCLAIMER, WHICH ONLY PERTAINS TO IMPLIED WARRANTIES, SHALL NOT BE CONSTRUED TO LIMIT OR NEGATE THE EXPRESS WARRANTY. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE FREE FROM ERROR OR THAT ALL ERRORS WILL BE CORRECTED.

5.5. Customer’s Non-Infringement Warranty and Indemnity. Customer represents and warrants that (i) Customer owns or has the right to use and to sublicense to Provider all Customer Information, and any trademarks supplied by Customer and to authorize Provider to use the same in accordance with this Agreement and (ii)  the use by Provider of any Customer Information in accordance with this Agreement shall not violate the Intellectual Property Rights or privacy rights of any third party.  Subject to the conditions contained in Section ‎5.6 hereof, Customer 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 ‎5.5.

5.6. 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 ‎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.

5.7. 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, BUT SUBJECT TO SECTION ‎5.8 HEREOF, PROVIDER’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE VALUE OF FEES DUE PROVIDER FROM CUSTOMER UNDER THE APPLICABLE ORDER DURING THE PERIOD OF TWELVE (12) MONTHS PRIOR TO AN INITIAL CAUSE OF ACTION ARISING (THE “STANDARD CAP”).  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.

5.8. ENHANCED CAP. NOTWITHSTANDING THE LIMITATION OF LIABILITY SET FORTH IN SECTION ‎5.7 HEREOF, PROVIDER’S AGGREGATE LIABILITY RELATED TO ITS DATA SECURITY, DATA PRIVACY AND/OR DATA PROTECTION OBLIGATIONS UNDER THIS AGREEMENT AND/OR ANY RELATED DATA PROTECTION AGREEMENT, PRIVACY AND/OR SECURITY TERMS, AGREEMENTS AND/OR REQUIREMENTS, INCLUDING WITHOUT LIMITATION ANY INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS RELATING THERETO OR ANY CLAIMS FOR VIOLATION OF LAW RELATING THERETO, AND INCLUDING COSTS/REIMBURSEMENT ASSOCIATED WITH REMEDIATION OF A DATA BREACH, SHALL NOT EXCEED AN AMOUNT EQUAL TO TWICE THE STANDARD CAP.

5.9. FEES FOR THIRD PARTY PRODUCTS. FOR CLARITY, THE PARTIES UNDERSTAND AND AGREE THAT THE CALCULATION OF THE LIABILITY CAP IN SECTIONS ‎5.7 AND ‎5.8 DO NOT INCLUDE ANY AMOUNTS PAID BY CUSTOMER TO PROVIDER FOR THE RESALE BY PROVIDER OF ANY THIRD PARTY PRODUCTS.

6. CONFIDENTIALITY

6.1. Non-Disclosure of Confidential Information. Customer 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.  Customer 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 Customer 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 this Section ‎6 for all purposes.

6.2. Disclosure Exceptions. The foregoing will not apply to the extent Customer 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 Customer or Provider as the receiving party, (b) is already in Customer’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. 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.

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 Order, and the terms of this Agreement shall be deemed to continue during the term of any such Order. Either party may terminate this Agreement at any time upon written notice if at such time there are no outstanding Orders.

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 Order 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 Customer shall immediately pay Provider any amounts owing for Services performed or as may otherwise be required under the terms of an Order.

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 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.

8.2. Force Majeure. Except for the failure to pay any money due hereunder, any failure by Provider or Customer 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 Customer 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.