Effective Date June 6, 2016
Introduction: Consent to Terms
Subscriptions, Price Changes, Billing, Late Payments, Chargebacks, Refunds, Payment Methods & Cancellation
The Cureate Services includes Cureate Connect, a food and beverage procurement service that connects individuals and organizations looking to contract with small to mid-size food and beverage companies ("Buyers") with small to mid-size food and beverage companies looking to grow and scale their businesses ("Vendors"). Buyers desiring to use Cureate Connect must have Internet access, purchase a subscription, and provide Cureate with a current, valid and accepted method of payment (as such may be updated from time to time, "Payment Method").
Buyers have a choice of paying their subscription fees on a monthly or annual basis. Fees for monthly subscriptions are due and payable 30 calendar days following the date on the Cureate invoice ("Net 30), which will be distributed in accordance with the billing guidelines below. Fees for annual subscriptions may be eligible for a discount and are due and payable at the time of registration ("Prepaid Annual Fees").
Monthly subscriptions continue on a month-to-month basis, unless and until you cancel the subscription or Cureate terminates it. You must cancel your subscription before it renews each month, in order to avoid being billed for the next month's subscription fees. Annual subscriptions will automatically renew at midnight on the day after the current subscription expires, unless the Buyer cancels it. For example, if your annual subscription expires on May 31, and you do not go into your account to cancel it, a new 12-month subscription will begin at 12:00 a.m. on June 1.
Except for the initial subscription fee payment which is due upon sign up and creation of a Cureate Connect account, Cureate will bill the subscription fees at the beginning of the paying portion of the Buyer's subscription and each month thereafter, unless and until the subscription is cancelled. Several days before payment is due, Cureate will send an invoice to the e-mail address provided in the Buyer's profile. Subscription fees are fully earned upon payment. Cureate reserves the right to change the timing of its billing, in particular, if a Buyer's Payment Method has not successfully settled. In the event a subscription begins on a day not contained in a given month, Cureate may require payment on a day in the applicable month or such other day as we deem appropriate. For example, if you started your Cureate Connect subscription on January 31, your next payment date is likely to be February 28th, and your payment would be due on that date.
By registering for and providing or designating a Payment Method, you authorize Cureate to charge, either directly or through a third-party vendor, your designated Payment Method for any and all subscription and other fees that are unpaid 45 calendar days after the date on the Cureate invoice ("Delinquent Invoice Payments) which presents the fees and charges for payment. Such Delinquent Invoice Payments will be automated and charged at the rate for the services in effect at the time the Delinquent Invoice Payment is made.
A $35.00 per response chargeback fee, along with any collection costs and/or cancellation fees in accordance with the above cancellation policy, will be assessed to cover the cost of responding to fraudulent credit card chargebacks. If you submit a chargeback request to the card issuer twice, and the issuer rules in Cureate's favor both times, you agree that the entire amount owed shall become immediately payable and considered non-refundable.
EXCEPT FOR THE 24-HOUR PERIOD IMMEDIATELY FOLLOWING INITIAL SIGN UP, SUBSCRIPTION FEE PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, however, you will continue to have access to Cureate Connect through the end of your current billing period. At any time, and for any reason, Cureate may, in its sole discretion provide a refund, discount, or other consideration to some or all of its members ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate Cureate to provide credits in the future, under any circumstance.
You may edit your Payment Method information by visiting the Cureate Connect website and clicking on the "Your Account" link. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your account (see, "Cancellation" below), you remain responsible for any uncollected amounts and authorize Cureate to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates.
You may cancel your Cureate Connect subscription at any time, and you will continue to have access to Cureate Connect through the end of the month in which the cancellation is requested. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH SUBSCRIPTION PERIODS. To cancel, go to the "Your Account" page on the Cureate Connect website and follow the instructions for cancellation. If you cancel your subscription, your account will automatically close at the end of your current billing period.
Cureate's names and logos are trademarks or service marks ("marks") of Cureate. All rights in these marks are reserved. You may not use any marks or other logos or graphics, without Cureate's prior written consent. To request permission to use Cureate's marks, please contact us.
Users of the Cureate Services may contact us or sign up to use the Cureate Services, create a public profile for their accounts, post requests for proposal (each a "RFP"), bid on RFPs, join our mailing list, share content from our websites on social media, and post, upload, email, transmit and otherwise submit comments, messages, images and information about themselves and their businesses (collectively referred to as "User Materials"). You acknowledge that User Materials may be routed through our servers, the servers of one or more third parties, and the Internet, and may be viewed by Cureate staff and on the Cureate Services by the general public. You acknowledge that the Cureate Services, including any social networking features, forums, discussions, Contact Us page and other features are for public and not private communications.
Cureate reserve the right to screen, refuse to post, remove or edit User Materials at any time and for any or no reason in our absolute and sole discretion without prior notice, although we have no duty to do so. If we elect to screen User Materials, there may be a delay in the posting of content. If we have questions about your User Materials, we have the right, but not the duty, to contact you for further information, including, for example, to verify that you are the business owner or otherwise have the authority to post the User Materials.
You retain the copyright and other ownership rights in any User Materials that you submit on or through the Cureate Services. However, by submitting User Materials on or through the Cureate Services, you grant Cureate, other Content Providers and their respective licensees a non-exclusive, perpetual, royalty-free, worldwide, transferable license to use, copy, sublicense, modify, transmit, display, create derivative works of, host, index, cache, tag, encode, and/or adapt your User Materials in any and all media formats, channels or platforms, including digital and mobile platforms and formats, whether now known or hereafter devised, without payment and without further notice to you or request for consent. You further grant Cureate the right to contact you in connection with your User Materials and to use your name, city, state and other information that you have provided in connection with the User Materials.
Links to Third-Party Sites, Applications, Platforms and Services
The Cureate Services contain or may contain links to sites, applications, platforms and services maintained by third parties over which Cureate has no control. Cureate does not endorse the content, products or services of such sites, applications, platforms and services, or any of their operators, and Cureate is not responsible or liable for the content, availability, accuracy, quality, advertising, products, services or other materials on or available from such sites, applications, platforms and services. Cureate shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products or services available on or through such sites, applications, platforms and services.
In some cases, the Cureate Services may include certain embedded tools provided and controlled by third parties and governed by the terms and policies of the third parties. You should only use these third-party tools if you agree to their respective terms and policies.
Rules for Using the Services
By using the Cureate Services, including by registering for Cureate Connect, posting RFPs, participating in bids, using social networking features, forums and discussions, and submitting User Materials through the Cureate Services, you agree to the following rules:
- You must be at least 18 years of age to submit any User Materials or personally-identifying information on or through the Cureate Services, create a public profile, post RFPs, or bid on RFPs. If you are between the ages of 13 and 18, you may browse the Cureate Services with the consent of your parent or guardian, so long as you do not submit any User Materials. If you are under 13 years of age, please do not send any information about yourself, including your name, address or email address. If we discover that we have collected any personally-identifying information from a child under 13, we will remove that information from our database as soon as possible. If you are a business owner under the age of 18 and want to participate in the bidding process or aspects of the Cureate Services, a parent or guardian age 18 or over must establish an account and interact with the Cureate Services on your behalf.
- You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account with or without your knowledge. If you knowingly provide your login and password information to another person, your account privileges may be suspended temporarily or terminated. Cureate cannot and will not be liable for any loss or damage arising from your failure to comply with this rule.
- You can only use the Cureate Services for the purposes stated. You may not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk," "duplicates," "spam," "chain letters," "pyramid schemes," or any other forms of solicitation other than an approved RFP. You also may not use the Cureate Services for political campaigning or soliciting support for legislative or other initiatives. Cureate will perform random, periodic reviews of RFPs to ensure compliance with this provision.
- You may not use the Cureate Services for any illegal purpose including, but not limited to, conspiring to violate the law, stalking or harassing users, or uploading, posting, emailing, transmitting or otherwise making available any content or initiating communications that include information that you have no right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
- You may not submit any User Materials under a false name or a false email address. You may not impersonate another user or provide any false information about yourself or your business, including but not limited to misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present.
- You may not submit any User Materials or links to material that are libelous, defamatory, false, obscene, indecent, lewd, pornographic, violent, abusive, threatening, harassing, discriminatory, in violation of the law, harmful to children, in violation of third-party privacy rights, or that constitute hate speech or a personal attack.
- You may not submit any software or other material that contains any virus, trap door, back door, worm, Trojan horse or other harmful computer code, files, scripts, agents, programs, adware, device or other features that may access, alter, delete, damage or disable any hardware, software, information or other property of Cureate.
- You may not interfere with or disrupt the integrity or performance of the Cureate Services, any portion or contents thereof, or related systems or networks, or use the Cureate Services in any way that degrades their reliability, speed or operation, or their underlying hardware or software. In addition, you may not attempt to gain unauthorized access to the Cureate Services or related systems or networks.
- All information publicly posted or privately transmitted through the Cureate Services is the sole responsibility of the person from which such content originated. Cureate cannot guarantee the identity of any users with whom you may interact in the course of using the Cureate Services.
You agree to indemnify and hold harmless Cureate, its Content Providers and their respective officers, directors, employees, partners, and licensees from any and all claims, liabilities, costs or expenses, including reasonable attorneys' fees, and any direct, indirect, incidental, special, consequential or exemplary damages arising from (1) your breach of any of the above representations and warranties, (2) your use of the Cureate Services, (3) the User Materials you submit on or through the Cureate Services, or (4) Cureate's publication, distribution or use of such User Materials, or the authorized publication, distribution or use of your User Materials by Cureate's Content Providers, licensees, or users of the Cureate Services.
THE CUREATE SERVICES AND ANY MATERIALS, USER MATERIALS, FEATURES, OPPORTUNITIES OR PRODUCTS AVAILABLE THROUGH THE CUREATE SERVICES ARE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUREATE DOES NOT WARRANT THAT THE CUREATE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WE DO NOT MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CUREATE SERVICES OR ENDORSE, RECOMMEND, OR MAKE ANY WARRANTIES AS TO THE CONTENT, INFORMATION, MATERIALS, USER MATERIALS, FEATURES, SERVICES, OPPORTUNITES, PRODUCTS, OPINIONS, OR STATEMENTS AVAILABLE ON OR THROUGH THE CUREATE SERVICES OR THROUGH LINKS ON THE CUREATE SERVICES. CUREATE DOES NOT ASSUME ANY RESPONSIBILITY FOR PROMPT OR PROPER DELIVERY, OR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. CUREATE ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OR EXISTENCE OF ANY COMMUNICATIONS BETWEEN USERS. USE OF THE CUREATE SERVICES IS ENTIRELY AT YOUR OWN RISK. ANY BUSINESS TRANSACTIONS WHICH MAY ARISE BETWEEN USERS FROM THEIR USE OF THE CUREATE SERVICES ARE THE SOLE RESPONSIBILITY OF THE USERS INVOLVED.
CONTENT ON THE CUREATE SERVICES IS NOT INTENDED TO SUBSTITUTE FOR PROFESSIONAL ADVICE OF ANY KIND. IN PARTICULAR, NOTHING CONTAINED IN THE CURATE SERVICES IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR BUSINESS OR FINANCIAL ADVICE. ALWAYS SEEK INDEPENDENT ADVICE OF QUALIFIED BUSINESS AND FINANCIAL ADVISORS WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR BUSINESS OR FINANCIAL AFFAIRS.
Limitation of Liability
IN NO EVENT WILL CUREATE, ITS OFFICERS, DIRECTORS, EMPLOYEES OR CONTENT PROVIDERS BE LIABLE (A) FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE CUREATE SERVICES, (B) RELATING TO ANY CONTENT ON THE CUREATE SERVICES, OR (C) IN CONNECTION WITH ANY THIRD-PARTY CONTENT OR MATERIALS (INCLUDING USER MATERIALS) OR THE DEFAMATORY, INFRINGING, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT WILL CUREATE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR CONTENT PROVIDERS BE LIABLE FOR ANY AMOUNT IN EXCESS OF $100.
Right to Change Cureate Services
Cureate reserves the right to change, terminate or suspend the Cureate Services, any features of the Cureate Services, and any content or materials contained in the Cureate Services, in any way, at any time and for any reason or no reason. We also have the right to require you to cease accessing any features, content or materials of the Cureate Services.
Digital Millennium Copyright Act (DMCA) Notices: Copyright Agent
- Cureate respects the intellectual property rights of others. To the best of our knowledge, the content that appears on the Cureate Services does not infringe the copyrights of others.
- If you believe that your work has been copied in a way that constitutes copyright infringement by any content or material on the Cureate Services, please provide the following information in writing to our Copyright Agent (see 17 U.S.C. § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner.
- A description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Cureate to locate the material, like the site URL of the material.
- Information so that we can contact you, such as address, telephone number and electronic mail address.
- A statement that you (the complaining party) have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.
If you believe that Cureate improperly removed or disabled content or materials you posted, uploaded or submitted to the Cureate Services, please provide the following Counter-Notification to our Copyright Agent (see 17 U.S.C. § 512(g) for further detail):
- Your physical or electronic signature.
- A description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- Your name, address and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that you will accept service of process from the person who provided notification of the alleged infringement.
Cureate's Copyright Agent can be reached as follows:
990 Florida Ave, NW
Washington, DC 20001
Phone: (908) 642-2309
Only DMCA notices should be sent to this address. Please send other comments or questions by clicking contact us.
The Cureate Services are intended for individuals and businesses controlled, located, and operated within the United States. Cureate makes no representation that content, materials, opportunities, or products referenced or available on the Cureate Services are appropriate or available for use outside of the United States. If you access the Cureate Services from a location outside the United States, you are responsible for compliance with applicable laws, including local laws regarding online conduct and content and U.S. export laws and regulations.
Featured Product Terms of Service
Effective Date May 5, 2017
This website is operated by Cureate. Throughout the site and these Terms, the words "we", "us", and "our" refer to Cureate. Cureate offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By purchasing something from us, you engage in our "Service" and agree to be bound by the following terms and conditions ("Terms of Service", "Terms"), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, and/or merchants. "Service" refers, but is not limited to, all ecommerce transactions and related aspects (including featured product hosting) that occur through Cureate and Cureate Connect (herein after known collectively as "Cureate").
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. Where these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current website shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. Cureate reserves the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Cureate's featured product component is hosted on Stripe. They provide us with the online ecommerce platform that allows Cureate to host its vendors' featured products for sale to consumers.
Section 1 - Online Featured Product Terms
You may not use our service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including, but not limited to, copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of ecommerce-related Services.
Section 2 - General Conditions
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
Section 3 - Accuracy, Completeness, and Timeliness of Information
We are not responsible if information made available on Cureate and its vendor profiles is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. Cureate reserves the right to modify the contents of this site at any time, but has no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
Section 4 - Modifications to the Service and Prices
Prices for our featured product hosting services are subject to change without notice.
Cureate reserves the right at any time to modify the Service (or any part or content thereof) without notice at any time, or discontinue the Service pursuant to Section 16 of these Terms.
We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
Section 5 - Payment and Fulfillment
Cureate's alliance with each vendor for the distribution of the “featured product” will be pre-determined on an individual basis, to address financial obligations, fulfillment, and other aspects of the business relationship not otherwise determined by these Terms of Service. The vendor agrees to be bound by these pre-determined details for the duration of the their relationship with Cureate. Cureate will receive a 10% application fee on payments processed through the site. Vendor agrees to be wholly responsible for shipping, fulfillment and any returns to the customer for each order placed through Cureate via the Featured Product function. Vendor will also be responsible for reporting sales tax collected through the Featured Product function.
Section 6 - Products or Services
We have made every effort to accurately convey the characteristics of your products, including the nature, color, and description, in accordance with your desired description. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of your featured products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
Section 7 - Optional Tools
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
Section 8 - Third-party Links
Certain content, products and services available via our Service may include materials from third parties.
Third party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.
Cureate is not liable for any harm or damages related to the transactions made in connection with any third-party websites. Complaints, claims, concerns, or questions regarding third party services should be directed to the third party.
Section 9 - Consumer Comments, Feedback, and Other Submissions
You agree that Cureate may, but is not required to, solicit feedback on your products from its consumers for publication on our website and/or on your vendor profile. Cureate is not and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable, or violates any party’s intellectual property or these Terms of Service.
Consumers, not Cureate, are solely responsible for any comments made and their accuracy. We take no responsibility and assume no liability for any comments submitted by consumers or any third party.
Section 10 - Personal Information
Section 11 - Errors, Inaccuracies, and Omissions
Occasionally, there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice.
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
Section 12 - Prohibited Uses
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial, or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
Section 13 - Disclaimer of Warranties; Limitation of Liability
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure, or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time at our discretion.
In no case shall Cureate, our affiliates, licensors, subsidiaries, partners, officers, directors, agents, contractors, interns and/or employees, and subcontractors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation, lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Cureate’s liability shall be limited to the maximum extent permitted by law.
Section 14 - Indemnification
You agree to indemnify, defend, and hold harmless Cureate and our affiliates, licensors, subsidiaries, partners, officers, directors, agents, contractors, interns and/or employees, and subcontractors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
Section 15 - Severability
In the event that any provision of these Terms of Service is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
Section 16 - Termination
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service by notifying us that you no longer wish to use our Services for any reason, or when you cease using our site. Cureate may only terminate these Terms either for cause, or when the cessation of the business relationship is mutually agreed upon by the parties.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we may terminate this agreement for cause at any time without notice. You will remain liable for all amounts due up to and including the date of termination, and/or accordingly Cureate may deny you access to our services (or any part thereof). Cause for termination may include, but is not limited to any breach of these Terms of Service, failure to pay Cureate for its services, and/or failure to fulfill a consumer’s purchase in a timely manner.
Section 17 - Entire Agreement
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications, and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against Cureate.
Section 18 - Governing Law
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of Washington, DC.
Section 19 - Changes to Terms of Service
You can review the most current version of the Terms of Service at any time by contacting Cureate or on our website.
We reserve the right, at our sole discretion, to update, change, or replace any part of these Terms of Service through direct contact or by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
Section 20 - Contact Information
Questions about the Terms of Service should be sent to us at contact us.
Master Products & Services Agreement
1. Purpose and Structure of Agreement
1.1 - Purpose of Agreement
- Buyer desires to enter into an agreement with Seller for the provision of the Products and/or Services to Buyer by Seller.
- Seller desires to enter into an agreement with Buyer to provide the Products and/or Services to Buyer as set forth in this Master Agreement and any Orders, Exhibits, Schedules and other documents that are attached hereto and/or incorporated by reference and Seller has the trained personnel, product, business processes and systems necessary to provide such Products and/or Services to Buyer.
The purposes and objectives of Buyer and Seller for entering into this Agreement include:
- Improving and streamlining the administrative and payment processes for companies that purchase products and/or services through Buyer’s platform, Cureate Connect (the “Platform”), by having Buyer operate as a general contractor and single point of contact for customer-vendor relations that result from such purchases. Individuals and entities that register on and subscribe to the Platform to purchase products and/or services from small businesses are referred to herein as “Buyer Customers;”
- Improving and streamlining Buyer’s service and work order fulfillment processes by contracting with companies like Seller to work as subcontractors that directly deliver Products and/or Services to Buyer Customers. Individuals and entities that register to sell their products and/or services through the Platform are rereferred to herein individually as a “Vendor” and collectively as “Vendors.” Seller is a Vendor that is a party to this Agreement.
- Increasing scalability and flexibility of the Platform to meet the needs of Buyer Customers and Vendors;
- Continuing to lower the barriers to entry for Vendors that desire to do business with Buyer Customers; and
- Increasing exposure of Buyer Customers to Vendors’ products and services.
- The provisions of this Section 1.1 are intended to state the purposes and objectives of the Agreement and are not intended to alter the plain meaning of the terms and conditions of the Agreement or to require either party to undertake performance obligations not required by the Agreement. To the extent that the terms and conditions of the Agreement are unclear or ambiguous, such terms and conditions are to be interpreted and construed consistent with the purposes stated in this Section 1.1.
1.2 - Structure of Agreement
Components of the Agreement. This Agreement consists of:
- the provisions set forth in this Master Agreement and the Exhibits referenced herein; and
- any Orders executed (whether physically or electronically) by the parties pursuant to this Agreement and attached hereto and the Schedules referenced therein.
- Definitions. All capitalized terms used in this Agreement shall have the meanings set forth Exhibit 1 (Definitions). Other capitalized terms used in the Agreement are defined where they are used and have the meanings so indicated.
- Orders. The Products and/or Services to be provided by Seller under this Agreement will be set forth in individual order forms each of which will (i) describe the Products and/or Services to be provided thereunder and related subject matter, including the prices, fees and expenses to be charged for such Products and/or Services (the “Charges”), the date on which Seller is to provide the Products and/or Services (the “Commencement Date”), the date on which Seller’s obligation to provide Products and/or Services to Buyer expires ( the “Order Expiration Date”), the overall duration of the Order (the “Order Term”), and other relevant terms agreed upon by the parties; and (ii) be executed (whether physically or electronically) by both parties (each an “Order,” collectively “Orders”). Each Order shall be substantially in the form of Exhibit 2 (Form of Order), with such additions, deletions and modifications as the parties may agree. Each Order is incorporated into this Master Agreement and the applicable portions of this Master Agreement are incorporated into each Order.
- Deviations from Master Agreement, Priority. In the event of a conflict between the terms of this Master Agreement and the terms of an Order, the terms of this Master Agreement shall control, unless the Order expressly notes any deviations from the terms of this Master Agreement. In the event of a conflict between this Master Agreement and the Exhibits referenced herein, the terms of this Master Agreement shall control. In the event of a conflict between the terms of an Order and the Schedules referenced in the Order, the terms of the Order shall control. In the event of a conflict between the terms of a Change Order and the terms of this Master Agreement, any Order(s), Schedule(s) and/or Exhibit(s) to which such Change Order applies, the Change Order shall control with respect to the scope and duration of such Change Order.
2. Term of Agreement
2.1 - Term of Agreement
The Term of the Agreement will begin on the Effective Date and will terminate upon the latest expiration date provided in an active Order, unless earlier terminated or extended in accordance with the provisions of the Agreement (the “Term”). The term of each Order will be for the period set forth therein (the “Order Term”).
2.2 Extension of Services.
Buyer can request and Seller will extend the provision of Termination Assistance Services in accordance with Section 5.5 for an additional period of up to 1 year (12) months (the “Extension Period”), upon thirty (30) days’ written notice to Seller of the desired extension before the scheduled termination or expiration of its obligation to provide Products and/or Services to Buyer or upon Seller’s receipt of Buyer’s written request for an extension within thirty (30) days after the effective date of either party’s notice of termination pursuant to Section 5 of this Agreement.
3. The Products and Services
3.1 - Products and/or Services
- Duration. Starting on the Commencement Date of each Order and continuing through the end of each Order Term, Seller shall provide the products ordered by Buyer, as set forth in one or more Orders (the “Products”) and/or perform the services requested by Buyer as set forth in one or more Orders (the “Services”) and provide such Products and/or Services to Buyer in accordance with the specifications and deadlines stated in the applicable Order(s) and the Agreement.
- Responsibilities. Buyer and Seller will each perform their respective duties, obligations, and responsibilities under this Agreement. Buyer’s failure to perform one or more of its responsibilities will excuse Seller’s obligation to perform its corresponding obligation(s) under the Agreement, if Seller provides written notice to Buyer of such failure and demonstrates that: (i) Buyer’s failure was the direct cause of Seller’s inability to perform; and (ii) Seller could not have continued performance by using reasonable methods, activities and procedures. In the event of (i) and (ii), Seller will be excused from providing those Products and/or Services impacted by Buyer’s failure to perform only to the extent that, and for so long as, Buyer’s failure to perform its responsibilities prevents Seller’s performance, and provided that Seller takes reasonable steps to mitigate the effects of Buyer’s failure to perform.
3.2 - Orders
- Generally. See Section 1.2(c) and Exhibit 2 for the basic structure and content of Orders under this Agreement.
- Change Order. Buyer shall have the right to change the nature, scope, specifications and instructions as to any Products and/or Services to be provided under any Order and Seller agrees to comply with such change notices. Such changes require the parties to amend the Order by executing a Change Order. If the change results in a decrease or increase in Seller's cost or in the time of performance, if possible, an adjustment in the price and time for performance will be made, as mutually agreed upon in writing. Seller shall be conclusively deemed to have waived all claims against Buyer with respect to such change, unless Seller presents to Buyer an itemized statement of claim against Buyer within twenty (20) calendar days following the receipt of the notice of such change.
- Order Terms. The initial term of each Order shall begin on the Commencement Date for the provision of the Products and/or Services ordered thereunder and shall remain in effect until the expiration date specified in the Order. If the Commencement Date of an Order occurs on a day other than the first day of a month, Seller will bill Buyer for the pro-rata portion of the month in which Products and/or Services were provided, and the initial term will then start on the first day of the subsequent month. By way of example, if an Order with a twelve (12) month term has a Commencement Date of September 15, Buyer shall be responsible for the pro-rata recurring charges set forth in the Order (“Recurring Charges”) beginning on September 15 to September 30, and the initial term shall begin on October 1 and shall continue for a period of twelve (12) months from such date.
3.3 - Services Provided by Buyer and Third Parties
- Non-Exclusive Relationship. Seller is engaged under the Agreement on a non-exclusive basis to provide Products and/or Services hereunder. Accordingly, subject to Section 5.2(a), Buyer retains the right to provide or perform itself, or retain third parties to provide or perform, any product, service, function, responsibility, activity or task that is within the scope of the Products and/or Services or would constitute a New Product or Service.
- Seller Cooperation. To the extent Buyer provides any of the Products or performs any of the Services itself, or retains one or more third party providers to do so, Seller shall cooperate with the Buyer and/or such third-party providers, at no additional charge, as requested by Buyer from time to time. Seller’s obligations hereunder shall be subject to the third-party provider’s compliance with applicable laws, policies, standards and procedures and reasonable scheduling.
3.4 - Performance and Disaster Recovery
Seller agrees that the provision of the Products and/or Services will meet or exceed the Service Level Specifications set forth by Buyer in the Order, as well as customary quality standards and standards of performance and professionalism in its industry. Seller also agrees to have a Disaster Recovery plan to avoid unnecessary or prolonged service delays during a natural disaster or other service disruptions.
3.5 New Services
- Buyer’s Requests for New Services. During the Term, Buyer may request that Seller provide New Products and/or Services. New Products and/or Services may be activities that are performed on a continuous basis for the remainder of the Term or activities that are performed on a project basis. If after review of the Order either the product or service qualifies as an existing Product or Service, or an Additional Resource Charge or a charging mechanism exists for such a product or service, the parties will treat such product or service as an existing Product or Service and Seller will provide such product and/or service in accordance with its existing obligations and for the Charges associated with that Product and/or Service. If the product or service does not qualify as an existing Product or Service and an Additional Resource Charge or other charging mechanism does not exist for such service, then that product or service will be deemed a New Service. To request a New Service, Buyer will deliver a written request to Seller with reasonable detail regarding such product or service (the “New Service Request”).
- Seller’s Response. Within 7 days after Seller’s receipt of Buyer’s New Service Request, Seller will prepare and deliver to Buyer a written response (the “New Service Response”) describing any changes in products, services, assignment of personnel and other resources that Seller believes is required. No New Service implementation shall occur without the mutual agreement of the parties to the terms and conditions of such New Service. Any agreement of the parties with respect to New Services must be in writing, will constitute an amendment to the Agreement and shall also become a “Product” or “Service” and be reflected in a new Order hereto or in an amendment to an existing Order.
3.6 - Reports
Seller will provide those reports identified in this Agreement and in the “Reports” Schedule to each Order, and such additional reports as the parties may agree upon from time to time during the Term (collectively, “Reports”), in accordance with the requirements (including any timing requirements) set forth in the applicable Order and its accompanying Reports Schedule.
3.7 - Quantities and Delivery
Seller shall deliver the Products and/or Services at the location, on the dates and at the times specified by Buyer, unless otherwise agreed in writing by the parties. All shipments, if any, are F.O.B. Destination and shall be made with Buyer- designated carriers, and shall include all necessary documentation including, but not limited to, any documentation specified on the Order. Title and Risk of Loss to and with respect to the Products will pass from Seller to Buyer upon satisfactory delivery at the location, on the dates and at the times specified by Buyer on the Order or delivery at the shipping Destination. Seller and Buyer acknowledge and agree that time is of the essence of this Agreement.
3.8 - Quality and Inspection
Payment for the Products and/or Services delivered hereunder shall not constitute acceptance thereof. Buyer reserves the right to inspect such Products and/or Services within a reasonable time after delivery, but such inspection does not relieve Seller of its obligations under this Agreement. Buyer shall have the right in its sole discretion to reject any and all Products and/or Services that are, in its sole judgment, defective or nonconforming and the same may be returned to Seller at Seller’s expense.
3.9 - Facilities; Shared Service Facilities
- Seller shall provide the Products and/or Services at the Facilities specified in the Order. The parties shall use Change Orders to add or, change or delete Facilities.
- If Seller provides any Products and/or Services to Buyer from a facility that is shared with one or more third parties or from a facility from which Seller provides services to one or more third parties, then Seller shall develop a process, subject to Buyer’s written consent, to restrict access to Buyer’s Company Information in any such shared facilities so that Seller’s contractors and/or employees who provide products and/or services to third parties do not have access to Buyer’s Company Information.
3.10 - Malicious Code
"Malicious Code" is any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage or disrupt the operation of, permit unauthorized access to, erase, destroy or modify any software, hardware, network or other technology. Seller shall use commercially reasonable efforts to ensure that the information systems, operating environments and processes Seller uses to provide the Products and/or Services to Buyer (including information, data and other materials delivered to or on behalf of Seller to Buyer, Buyer’s customers and/or third-party providers) are free of and do not otherwise transmit any Malicious Code via the use of the Seller’s network or any products or services. If Seller does upload or otherwise introduce any Malicious Code into any Products or Services or other property of Buyer or otherwise transmits any Malicious Code via the use of the Seller’s network, products or services, Seller shall, at its sole cost and expense, promptly eliminate such Malicious Code and otherwise be responsible for and remedy any damages, losses or other adverse effects suffered by Buyer, any licensors or licensees of Buyer, and other persons or entities, resulting from such Malicious Code.
4. Invoicing and Payment
4.1 - Charges
In consideration of Seller’s provision of Products and/or Services under this Agreement, Buyer shall pay to Seller all such fees and expenses as are specified in the applicable Order(s) (collectively, “Charges”) and properly invoiced in accordance with Section 4.2. Charges set forth on any Order will remain in effect for one (1) year from the Commencement Date (as set forth in such Order). Seller shall provide sixty (60) days’ written notice to Buyer prior to changing the Charges described in such Order.
4.2 - Invoices
No later than the 25th day of each month, Seller shall submit to Buyer an invoice or invoices in reasonable detail for the Charges incurred in each month.
4.3 - Payments
All amounts due to Seller and set forth on an invoice shall be due and payable within Net 60 days of Buyer’s receipt of such invoice. Seller shall not invoice Buyer, and Buyer will not be obligated to pay, any Charges or Pass Through Charges that are not properly invoiced within 10 days after the end of the month in which such Charges were incurred. The purchase price(s) for the Products and/or Services shall include any and all taxes, duties, freight, insurance, and all other similar costs. Buyer may pay the purchase price in cash, check or via credit/purchasing card.
4.4 - Service Level Credits
If Seller fails to provide the Products and/or Services in accordance with the Service Level Specifications stated in the Order, Seller shall apply a 5% Service Level Credit against the charges owed to Seller in the month following the month in which the failure occurred. The Service Level Credit represents discounts for the reduced value of the Products and/or Services, are not liquidated damages or penalties, shall not limit or diminish any of the remedies granted to Buyer under this Agreement, including the termination rights granted to Buyer, and Buyer shall be entitled to pursue all remedies that it may have against the Seller for the event or events giving rise to such Service Level Credits. Alternatively, at its sole election, Buyer may return to Seller any Service Level Credits received and pursue such remedies as Buyer may have against Seller for the event or events giving rise to such Service Level Credits.
4.5 - Rights of Set-Off
With respect to any amount that (i) should be reimbursed to Buyer under the Agreement; or (ii) is otherwise payable to Buyer pursuant to this Agreement, Buyer may deduct the entire undisputed amount owed to Buyer against the charges otherwise payable or expenses owed to Seller under the Agreement.
4.6 - Disputed Charges/Credits
If the Buyer disputes the accuracy or applicability of a fee, expense, or credit or other financial arrangement described in this Agreement, Buyer shall notify Seller of such dispute as soon as practicable after the discrepancy is discovered. The parties will investigate and resolve the dispute as expeditiously as possible through a mutually agreed upon process. Unpaid and uncredited monies that are the subject of a good faith dispute will not be considered a basis for monetary default under, or a breach of, this Agreement.
4.7 - Taxes
- Responsibility. Except as otherwise required by law, Seller is solely responsible for remitting to the appropriate taxing authority all applicable federal, state, and local sales, use and other similar types of transfer taxes or fees, interest, and penalties levied against Seller in connection with Seller’s provision of Products and/or Services hereunder.
- Exemptions. Notwithstanding anything to the contrary in the Agreement, Buyer will not pay or reimburse Seller for any taxes related to the provision of goods or services for which Buyer provides Seller with a valid and applicable exemption certificate, multi-state benefit certificate, resale certificate, or other reasonable evidence of exemption. Seller will make all reasonable efforts to ensure that any exemption from any tax that is available to Buyer will be utilized when Seller makes any purchase on behalf of Buyer.
- Withholding Taxes. Seller shall be solely responsible for paying to any tax authority any foreign, federal, state and local taxes or fees which are imposed against Buyer on or by reference to gross or net income or receipts and are required by law to be withheld by Buyer from payments to Seller under the Agreement. Buyer shall provide notice to Seller of any assertion of withholding tax liability by any tax authority and shall make available to Seller on a timely basis valid evidence of any withholding tax paid by Buyer to such tax authority.
- Cooperation. The parties agree to reasonably cooperate with each other to enable each to more accurately determine its own tax liabilities and to minimize such taxes incurred in connection with the Agreement to the extent legally possible.
4.8 - Inspection and Audit
Seller shall retain all books and records and other documentation related to its provision of the Products and/or Services under this Agreement and for a period of three (3) years following the date of expiration or termination of this Agreement. During the Term and the twelve (12) months immediately following the effective date of expiration or termination of this Agreement, Buyer and/or its designee shall have the right, upon at least five (5) business days’ notice to Seller and during Seller’s normal business hours to inspect and audit all Seller’s books and records and other documentation, systems, technology and facilities that are relevant to ascertaining Seller’s compliance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, Seller shall cooperate in good faith with Buyer and/or its designee to facilitate Buyer’s exercise of its rights under this Section 4.8. If any inspection or audit reflects that Seller is not in compliance with the terms or conditions of this Agreement, Seller shall, at its sole cost and expense promptly remedy such non-compliance.
5. Termination and Cancellation
5.1 - By its terms
Seller shall cease providing Products and/or Services to Buyer on the effective date of expiration or termination of any Order and cease providing any and all Products and/or Services to Buyer no later than the effective date of expiration or termination of this Agreement.
5.2 - By Buyer
Buyer may terminate this Agreement or any Order whole or in part for any of the following reasons:
- Convenience. For Buyer’s sole convenience with respect to any part of the Products and/or Services upon providing Seller with thirty (30) days’ advanced written notice of such termination; or
- Material Breach. Buyer shall notify Seller of any material breach of this Master Agreement and/or any Order. Seller has thirty (30) business days following the date Seller receives the notice of material breach from Buyer to cure such material breach(s). If Seller fails to cure the material breach(s) within the designated time period, this Master Agreement and/or the Order to which the notice of breach applies shall terminate; or
- Insolvency. Buyer may terminate this Agreement upon thirty (30) days’ written notice to Seller, if Seller or any Affiliate or subcontractor of Seller providing or performing a material portion of the Products and/or Services becomes insolvent, is unable to pay its debts, or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or similar federal or state laws of the United States or transfers all or substantially all of its assets to another person or entity; or
- Change of Control of Seller. If there is a Change of Control of Seller, or if Seller acquires one of Buyer’s competitors, Buyer may terminate the Agreement upon sixty (60) days prior written notice to Seller given not later than one hundred eighty (180) days after change in control or acquisition; or
- Force Majeure Failure. Under the circumstances set forth in Section 15.3; or
- Operation of Law. If new laws or regulations are implemented or the laws and/or regulations applicable to this Agreement are changed or repealed such that this Agreement or any portion hereof becomes unenforceable or illegal, Buyer may terminate this Master Agreement or any Order in compliance with such laws and/or regulations. In the event of a partial termination of any Order, Buyer shall provide Seller with written notice of its intent to so terminate and specify a termination date that is at least 30 days following the date of the termination notice, and Seller shall adjust the affected Order by removing the charges for the portion of the Products and/or Services that were terminated and adjusting any other terms that were affected by the partial termination of such Products and/or Services.
5.3 - By Seller
Seller may terminate the Agreement for cause if Buyer does not pay material undisputed amounts within 60 days of the date on which they are due, provided that Seller notifies Buyer of such past due amounts within 15 days of the date on which such amounts were due and an additional written notice within 30 days of the date on which such amounts were due. For these purposes, material undisputed amounts shall mean an amount equal to at least 50% for material amount unpaid.
5.4 - Termination Charges
- Upon Termination for Convenience. If the Buyer terminates the Agreement for convenience pursuant to Section 5.2(c), Buyer shall pay Seller the applicable Termination Charge. In no other event shall Buyer be responsible for the payment of Termination Charges or any fee, payment or penalty of any type. The Termination Charges, if any, shall be determined in accordance with the Charges in the applicable Order, and shall be invoiced to Buyer by Seller within [insert time frame] of the effective date of termination.
- Cessation of Charges. Except as set forth in Section 5.4(a) and Section 5.5(d), Buyer shall not be obligated to pay any Charge that would otherwise accrue and be payable by Buyer pursuant to the Agreement or any Order after the effective date of the expiration or termination of the Agreement or any such Order.
5.5 - Termination Assistance Services
- Cooperation. Seller will cooperate with the Buyer to assist in the orderly transfer of the services, functions, responsibilities, tasks and operations comprising the Services and/or of the Products provided to Buyer by Seller or a Successor Seller under each Order in connection with the expiration or earlier termination of the Agreement and/or each Order for any reason, however described. The Services include Termination Assistance Services and the Termination Assistance Services shall include, but not be limited to, (i) providing the Buyer and the Buyer Representatives with the services described in the “Termination Assistance Services” Schedule to each Order and such other portions of the Products and/or Services as Buyer may request; and (ii) providing the Buyer and third parties participating in the transition activities, with reasonable access to the business processes, materials, equipment, software and other resources (including human resources) used by Seller to deliver the Products and/or Services, as reasonably necessary to support the transition of the relevant Products and/or Services from Seller to performance by the Buyer or one or more Successor Sellers of functions to replace such Products and/or Services, provided however, that such third parties comply with Seller’s reasonable security and confidentiality requirements, including execution of a confidentiality agreement consistent with each of the terms hereof. Neither the Term of the Agreement nor the term of any Order shall be deemed to have expired or terminated until the Termination Assistance Services thereunder are completed.
- Commencement. Upon Buyer’s request Seller shall provide Termination Assistance Services in connection with migrating the work to another vendor commencing up to one (1) year prior to expiration, or upon and after any notice of termination or of non-renewal of the Agreement or any Order. In no event will Buyer’s holding of monies in compliance with Section 4.5 of the Master Agreement be considered a failure by Buyer to pay amounts due and payable hereunder. Further, Seller shall provide the Termination Assistance Services in accordance with this Section 5.5 even in the event of Buyer’s material breach, including an uncured payment default, with or without an attendant termination for cause by Seller, so long as Buyer pays Seller for the Termination Assistance Services in accordance with this Section 5.5.
- Duration. Termination Assistance Services shall be provided through the effective date of the expiration or termination of each Order being terminated. Upon request by Buyer, the effective date of such expiration or termination shall be extended for thirty (30) days from the date of Buyer’s request, unless otherwise agreed by the parties.
- Charges. If any Termination Assistance Services provided by Seller require the utilization of additional resources that Seller would not otherwise use in the performance of the Agreement and applicable Orders(s), but for which there is a current Baseline, Buyer will pay Seller for such usage at the then-current applicable Orders(s) charges and in the manner set forth in the applicable Order(s). If the Termination Assistance Services requires Seller to incur costs that Seller would not otherwise incur in the provision of the other Products and/or Services under the Agreement and applicable Order(s), then Seller shall notify Buyer of the identity and scope of the activities requiring that Seller incur such costs and the projected amount of the charges that will be payable by Buyer for the performance of such assistance. Upon Buyer’s authorization, Seller shall perform the assistance and invoice Buyer for such charges. Buyer shall pay Seller for authorized, additional charges incurred to provide such assistance accordance with Section 4.3 of the Master Agreement.
5.6 - Survival of Selected Provisions
- Survival. The following Sections of the Agreement shall survive the expiration or earlier termination of the Agreement or any Order: Section 4, Section 6, Section 9, Section 5.4 , Section 5.5, Section 5.6, Section 11, Section 12, Section 14 and Section 15. Upon termination or expiration of the Agreement, all rights and obligations of the parties under the Agreement shall expire, except those rights and obligations under those Sections specifically designated to survive in this Section 5.6(a).
- Claims. Except as specifically set forth in the Agreement, all claims by any party accruing prior to the expiration or termination date shall survive the expiration or earlier termination of the Agreement.
6. Covenants; Representations and Warranty
6.1 - By Buyer
- Organization; Power; Authorized Agreement; No Default. Buyer represents and warrants to Seller that, as of the Effective Date, Buyer (i) is duly organized as a limited liability company in good standing under the laws of the District of Columbia, (ii) has full power to enter into and perform its obligations and exercise its rights under this Agreement, (ii) will comply with all applicable laws, rules, and regulations in connection with the performance of its obligations and exercise of its rights hereunder, and (iv) will execute, duly authorize, and deliver this Master Agreement and each Order, which constitute or will constitute a valid and binding agreements enforceable against Buyer in accordance with their terms, and (v) neither Buyer’s execution and delivery of this Master Agreement or any Order, nor the consummation of the transactions contemplated therein, will violate any agreement, law or obligation to which Buyer is a party or that is otherwise applicable to Buyer.
- No Solicitation. Buyer agrees that, during the Term and for a period of twelve (12) months immediately following the later to occur of the cessation of the Termination Assistance Services or the date of termination or expiration of the Agreement, Buyer will not knowingly employ, or engage on any other basis, or solicit the employment or other engagement of, any employee, contractor, consultant or customer of Seller; provided, however, that general advertisements of employment or engagement shall not be considered a violation of the foregoing covenant. This Section 6.1(b) is limited in scope to the geographic locations and industries in which Seller provided Products and/or Services for Buyer.
- No Litigation. To Buyer’s knowledge, there is no pending or threatened action, suit, proceeding or investigation, that questions the validity of the Agreement or Buyer’s right to enter into the Agreement or any Order hereunder.
6.2 - By Seller
- Organization; Power; Authorized Agreement; No Default. Seller represents and warrants to Buyer that, as of the Effective Date, Seller (i) is duly organized, validly existing and in good standing under the business entity laws of the State of [District of Columbia, Maryland, and/or Virginia], (ii) has full power to conduct its business as currently conducted and to enter into the Agreement, (iii) will comply with all applicable laws, rules, and regulations in connection with the provision of Products and/or Services, (iv) will execute, duly authorize, and deliver this Master Agreement and each Order, which constitute or will constitute a valid and binding agreement enforceable against Seller in accordance with their terms and (v) neither Seller’s execution and delivery of this Master Agreement or any Order, nor the consummation of the transactions contemplated therein, will violate any agreement, law or obligation to which Seller is a party or that is otherwise applicable to Seller.
- Services. Seller shall render Services using personnel that have the necessary knowledge, training, skills, experience, qualifications and resources to provide and perform the Services in accordance with the Agreement, and shall render Services in a prompt, professional, diligent, and workmanlike manner, consistent with industry standards applicable to the performance of such Services.
- Products. Seller shall provide Products that conform to the specifications or other description upon which any Order is based. Such Products shall be fit and sufficient for the purpose intended, merchantable, of good material, ingredients and workmanship consistent with industry standards. The Products provided by Seller shall also conform to any statements made on the containers or labels or advertisements for such Products
Services Not to be Withheld
- Prohibition. Seller will not voluntarily refuse to provide all or any portion of the Products and/or Services in violation or breach of the terms of the Agreement and/or any Order.
- Injunctive Relief. Seller acknowledges that its refusal to provide all or any of the Products and/or Services or its abandonment of the Agreement in violation of Section 5.7(d)(i) would cause irreparable harm, the amount of which would be impossible to estimate, thus making any remedy at law or in damages inadequate. Seller therefore agrees that Buyer shall have the right to apply to any court of competent jurisdiction for and be granted an injunction compelling specific performance by Seller of its obligations under the Agreement and/or the applicable Order without the necessity of posting any bond. This right will be in addition to any other remedy available under the Agreement.
- Regulatory Approvals. Seller will timely obtain and maintain all necessary approvals, licenses and permits (required by law or otherwise) applicable to its business and the provision of the Products and/or Services.
- No Solicitation. Seller agrees that, during the Term and for a period of one (1) year after the later to occur of the cessation of the Termination Assistance Services or the date of termination or expiration of the Agreement, Seller will not knowingly employ, or engage on any other basis, or solicit the employment or other engagement of, any employee, contractor, consultant or customer of Seller; provided, however, that general advertisements of employment or engagement shall not be considered a violation of the foregoing covenant.. This Section 6.2(e) is limited in scope to the geographic locations and industries in which Seller provided Products and/or Services for Buyer.
- Data Return or Destruction.Promptly upon the expiration or earlier termination of any Order, or such earlier time as Buyer requests, Seller shall, and shall cause Seller’s subcontractors, representatives, agents and employees (collectively referred to as “Seller’s Representatives”) to, return to Buyer, or at Buyer’s request, destroy in every media each and every original and copy of all Personally Identifiable Information in Seller’s or Seller’s Representative’s possession, custody or control. Promptly following any return or alternate action taken to comply with this subsection, Seller shall provide to Buyer a completed officer’s certificate certifying that such return or alternate action occurred. In the event applicable laws or regulations do not permit Seller or any Seller Representative to comply with the delivery or destruction of the Personally Identifiable Information, Seller warrants, and shall cause any such Seller Representative to warrant, that it shall ensure the confidentiality of the Personally Identifiable Information and that it shall not process any Personally Identifiable Information disclosed by or on behalf of Buyer after termination of the applicable Order.
- No Litigation. To Seller’s knowledge, there is no pending or threatened action, suit, proceeding or investigation, that questions the validity of the Agreement or Seller’s right to enter into the Agreement or any Order or to provide any of the Products and/or Services.
6.3 - Pass-Through Warranties
In the event Seller purchases or obtains any third-party products or services for Buyer in connection with the provision of the Products and/or Services hereunder, in addition to the foregoing representations, warranties and covenants, Seller shall pass through or assign to Buyer the rights Seller obtains from the manufacturers and/or vendors of such products and services (including warranty and indemnification rights), all to the extent that such rights are assignable. To the extent that such rights are not assignable by Seller, Seller agrees that Buyer may assert or enforce any right Seller may have to enforce such representations, warranties and covenants, or if such can only be enforced by Seller under its own name, upon written request by the Buyer, Seller shall take all reasonable action requested by the Buyer to enforce such representations, warranties and covenants.
6.4 - Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY ORDER, THE PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE, SOFTWARE, HARDWARE, DELIVERABLES, WORK PRODUCT OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT.
7. Assignment and Subcontracting
7.1 - Generally
Neither this Agreement nor any interest herein may be assigned or subcontracted by Seller without the prior written consent of Buyer.
7.2 - Use of Subcontractors
- Seller’s Agreements with Subcontractors. Prior to sub-contracting any of its obligations under the Agreement, Seller shall obtain contractual assurances from each subcontractor sufficient to enable Seller to comply with the provisions of the Agreement. In addition, each subcontract hereunder shall contain provisions specifying that Seller’s subcontractor specifically agrees that Seller shall have the right to assign such subcontract to Buyer. All such contractual assurances and agreements must include a prohibition on further subcontracting or an obligation to obtain similar contractual assurances from any sub-subcontractor.
- Seller’s Responsibility. Seller shall remain primarily liable and obligated to Buyer for the timely and proper performance of all of its obligations hereunder, even if such obligations are delegated to a subcontractor that has been approved by Buyer, and for the proper and timely performance and actions of any person or entity to which it delegates or subcontracts any such obligation. Seller will be responsible for the payment of all Seller subcontractors.
8. Compliance with Buyer Policies
Buyer will, from time to time, provide to Seller a Quality Assurance policy and other policies as it deems necessary (collectively referred to as “Buyer Policies”). Seller hereby acknowledges that it has received and agrees to be bound by such Buyer Policies throughout the Term of this Agreement.
9. Confidentiality and Data
9.1 - Confidential Information
- Obligations. Subject to Section 9.2. below, each party shall treat as confidential (i) the terms and conditions of this Agreement (excluding the existence of this Agreement), (ii) all confidential or proprietary information, data and materials the receiving party may receive from the disclosing party or be given access to by the disclosing party, and (iii) personally identifiable information of individuals, and any information that may be used to track, locate or identify such individuals (including, without limitation, names, addresses, credit card numbers, account numbers, specific items ordered, and also denominations and quantities ordered by customers and aggregate customer and/or product information if any individual person can be identified from such information), which is generated by or disclosed to Seller or Seller’s Representatives in connection with the provision of the Products and/or Services, and includes such information of Buyer’s employees and of individuals who seek to obtain, obtain or have obtained products or services from Buyer and/or who have been solicited by or on behalf of the Buyer (“Personally Identifiable Information”) (collectively referred to herein as “Confidential Information”).
- Included Information. Confidential Information shall specifically include all trade secrets and other non-public information, materials, data, know-how, research, systems, plans and procedures of or relating to the disclosing party, including maps, network routes, methodologies, specifications, locations, business plans and strategies, pricing and other financial information, marketing plans, lists of existing and prospective suppliers and customers, contractual arrangements, employee information, and proprietary technologies and processes, software programs, systems, source code, specifications, inventions, designs, developments, and databases, together with compliance reports, auditor’s reports, and related work papers and records.
- Excluded Information. Notwithstanding the forgoing, Confidential Information will not include any information, data or materials (i) that the receiving party can demonstrate was lawfully received from another source with the right to furnish such information, without restriction or subject to restrictions in which it has conformed; (ii) that is or becomes generally available to the public other than as a result of the unauthorized direct or indirect acts of the receiving party; (iii) which the receiving party can demonstrate was, at the time of disclosure to it, rightfully known to it free of restriction; or (iv) which is independently developed by a party without the use of or referral to any other party’s Confidential Information.
9.2 - Non-Disclosure
Except as otherwise expressly provided in this Agreement, the receiving party shall not, and shall not permit any other person or entity to, (i) use Confidential Information for any purpose other than the performance of the receiving party’s obligations or exercise of its rights under this Agreement, or (ii) divulge such Confidential Information, without the disclosing party’s prior written consent, except to those employees and independent contractors who have a need to know such Confidential Information for purposes of carrying out the receiving party’s obligations or exercising the receiving party’s rights under this Agreement. The receiving party shall be responsible for all acts or omissions of its employees and contractors in respect of access to or use of the Confidential Information. Notwithstanding the foregoing, in the event disclosure of Confidential Information is mandated or requested by applicable laws or by an order of a court or any regulatory, governmental or law enforcement agency or other authority, each of competent jurisdiction, then, (a) if not so prohibited by a regulatory, law enforcement or other governmental authority or an order of a court of competent jurisdiction, the receiving party shall promptly notify the disclosing party of such requirement, (b) if so requested by disclosing party, the receiving party shall use good faith efforts, in consultation with the disclosing party, to secure confidential treatment of the Confidential Information to be so disclosed, and (c) the receiving party shall furnish only that portion of the Confidential Information it is legally required to disclose.
9.2 - Buyer Data
As between Buyer and Seller, all data, information and other content furnished, used, generated, uploaded, stored and/or transmitted by Buyer to Seller in connection with the performance of this Agreement, including but not limited to Buyer’s name, identity, logos, etc. (“Buyer Data”) are the exclusive property of Buyer and such information and data shall not be disclosed to others nor used for any purpose other than in accordance with this Agreement without the prior written consent of Buyer.
9.3 - Security; Security Breach
- Safeguards. Seller shall use appropriate or reasonable legal, organizational, physical, administrative and technical measures and security procedures to safeguard and ensure the security of the Buyer Data and to protect Buyer Data from unauthorized access, disclosure, duplication, use, modification or loss. In implementing such measures and procedures, Seller will use at least the same level of care (including both physical security and electronic security) to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, Buyer Data, as it employs, and Buyer employs, to avoid unauthorized access, storage, disclosure, publication, dissemination or use of their own information of a similar nature, but in no event less than a reasonable standard of care. The concept of a “reasonable standard of care” as used herein shall include compliance by Seller with all privacy laws applicable to the security (physical security and electronic access and data security), access, storage, disclosure, publication, dissemination and use of Confidential Information in Seller’s possession, as well as all privacy laws applicable to the security (physical security and electronic access and data security), access, storage, disclosure, publication, dissemination and use of Confidential Information in the Buyer’s possession.
- Security Assessment. Without limiting the generality of the foregoing, Seller’s information security policies shall provide for (i) regular assessment and re-assessment of the risks to the security of Buyer Data and systems acquired or maintained by Seller and/or Seller representatives, and (ii) protection against such risks.
- Media. Seller shall remove all Buyer Data from any media taken out of service and shall destroy or securely erase such media in a manner designed to protect against unauthorized access to or use of any Buyer Data in connection with such destruction or erasure.
- Security Breach. If Seller becomes aware of a Security Breach, Seller shall, as expeditiously as possible (considering the circumstances), notify Buyer of such Security Breach, specifying the extent to which personally identifiable information was or is reasonably believed to have been compromised or disclosed. In addition, with respect to any Security Breach resulting from or due to acts or omissions of Seller or any Seller Representative other than in accordance with the terms of the Agreement, Seller shall, at its own expense, take prompt, commercially reasonable steps to end the breach and restore security. Buyer shall make the final decision on notifying Buyer’s customers, employees, service providers and/or the general public of such Security Breach, and the implementation of the remediation plan. If a notification to a customer is required under any law or pursuant to any of Buyer’s privacy or security policies, then notifications to all customers who are affected by the same event (as reasonably determined by Buyer) shall be considered legally required. Seller shall reimburse Buyer on demand for all reasonable Notification Related Costs incurred by the Buyer arising out of or in connection with any such Security Breach resulting in a requirement for legally required notifications (as determined in accordance with the previous sentence). With respect to any Security Breach which is not due to acts or omissions of Seller or any Seller Representative other than in accordance with the terms of the Agreement, the parties shall reasonably cooperate regarding which of the foregoing or other activities may be appropriate under the circumstances, including any applicable Charges for the same.
9.7 - Data Privacy
Buyer shall be and remain the controller of the Buyer Data and other Buyer Company Information for purposes of all applicable laws relating to data privacy, personal data, transborder data flow and data protection, with rights to determine the purposes for which the Buyer Data and other information is processed, and nothing in the Agreement will restrict or limit in any way Buyer’s rights or obligations as owner and/or controller of its data and information for such purposes. As the controller of such data and other Buyer information, Buyer will direct Seller’s use of and access to the Buyer Data and other information, which shall be solely in accordance with the terms of the Agreement.
9.8 - Limitation
The covenants of confidentiality and other restrictive covenants set forth herein (a) will apply after the Effective Date to any Company Information disclosed to the receiving party before and after the Effective Date and (b) will continue and must be maintained from the Effective Date through the termination of the Products and/or Services and (i) with respect to trade secrets, until such trade secrets no longer qualify as trade secrets under applicable law; (ii) in perpetuity with respect to Confidential Information, or as long as required by applicable law; and (iii) in perpetuity with respect to Buyer Data.
9.9 - Equitable Relief
Seller party acknowledges and agrees that the violation of any of its obligations as set forth in this Section 18 would cause irreparable harm to Buyer, which harm may not be compensable solely by monetary damages, and that, therefore, in the event of an actual or threatened breach by Seller of this Section 18, Buyer shall be entitled to seek injunctive and other equitable relief, without the necessity of proving monetary damages or posting a bond or other security. Any such equitable relief granted shall be without prejudice to any other rights and remedies as Buyer may have under this Agreement.
10. Intellectual Property Rights
10.1 - Ownership of Work Product
- Work for Hire. Seller agrees to disclose and promptly furnish to Buyer any and all technical information, computer or other specifications, documentation, works of authorship or other creative works, ideas, knowledge, or data, written, oral or otherwise expressed, originated by Seller or by one or more of the Seller Representatives as a result of work performed under or in anticipation of the Agreement (“Work Product”). Buyer shall own all right, title and interest in and to the Work Product created hereunder, including all Intellectual Property Rights therein. Seller expressly acknowledges that the parties have agreed that all aspects of the Work Product and all work in process in connection therewith are to be considered “works made for hire” within the meaning of the United States Copyright Act of 1976, as amended (the “Act”), and that Buyer is to be the “author” within the meaning of such Act. All such copyrightable Work Product, as well as all copies of such Work Product in whatever medium fixed or embodied, shall be owned exclusively by Buyer at its creation, and Seller hereby expressly disclaims any interest in any of them. Buyer hereby grants to Seller a fully paid-up, non-exclusive license to use, display, copy and make Derivative Works of the Work Product solely for the purpose of providing the Products and/or Services to the Buyer under the Agreement.
- Assignment of Rights. In the event (and to the extent) that any Intellectual Property Rights in the Work Product created by Seller and/or Seller Representatives hereunder vest in Seller or any Seller Representative, or any Work Product, or part or element thereof is found as a matter of law not to be a “work made for hire” within the meaning of the Act, Seller hereby irrevocably conveys and assigns (and in the case of Work Product not yet developed, hereby covenants upon their development to irrevocably convey and assign) to Buyer the sole and exclusive right, title and interest in and to all such Work Product, including all Intellectual Property Rights therein, and all copies of any of them, without further consideration, and agrees to assist Buyer to register, and from time to time to enforce, all Intellectual Property Rights and other rights and protections relating to the Work Product created hereunder in any and all countries. Seller acknowledges, and will cause all Seller Representatives to acknowledge, that Buyer will have the right to obtain and hold in its own name the Intellectual Property Rights in and to the Work Product. Seller shall place proprietary rights notices in favor of Buyer on the Work Product at Buyer’s request.
10.2 - Pre-existing Materials
Seller shall obtain Buyer’s prior written consent prior to incorporating any inventions or materials previously made, developed or copyrighted by Seller or others, and not originated or developed hereunder (“Pre-existing Materials”) in any Work Product. If the Work Product includes Pre-existing Materials or requires the use of Pre-existing Materials, then Seller grants and agrees to grant to the Buyer a perpetual, irrevocable, worldwide, non-exclusive and royalty-free license, with the right to sublicense, to make, use, sell, have made, copy, modify, distribute, display and perform the inventions, information or other aspects of the Pre-existing Materials, but only to the extent necessary to Exploit the Work Product originated or developed as a result of the work performed under or in anticipation of the Agreement.
10.3 - Use of Buyer Marks; No Other Rights
The trademarks, trade names and logos under which the Buyer markets its goods or services, together with Buyer’s and its Affiliates’ copyrights and know-how (collectively, “Buyer Marks”) are the sole and exclusive property of the Buyer. Seller acknowledges and agrees that it does not have, and by reason of the Agreement will not acquire, any license, property right or right to use such Buyer Marks. Seller agrees that each use by Seller of the Buyer Marks shall have the prior approval of the Buyer. In addition, Seller shall comply with the Buyer’s applicable quality control standards regarding any use of the Buyer Marks. Except as expressly set forth herein with respect to Work Product or any Buyer Software (and subject to any Required Consents), Seller further acknowledges and agrees that it does not have, and by reason of the Agreement will not acquire, any license, property right or right to use any Buyer Intellectual Property Rights, including any patents that may be held by the Buyer and Buyer grants Seller no right in any such patents.
10.4 - Knowledge Capital.
The parties agree that Seller personnel providing Products and/or Services on behalf of the Buyer hereunder shall be permitted to use in the future their knowledge and skills based upon, but not disclose to any third party, Residuals. For these purposes, “Residuals” shall mean such general knowledge, know-how and experience, including processes, methods, techniques and concepts developed, conceived or acquired by Seller personnel in connection with the Products and/or Services as may be retained in the unaided memory of such personnel, but shall not: (i) include any circumstances whereby such person has intentionally memorized the information, idea, concept, methodology, process, know-how or technique for the purpose of using or disclosing it or for retaining and subsequently using or disclosing it; (ii) include any reference to, or otherwise include Company Information or Intellectual Property Rights of Buyer or a third party in a manner that would violate any of the terms of the Agreement; (iii) limit or otherwise modify Seller’s confidentiality obligations contained herein; or (iv) include any ideas, concepts, methodologies, processes, know-how or techniques to the extent such ideas, concepts, methodologies, processes, know-how or techniques, are part(s) of any product or service offering of the Buyer. Seller personnel’s ability to use Residuals as permitted herein shall not abrogate and is subject to any and all other provisions of the Agreement which would prohibit the provision of services to any third party or other activities of Seller personnel.
11.1 Liability Caps
- Seller Cap. Except as provided in Section 11.2, the liability of Seller to Buyer arising out of or resulting from the performance or non-performance by Seller and the Seller Representatives of the Products and/or Services and Seller’s obligations under the Agreement shall be limited to Direct Damages incurred by the Buyer for each event that is the subject matter of a claim or cause of action. Except as provided in Section 11.2, each Order shall contain a provision setting the cap on Seller’s aggregate liability for Direct Damages pursuant to such Order (the “Seller Direct Damages Cap”). The sum of the Seller Direct Damages Caps set forth in the Orders shall constitute Seller’s aggregate liability for Direct Damages under the Agreement (the “Seller Aggregate Direct Damages Cap”).
- Buyer Cap. Except as provided in Section 11.2, the liability of Buyer to Seller arising out of or resulting from the performance and non-performance of Buyer’s obligations under the Agreement (including the Orders) shall be limited to Direct Damages incurred by Seller for each event that is the subject matter of a claim or cause of action. Except as provided in Section 11.2, Buyer’s aggregate liability for Direct Damages under each Order shall not exceed one point five times (1.5x) the total Charges payable to Seller with respect to the specific Products and/or Services giving rise to such liability and set forth in the applicable Order during the first year of the Order Term (the “Buyer Direct Damages Cap”). The sum of the Buyer Direct Damage Caps set forth in the Orders shall constitute Buyer’s aggregate liability for Direct Damages under the Agreement (the “Buyer Aggregate Direct Damages Cap”). The Seller Direct Damages Cap and the Buyer Direct Damages Cap are herein collectively called the “Direct Damages Caps”.
- Excluded Damages. Neither party shall be liable for damages that constitute (i) loss of interest, profit or revenue of the claiming party, or (ii) incidental, consequential, punitive, multiple or indirect damages suffered by the claiming party, except as the damages described in (i) and (ii) are included as a part of the Termination Charges, the Credits, Direct Damages, or as otherwise specifically provided for in the Agreement, even if such party has been advised of the possibility of such losses or damages.
11.2 - Exclusions
The limitations on the types and amounts of damages set forth in Section 11.1 and Section 11.3 shall not apply to, and no amounts or payments made to satisfy damages, losses and other amounts described in this Section 11.2 shall be included in calculating the Seller Direct Damages Cap or the Buyer Direct Damages Cap: (i) Buyer’s failure to pay charges for the Products and/or Services that are due and payable under the Order up to the effective date of the termination of such Orders; (ii) losses covered under the party’s indemnification obligations pursuant to Section 5; (iii) losses arising from a violation of the provisions of Section 10 ; (iv) losses incurred by the Buyer caused by or arising out of the willful misconduct or gross negligence of Seller or any Seller Representative in the performance or failure of performance of its obligations under the Agreement or theft or fraud by Seller or any Seller Representative; (v) amounts payable and credits owed to Buyer by Seller under the Agreement, including Service Level Credits; (vi) losses arising from a breach by Seller of Section 6.2; (viii) losses arising from a breach by Seller of Section 6 and Section 8; (ix) losses arising from a breach of Seller of Section 5.5; (x) losses arising from damage to tangible personal or real property of the Buyer caused by acts or omissions of Seller or any Seller Representative; and (xi) amounts recoverable pursuant to Section 4.8.
11.3 - Direct Damages
Unless specifically provided to the contrary in the Agreement (including Section 11.2), neither party shall have any liability, whether based on contract, tort (including negligence), warranty, guarantee or any other legal or equitable grounds, to the other party for any damages other than Direct Damages. “Direct Damages” means actual, direct damages incurred by the claiming party.
11.4 - Remedies
- At its option, Buyer may seek all remedies available to it under law and in equity including injunctive relief in the form of specific performance to enforce the Agreement and/or actions for damages, or recover the Service Level Credits, subject to the limitations and provisions specified in this Section 11.
- Seller may seek monetary damages resulting from Buyer’s breach of its obligations under the Agreement, but Seller irrevocably agrees not to initiate any proceedings, file any action or suit in any court of competent jurisdiction or before any judicial or other authority arising under, out of, in connection with or relating to the Agreement against the Buyer or its officers, directors, employees or agents in which it seeks equitable remedies of any nature, including specific performance or injunction, except in connection with the alleged violation by such Persons of the confidentiality provisions of the Agreement or alleged infringement of Seller’s Intellectual Property Rights.
12.1 - Indemnity by Seller.
Seller will indemnify and hold harmless Buyer, its Affiliates, and the respective current, future and former officers, directors, employees, agents, successors and assigns of each of the foregoing, and each of the foregoing persons or entities (the “Buyer Indemnitees”) on demand, from and against any and all losses incurred by any of them, and shall defend the Buyer Indemnitees against all Claims arising from or in connection with:
- all Claims that any Seller Assets, Work Product, Seller Software, Products, Services or any other item, information, system, deliverable, software or service provided or used under the Agreement by Seller (or any Seller Representative), or the Buyer’s use thereof (or access or other rights thereto) in connection with the Products and/or Services, infringes or misappropriates the Intellectual Property Rights of a third party; provided, however, Seller shall have no liability or obligation to any of the Buyer Indemnitees under this Section 12.1(a) to the extent that the claim of infringement or misappropriation is caused solely by such Buyer Indemnitee’s: (i) unauthorized modification of such item; or (ii) use of such item in combination with any product or equipment not owned, developed, contemplated or authorized by Seller, except where Seller knew or should reasonably have known that such combination would be used by Buyer or such Buyer Indemnitee and did not object. If any Service, deliverable or item provided by Seller hereunder is held to constitute, or in Seller’s reasonable judgment is likely to constitute, an infringement or misappropriation, Seller will in addition to its indemnity obligations, at its expense and option, and after consultation with Buyer regarding Buyer’s preference in such event, either: (w) procure the right for Buyer Indemnitees to continue using such Product and/or Service, deliverable or item; (x) replace such Product and/or Service, deliverable or item with a non-infringing equivalent, provided that such replacement does not result in a degradation of the functionality, performance or quality of the deliverable or item; (y) modify such Product and/or Service, deliverable or item, or have such Product and/or Service, deliverable or item modified, to make it non-infringing, provided that such modification does not result in a degradation of the functionality, performance or quality of the Product and/or Service, deliverable or item; or (z) create a feasible workaround that would not have any adverse impact on the Buyer.
- all Claims by employees of Seller or any of its Affiliates or subcontractors arising out of or relating to the Agreement or the Products and/or Services, except to the extent caused by the gross negligence or willful misconduct of the Buyer or any of its Affiliates or subcontractors (but excluding Seller and the Seller Representatives from such exception);
- all Claims arising out of, resulting from or related to any act or omission of Seller in its capacity as an employer of an individual and arising out of or relating to (i) federal, state or other laws or regulations for the protection of individuals who are members of a protected class or category of individuals, (ii) sexual discrimination or harassment, and (iii) any other aspect of the employment relationship or its termination (including claims for breach of an express or implied contract of employment) which arose when the individual asserting the claim, demand, charge, actions, cause of action or other proceeding was or purported to be an employee of, or candidate for employment by, the Seller;
- all Claims related to damage to tangible or intangible personal or real property resulting from, arising out of or related to the acts of Seller or any Seller Representatives that are outside of their provision of the Products and/or Services while present on Buyer Facilities.
- all Claims for personal injuries, death or damage to tangible or intangible personal or real property, including claims of any employee of the Buyer or any Buyer Representative, to the extent caused by acts or omissions of Seller or any Seller Representatives;
- all Claims arising from a violation of any law applicable to Seller and/or any Seller Representative or to the Buyer, by Seller or any Seller Representative;
- all Claims arising from fraud or theft committed by, or the willful misconduct of, Seller or any Seller Representative;
- all Claims for Seller’s tax liabilities arising from Seller’s provision of Products and/or Services, as set forth in Section 4.7;
- all Claims arising out of the failure of Seller to obtain, or cause to be obtained, any consent or approval required for the Buyer, its customers and the Buyer Representatives to receive and use the Products and/or Services, or any component thereof, to the full extent provided in the Agreement;
- all Claims arising out of Seller’s breach of its obligations under Section 6.2 or Section 5.5 of the Agreement;
- all Claims that any personnel supplied by Seller, its Affiliates and/or their permitted subcontractors under the Agreement is an employee or agent of the Buyer, including: (i) the cost of any employee benefits Buyer is required to provide to or pay for on behalf of any personnel supplied by Seller, its Affiliates and/or their permitted subcontractors; and (ii) any Claim brought by any personnel supplied by Seller, its Affiliates and/or permitted subcontractors against any Buyer Indemnitee based upon the employer-employee relationship;
- any Claims arising out of Seller’s breach of its representations or warranties set forth in the Agreement, except pursuant to Section 6.2(d);
- all Claims arising out of or in connection with (i) Seller’s breach of its obligations under Section 9.1, 9.3 or 9.7, or (ii) any Security Breach (including all Notification Related Costs) arising due to Seller’s acts or omissions other than in accordance with the terms of the Agreement;
- all Claims arising out of Seller’s use in performing and/or providing the Products and/or Services to the Buyer of products, services or license rights under the Third Party Agreements (including any Buyer Software licensed by Buyer from a third party), to the extent due to Seller’s or any of its Affiliates’ or subcontractors’ breach of the Third Party Agreement for such products, services or license rights (including a third party’s license agreement for the Buyer Software); and
- all Claims by, or increases in the charges payable to, the third party providers under the third party agreements caused by or arising out of any breach of the Agreement by Seller or its Affiliates or subcontractors, or failure to properly and timely perform any duty or responsibility that Seller or any of its Affiliates or subcontractors has under the Agreement, except to the extent caused by any breach of the Agreement by Buyer or its Affiliates or contractors (but excluding Seller and its Affiliates and subcontractors from such exception).
12.2 - Indemnity by Buyer
Buyer will indemnify and hold harmless Seller and its Affiliates, and the respective current, future and former officers, directors, employees, agents, successors and assigns of each of the foregoing, and each of the foregoing persons or entities (the “Seller Indemnitees”) on demand, from and against any and all losses incurred by any of them and shall defend the Seller Indemnitees against all Claims arising from or in connection with:
- all Claims that any Buyer Software, or Seller’s use thereof in accordance with the terms of the Agreement, infringes or misappropriates the Intellectual Property Rights of a third party; provided, however, Buyer shall have no liability or obligation to any of the Seller Indemnitees under this Section 12.2(a) to the extent that the claim of infringement or misappropriation is caused solely by: (i) such Seller Indemnitee’s unauthorized use or modification of such item; or (ii) such Seller Indemnitee’s use of such item in combination with any product or equipment not owned, developed, contemplated or authorized by Buyer, except where Buyer knew or should reasonably have known that such combination would be used by Seller or such Seller Indemnitee and did not object;
- all Claims arising from fraud committed by, or the willful misconduct of, the Buyer or their employees; and
- all Claims for Buyer’s tax liabilities, if any, as set forth in Section 4.7.
12.3 - Indemnification Procedures
An indemnified party under this Section 12 shall promptly notify the indemnifying party of any Claim for which it seeks indemnity under this Section 12. An indemnifying party may participate, at its own expense, in the defense of such Claim. If it so elects within a reasonable time after receipt of such notice, an indemnifying party may, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expense of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying party shall not, in respect of the legal expense of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party (i) if such settlement involves any form of relief other than the payment of money or any finding or admission of any violation of any law or any of the rights of any person or has any adverse effect on any other Claims that have been or may be made against the indemnified party, or (ii) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified party of all liability on claims that are the subject of such proceeding. An indemnified party may assume control of the defense of any Claim if (i) it irrevocably waives its right to indemnity under this Section 12, or (ii) without prejudice to its full right to indemnity under this Section 12 (A) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend or provide indemnification with respect to such Claim, (B) the indemnified party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying party under the Agreement, or (C) the indemnifying party refuses or fails to timely assume the defense of such Claim.
13. Insurance and Risk of Loss
13.1 - Seller Insurance
- During each applicable Order Term, Seller and each Seller subcontractor that provides any of the Products and/or Services shall maintain and keep in force, at its own expense and without limiting its indemnity obligations as set forth in Section 12.1 of the Agreement, insurance of the types and at or above the minimum amount specified in the Order.
- Seller shall deliver, and shall cause its subcontractors providing any portion of the Products and/or Services under the Agreement to deliver, certificates of insurance verifying such coverage, in a form acceptable to Buyer, prior to the Commencement Date. Following the Commencement Date, Seller shall provide, and shall cause each of its subcontractors providing any portion of the Products and/or Services under the Agreement to provide, certificates of insurance verifying such coverage to Buyer on an annual basis and as may otherwise be requested by Buyer. Seller agrees to provide, and shall cause each of its subcontractors providing any portion of the Products and/or Services under the Agreement to provide, in a form acceptable to Buyer, renewals of such certificates of insurance upon receipt of such renewals. Receipt and/or acceptance by Buyer of any certificate of insurance that does not satisfy the coverage criteria set forth in this Section 13.1, shall not operate as a waiver of Seller’s or Seller’s subcontractors’ obligations hereunder. Seller shall provide Buyer with prompt written notice, not to exceed thirty (30) days, in the event it learns that its coverage is substantially changed, cancelled or not renewed.
- The required insurance shall be provided by insurance companies of recognized standing, authorized to do business in the jurisdictions where operations are to be performed, and that have a minimum A.M. Best Rating of [insert minimum rating]. All such policies of insurance of Seller and its subcontractors shall provide that the same shall not be canceled nor the coverage materially modified without first giving thirty (30) days prior written notice thereof to Buyer. No such cancellation or material modification shall affect Seller’s obligation to maintain the insurance coverage required by the Agreement. Seller and any subcontractors providing any portion of the Products and/or Services under the Agreement shall name the Buyer as an additional insured on all policies specified in the “Insurance” Schedule to each Order, with the exception of workers’ compensation insurance policies, if any. All liability insurance policies shall be written on an “occurrence” policy form, unless otherwise agreed in writing. The Buyer shall be named as loss payee as its interest may appear on any property insurance policies of Seller. Seller shall be responsible for payment of any and all deductibles, self-insured retentions, and self-insurance carried by Seller under its insurance program(s). The coverage afforded under any insurance policy obtained by Seller pursuant to the Agreement shall be primary with respect to Seller’s acts or omissions and not be in excess of, or contributing with, any insurance maintained by the Buyer and its assigns. Seller and its subcontractors shall not perform under the Agreement without the prerequisite insurance. Unless previously agreed to in writing by Buyer, Seller and its subcontractors shall comply with the insurance requirements herein and Seller agrees to be solely responsible for any deficiencies in the coverage, policy limits and endorsements of its subcontractors providing any portion of the Products and/or Services under the Agreement. If Seller or its subcontractors fail to comply with any of the insurance requirements herein, upon written notice to Seller by Buyer and a ten (10) day cure period, Buyer shall have the right, but not the obligation, to provide or maintain any such insurance, and to deduct the cost thereof, plus a reasonable administrative fee as designated by Buyer, from any amounts due and payable to Seller under the Agreement, or, in the event there are no such amounts due and payable, Seller shall reimburse Buyer for such costs on demand.
- Umbrella or excess liability insurance may be used to satisfy the minimum limits of coverage specified in the "Insurance" Schedule to each Order, provided, that such insurance follows the form of the primary coverage specified in the “Insurance” Schedule to each Order, exceeds the underlying policy without gaps in limits and provides coverage as broad as the underlying insurance coverage.
- The parties do not intend to shift all risk of loss to insurance. The naming of the Buyer as additional insured is not intended to be a limitation of Seller’s liability and shall in no event be deemed to, or serve to, limit Seller’s liability to Buyer to available insurance coverage or to the policy limits specified in the “Insurance” Schedule to each Order, nor to limit Buyer’s rights to exercise any and all remedies available to Buyer under contract, at law or in equity.
13.2 - Risk of Property Loss
Seller and Buyer each shall be responsible for damages to their respective tangible personal or real property (whether owned or leased), and each party agrees to look only to their own insuring arrangements (if any) with respect to such damages; provided, however, that Seller shall be responsible for damages to tangible property of the Buyer under the custody and control of Seller or any Seller Representative.
13.3 - Contravention of Insurance
Seller will not intentionally do, allow or permit anything to be done on, in or to the Products and/or Services that will affect, impair or contravene any policies of insurance that may be carried on the operations or any part thereof, or the use thereof, against loss, damage or destruction by fire, casualty, public liability, or otherwise.
13.4 - Waiver of Subrogation
To the fullest extent permitted by applicable law, Seller agrees to look solely to its insurers, and hereby releases and waives any and all rights it has now, or may have in the future, to recover against Buyer, or any of its respective trustees, beneficiaries, general or limited partners, directors, officers, agents, servants, subsidiaries, affiliates or employees (collectively, the “Releasees”) for loss or damage to personal property, and for claims of injury to, or death of, employees of Seller in any way relating to or resulting from the provision of the Products and/or Services, including claims for contribution, indemnity or reimbursement of worker’s compensation benefits. Seller hereby agrees that its insurers (and the insurers of any Seller subcontractors) shall waive all rights of subrogation with respect to claims against the Releasees arising out of the Products and/or Services. The Buyer does not assume any liability of any nature or kind for bodily injuries or property damages, or any other damages, arising out of Seller’s provision of the Products and/or Services.
14 Dispute Resolution
14.1 - Disputes in General
The parties will resolve all Disputes in accordance with the procedures described in Exhibit 3.
14.2 - Continued Performance
Except where prevented from doing so by the matter in Dispute, Seller agrees to continue performing its obligations under the Agreement while any Dispute is being resolved unless and until such obligations are terminated by the termination or expiration of the Agreement.
14.3 - Exceptions to Dispute Resolution Procedures
Notwithstanding any other provision of the Agreement, either party may resort to court action for injunctive relief at any time if, in such party’s good faith belief, the Dispute Resolution Procedures would permit or cause irreparable injury to such party or any third party claiming against such party, due to delay arising of the Dispute Resolution Procedures.
14.4 - Governing Law.
All rights and obligations of the parties relating to the Agreement shall be governed by and construed in accordance with the laws of the District of Columbia without giving effect to any choice-of-law provision or rule (whether of the District of Columbia or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Each party shall bring any suit, action or other proceeding with respect to the Agreement in a federal District Court located in the District of Columbia unless the jurisdiction of such courts is improper, in which event a party may bring such suit, action or other proceeding in any court of competent jurisdiction in the District of Columbia. Seller consents to the exclusive jurisdiction of any state or federal court empowered to enforce the Agreement located in the District of Columbia, and waives any objection thereto on the basis of personal jurisdiction or venue. The parties waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either party against the other on any matter whatsoever arising out of, or in anyway connected with, the Agreement.
15.1 - Relationship of Parties
- No Joint Venture. The Agreement (including the Orders) shall not be construed as constituting either party as partner, joint venture or fiduciary of the other party or to create any other form of legal association that would impose liability upon one party for the act or failure to act of the other party, or as providing either party with the right, power or authority (express or implied) to create any duty or obligation of the other party.
- Publicity. Each party will submit to the other party all advertising, written sales promotion, press releases and other publicity matters relating to the Agreement in which the other party’s name or marks are mentioned or language from which the connection of such name or marks may be inferred or implied, and will not publish or use such advertising, sales promotion, press releases, or publicity matters without prior written approval of the other party.
15.2 - Entire Agreement, Updates, Amendments and Modifications.
The Agreement (including all of the Orders) constitutes the entire agreement of the parties with regard to the Products and/or Services and matters addressed therein, and all prior agreements, letters, proposals, discussions and other documents regarding the Products and/or Services and the matters addressed in the Agreement (including the Orders) are superseded and merged into the Agreement (including the Orders). Updates, amendments, corrections and modifications to the Agreement including the Orders shall only be made by a written document signed by both parties. Any terms and conditions varying from the Agreement (including the Orders) on any order or written notification from either party shall not be effective or binding on the other party.
15.3 - Force Majeure
- Generally. Each party will be excused from performance under this Agreement for any period and to the extent that it is prevented from or delayed in performing any obligations pursuant to the Agreement, in whole or in part, as a result of a Force Majeure Event. If either party is prevented from, or delayed in performing any of its obligations under the Agreement by a Force Majeure Event, it shall promptly notify the other party verbally (to be confirmed in writing within twenty-four (24) hours of the inception of the delay) of the occurrence of a Force Majeure Event and describe, in reasonable detail, the circumstances constituting the Force Majeure Event and of the obligations, the performance of which are thereby delayed or prevented. The party claiming that a Force Majeure Event has occurred shall continue to use commercially reasonable efforts to mitigate the impact or consequence of the event on the other party and to recommence performance whenever and to whatever extent possible without delay. In the event of any Force Majeure Event, Buyer shall not pay any Charges in respect of the Products and/or Services so affected.
- Notwithstanding any other provision of this Section, a Force Majeure Event shall obligate and require Seller to commence and successfully implement all of the Products and/or Services relating to the security requirements pursuant to Section 9.3 and to the disaster recovery requirements set forth in the Disaster Recovery Plan, and the non-performing party shall not be excused under this Section 15.3 for (i) any non-performance of its obligations under this Agreement having a greater scope or longer period than is justified by the Force Majeure Event, or (ii) the performance of obligations that should have been performed prior to the Force Majeure Event.
15.4 - Waiver
No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof.
15.5 - Severability
If any provision of the Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the parties’ original intentions as nearly as possible in accordance with applicable law(s).
15.6 - Counterparts
This Master Agreement and each Order may be executed in counterparts. Each counterpart shall be an original and together shall constitute one and the same document. The parties agree that an electronic signature or photographic or facsimile copy of the signature evidencing a party’s execution of the Agreement shall be effective as an original signature and may be used in lieu of the original for any purpose.
15.7 - Binding Nature and Assignment
This Agreement shall be binding on the parties and their respective successors and permitted assigns. Except as provided in this Section 15.7, neither party may, or will have the power to, assign the Agreement (or any rights thereunder) by operation of law or otherwise without the prior written consent of the other, except that Buyer may assign its rights and delegate its duties and obligations under this Agreement (i) to an Affiliate or (ii) as a whole as part of the sale or transfer of all or substantially all of its assets and business, including by merger or consolidation to an individual or entity that assumes and has the ability to perform Buyer’s duties and obligations under the Agreement, without the approval of Seller. Any attempted assignment that does not comply with the terms of this Section 15.7 shall be null and void.
15.8 - Notices
- When a party must provide notice to the other party under this Agreement, such notice must be in writing unless otherwise agreed by the parties and will be deemed given when delivered by hand, one (1) day after being given to an express courier with a reliable system for tracking delivery, or five (5) days after the day of mailing, when mailed by United States mail (registered or certified mail, return receipt requested, postage prepaid). In addition to the foregoing notice requirement, whenever Seller is required to give notice to Buyer pursuant to Section 9.3(d) of the Master Agreement, such notice shall also be provided (as expeditiously as possible in accordance with the provisions of Section 9.3(d)) to Buyer’s CEO via telephone and e-mail.
Notifications will be addressed as follows:
Seller Officer or Contract Manager
with a copy to:
Kim Bryden, CEO
909 Florida Ave., NW
Washington, DC 20001
With a copy to:
Beverly J. Davis
Davis Law, PLLC
611 Pennsylvania Ave, SE #224
Washington, DC 20003
And a copy to (for notices required pursuant to Section 9.3(d):
[insert title from 9.3(d)]
[insert contact information]
Either party may from time to time change its address for notification purposes by giving prior written notice to the other party of the new address and the date upon which the change will become effective.
15.9 - No Third Party Beneficiaries.
The parties do not intend, nor will any Section hereof be interpreted, to create for any third party beneficiary rights with respect to either of the parties, except each Buyer Affiliate shall be a third party beneficiary under the Agreement, and the third parties identified in Section 12 will have the rights and benefits described in that Section.
15.10 - Rules of Construction
Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (b) the word “including” and words of similar import shall mean “including, without limitation,” (c) provisions shall apply, when appropriate, to successive events and transactions, (d) the headings contained herein are for reference purposes only and shall not affect the meaning or interpretation of this Agreement, and (e) the Agreement was drafted with the joint participation of both parties and shall be construed neither against nor in favor of either, but rather in accordance with the fair meaning hereof. In the event of any apparent conflicts or inconsistencies between the provisions of the Master Agreement, the Exhibits, the Orders, the Schedules or other attachments to the Agreement and Orders, such provisions shall be interpreted so as to make them consistent to the extent possible, and if such is not possible, the provisions of Section 1.1(d) shall control.
15.11 - Further Assurances
During the Term and at all times thereafter, each party shall provide to the other party, at its request, reasonable cooperation and assistance (including the execution and delivery of affidavits, declarations, oaths, assignments, samples, specimens and any other documentation) as necessary to effect the terms of the Agreement.
15.12 - Exhibits
The following Exhibits are attached hereto and incorporated herein by reference:
- Form of Order
- Dispute Resolution Procedures
- Buyer Policies
15.13 - Expenses
Each party shall be responsible for the costs and expenses associated with the preparation or completion of this Agreement and the transactions contemplated hereby except as specifically set forth in this Agreement.
Seller’s representative signing “Master Product and Services Agreement Exhibit 2 (Form of Order)” verifies that he or she has read this complete Agreement, understand its contents, and has full authority to bind and hereby binds Seller.
Exhibit 1: Definitions
This is Exhibit 1 - Definitions, to that certain Master Products and Services Agreement, dated as of [insert date], between Buyer and Seller. The following terms used in the Agreement shall have the meanings indicated:
Affiliate means, with respect to a party, any entity at any tier that controls, is controlled by, or is under common control with that party. For purposes of this definition, the term “control” (including with correlative meanings, the terms “controlled by” and “under common control with”) means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise.
Agreement means the Master Products and Services Agreement, all Exhibits thereto, all Orders executed pursuant to the Master Agreement, all Schedules thereto, and all Change Orders, which documents are incorporated into the “Agreement” by this reference.
Assets means the equipment, Software, goods and other assets which are owned or used by a party, or its Representatives, in connection with the provision or receipt of the Products and/or Services.
Audits mean collectively and individually, Buyer Audits, Seller Audits, Operational Audits and Financial Audits.
Business Days means each Monday through Friday, other than national holidays recognized by Buyer.
Change means: (1) any change to (a) the Products and/or Services, (b) the Service Level Specifications or (c) the Seller Assets used to provide the Products and/or Services that, in each case, would alter the (i) functionality, Service Level Specifications or technical environment of the Seller Assets used to provide the Products and/or Services, (ii) manner in which the Products and/or Services are provided, (iii) composition of the Products and/or Services or (iv) cost to the Buyer or Seller of the Products and/or Services; (2) any change to (a) the Facilities or (b) the Security Requirements, or Disaster Recovery Plan; (3) any change that disrupts the provision of the Products and/or Services; or (4) any amendment, modification, addition or deletion proposed by a party to the Agreement.
Change Order means a document that amends the Agreement, and which is executed pursuant to the Agreement.
Charges means, collectively, the charges for the Products and/or Services as set forth in the applicable Charges Schedule.
Charges Schedule means the schedule to each Order specifying the Charges applicable to the Products and/or Services described in each such Order.
Claim means any civil, criminal, administrative, regulatory or investigative action or proceeding commenced or threatened by a third party, including Governmental Authorities and regulatory agencies, however described or denominated.
Commencement Date means the date on which Seller begins to provide Products and/or Services under an Order to the Buyer as agreed upon by the parties, and as set forth in the “Transition Plan” Schedule to such Order. There may be a separate Commencement Date with respect to any particular Products or Services or set of Products and/or Services.
Company Information means collectively the Confidential Information and Trade Secrets of a party and/or a designated group including such party, and with respect to the Buyer, the Buyer Data.
Confidential Information means with respect to a party or a designated group including such party, any and all proprietary information of that party or of such group, and/or of third parties in the possession of that party and/or such group, treated as secret by the disclosing party and/or such group that does not constitute a Trade Secret (defined below). For the avoidance of doubt, Confidential Information of a party also includes (i) information which has been disclosed to such party and/or such group by a third party, which party and/or group is obligated to treat as confidential or secret, and (ii) with respect to the Buyer, the Buyer Data.
Buyer Representatives means subcontractors, representatives and agents of Buyer, and the employees of the foregoing (but excluding Seller and its Affiliates and Representatives from such definition).
Buyer Software means the Buyer-Licensed and Buyer-Owned Software listed on the “Buyer Software” Schedule to each Order owned or licensed by the Buyer that will be used by Seller in performing and providing Products and/or Services under the Agreement.
Buyer Systems means the computer hardware, software, data networks and systems used and operated by the Buyer for its information technology requirements, excluding the Seller Information System.
Derivative Work means a derivative work as defined in Title 17 U.S.C. § 101, as amended.
Deliverables means, as further specified in an Order, results of the Products and/or Services to be provided by Seller to Buyer, including output produced in electronic written or verbal form.
Direct Damages Cap means both the Seller Direct Damages Cap and the Buyer Direct Damages Cap.
Disaster Recovery Plan means a disaster recovery plan developed by Seller in accordance with Section 3.4.
Dispute means any dispute, controversy or Claim, including situations or circumstances in which the parties are required to mutually agree on additions, deletions or changes to terms, conditions or Charges, arising out of, or relating to, the Agreement.
Dispute Resolution Procedures means the process for resolving Disputes set forth in Section 16 of the Master Agreement and Exhibit 3 hereto.
Effective Date means the date of the execution of the Master Agreement by the parties thereto as set forth in the first paragraph of the Master Agreement.
Equipment means Buyer Equipment and Seller Equipment.
Execution Date means the date of execution of an Order by the parties as set forth on the initial page thereof.
Exhibit means an attachment to the Master Agreement as such attachment may be amended from time to time.
Facilities means the Buyer and/or Seller facilities at and from which Seller will provide the Products and/or Services, as set forth in the applicable Order.
Financial Dispute has the meaning set forth in the Dispute Resolution Procedures.
Force Majeure Event means an event(s) meeting both of the following criteria:
- Caused by any of the following: (a) catastrophic weather conditions or other extraordinary elements of nature or acts of God (other than localized fire or flood); (b) acts of war (declared or undeclared), acts of terrorism, insurrection, riots, civil disorders, rebellion or sabotage; and (c) quarantines, embargoes and other similar unusual actions of federal, provincial, local or foreign Governmental Authorities. Force Majeure Events generally do not include (i) vandalism, (ii) the regulatory acts of Governmental Authorities, (iii) Seller’s inability to obtain hardware or software, on its own behalf or on behalf of Buyer, or its inability to obtain or retain sufficient qualified personnel, except to the extent such inability to obtain hardware or software or retain qualified personnel results directly from the causes outlined above, or (iv) any failure to perform caused solely as a result of a party’s lack of funds or financial ability or capacity to carry on business; and
- The non-performing party is without fault in causing or failing to prevent the occurrence of such event, and such occurrence could not have been prevented or circumvented through the use of commercially reasonable alternative sources, workaround plans or other means (including, with respect to Seller, by Seller meeting its security and disaster recovery obligations described in the Agreement).
Governmental Authority means any nation or government, any federal, state, province, territory, city, town, municipality, county, local or other political subdivision thereof or thereto, any quasi-Governmental Authority, and any court, tribunal, arbitral body, taxation authority, department, commission, board, bureau, agency, instrumentality thereof or thereto or otherwise which exercises executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Intellectual Property Rights means any and all intellectual property rights existing from time to time under any law, including patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law (together with all of the goodwill associated therewith), unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect worldwide. For purposes of this definition, rights under patent law shall include rights under any and all patent applications and patents (including letters patent and inventor’s certificates) anywhere in the world, including any provisionals, substitutions, extensions, supplementary patent certificates, reissues, renewals, divisions, continuations in part (or in whole), continued prosecution applications, requests for continued examination, and other similar filings or stages thereof provided for under the laws of the United States, or of any other country.
Key Personnel means the Seller Contract Manager and the Seller employees set forth in “Key Personnel” Schedule to each Order.
Law means all applicable laws (including those arising under common law), statutes, codes, rules, regulations, reporting or licensing requirements, ordinances and other pronouncement having the effect of law of the United States, any foreign country or any domestic or foreign state, county, city, province or other political subdivision, including those promulgated, interpreted or enforced by any Governmental Authority. Law includes Privacy Laws.
Losses means any judgments, settlements, awards, losses, charges, liabilities, penalties, interest claims (including Taxes and all related interest and penalties incurred directly with respect thereto), however described or denominated, and all related reasonable costs, expenses and other charges (including all reasonable attorneys’ fees and reasonable internal and external costs of investigations, litigation, hearings, proceedings, document and data productions and discovery, settlement, judgment, award, interest and penalties), however described or denominated.
Master Agreement means the Master Services Agreement by and between the parties, and the attached Exhibits.
Notification Related Costs means the Buyer’s internal and external costs associated with addressing and responding to the Security Breach, and may include some or all of the following (or more): (a) preparation and mailing or other transmission of legally required notifications; (b) preparation and mailing or other transmission of such other communications to customers, agents or others as Buyer deems reasonably appropriate; (c) establishment of a call center or other communications procedures in response to such Security Breach (e.g., customer service FAQs, talking points and training); (d) public relations and other similar crisis management services; (e) legal and accounting fees and expenses associated with the Buyer’s investigation of and response to such event; and (f) costs for commercially reasonable credit reporting services that are associated with legally required notifications or are advisable under the circumstances.
New Services means the functions, responsibilities, activities, tasks and projects outside the scope of the Products and Services that Seller may provide to the Buyer on terms to be agreed upon pursuant to Section 3.5 and set forth in a Change Order.
Party or Parties means Buyer and/or Seller, as parties to the Master Agreement.
Pass Through Charges means Charges for products, software and/or services by persons or entities other than Seller that are initially invoiced to Seller by such person or entities.
Personally Identifiable Information (PII) means personally identifiable information of individuals, and any information that may be used to track, locate or identify such individuals (including, without limitation, names, addresses, credit card numbers, account numbers, specific items ordered, and also denominations and quantities ordered by customers and aggregate customer and/or product information if any individual person can be identified from such information), which is generated by or disclosed to Seller or any Seller Representatives in connection with the Products and/or Services, and includes such information of the Buyer employees and of individuals who seek to obtain, obtain or have obtained products or services from the Buyer and/or who have been solicited by or on behalf of the Buyer.
Products - means (i) goods, produce, food stuffs, commodities, and other commercial and retail items provided by Seller set forth in the Agreement, as they may evolve and be supplemented and enhanced during the Term; (ii) the functions, responsibilities, activities, tasks and projects not specifically described in the Agreement as a part of manufacturing and delivering the Products which are required for the proper provision of the Products or are an inherent part of, or necessary subpart included within, the provision of the Products; (iii) goods and other items that are of a nature and type that would ordinarily be procured by a company in the Buyer’s industry sector, even if not specifically described in the Agreement.
Representatives means the Buyer Representatives and/or the Seller Representatives, as applicable.
Order means a statement of work, in the form of Exhibit 2, entered into by the parties describing the Products and/or Services to be provided by Seller under that Order and the attached Schedules.
Order Term means the term of an applicable Order, as set forth therein.
Security Breach means (A) any circumstance pursuant to which applicable law requires notification of such breach to be given to affected parties or other activity in response to such circumstance; or (B) any actual, attempted, suspected, threatened, or reasonably foreseeable circumstance that compromises, or could reasonably be expected to compromise, either “Physical Security” or “Systems Security” (as defined below) in a fashion that either does or could reasonably be expected to permit unauthorized Processing, use, disclosure or acquisition of or access to any Buyer Data, Buyer Software, Work Product or any Company Information developed, maintained, processed or transmitted by Seller or any Seller Representatives in connection with the Products and/or Services. Physical Security means physical security at any Seller Site or other location housing systems maintained by Seller or any Seller Representatives in connection with the Products and/or Services. Systems Security means security of computer, electronic or telecommunications systems of any variety (including data bases, hardware, software, storage, switching and interconnection devices and mechanisms), and networks of which such systems are a part or communicate with, used directly or indirectly by Seller or any Seller Representatives in connection with the Products and/or Services.
Service Level Agreement means the schedule to each Order specifying the Service Level Specifications applicable to the Products and/or Services described in each such Order, remedies for Seller’s failure to comply with such Service Level Specifications, including applicable Service Level Credits, procedures for modifying and improving Service Level Specifications and related provisions.
Service Level Credits means the monetary amounts that Seller shall be obligated to pay or credit to Buyer in the event of a Service Level Default, as specified in the applicable Service Level Agreement.
Service Level Specifications means the standards of performance to be met or exceeded by Seller in providing the Products and/or Services, as set forth in the applicable Service Level Agreement.
Services means (i) services, functions, responsibilities, activities, tasks and projects to be performed by Seller set forth in the Agreement, as they may evolve and be supplemented and enhanced during the Term; (ii) the functions, responsibilities, activities, tasks and projects not specifically described in the Agreement as a part of Services which are required for the proper performance and provision of the Services or are an inherent part of, or necessary subpart included within, the Services; (iii) services, functions, responsibilities, activities, tasks and projects that are of a nature and type that would ordinarily be performed by a company in the Buyer’s industry sector, even if not specifically described in the Agreement; and (iv) services, functions, responsibilities, activities, tasks and projects routinely performed by the Buyer personnel and subcontractors who are transitioned to Seller, displaced or whose functions were displaced as a result of the Agreement, even if not specifically described in the Agreement.
Software or software means any computer programming code consisting of instructions or statements in a form readable by individuals (source code) or machines (object code), and related documentation and supporting materials therefor, in any form or medium, including electronic media.
Successor Seller means an entity that provides services to Buyer similar to the Products and/or Services following the termination or expiration of the Agreement.
Seller Assets means the equipment, Software, goods and other assets which are owned or used by Seller, or any Seller Representatives, in connection with the provision or receipt of the Products and/or Services, including the Seller Information System.
Seller Equipment means all equipment owned or leased by Seller that is used, directly or indirectly, to provide the Products and/or Services.
Seller Representatives means Seller Affiliates, subcontractors, representatives and agents, and the employees of the foregoing.
Seller Software means the Software used by Seller or any Seller Representatives in providing the Products and/or Services and (i) owned by Seller or such Seller Representative before the Effective Date or acquired by Seller or such Seller Representative after the Effective Date, (ii) developed by Seller or such Seller Representative other than pursuant to the Agreement or any other agreement with Buyer; or (iii) developed by third parties and licensed to Seller or such Seller Representative. Seller Software includes Software licensed by Seller or Seller Representatives pursuant to Seller Third Party Agreements.
Tax means federal, state and local sales, use and other similar types of transfer taxes or fees, however designated or imposed, which are in the nature of a transaction tax or fee, but not including any taxes, duties or fees imposed on or measured by net or gross income or gross receipts, capital stock or net worth or in the nature of an income, capital, franchise, or net worth tax.
Termination Assistance Services means the functions, responsibilities, activities, tasks and projects Seller is requested by Buyer to perform in anticipation of and in connection with the termination or expiration of the Agreement in order to achieve an orderly transfer of Products and/or Services from Seller to Buyer or to Buyer’s designee, the services described in the “Termination Assistance Services” Schedule to each Order and all or a portion of all other Products and/or Services. The Termination Assistance Services are part of the Products and/or Services.
Termination Charge means the amount, if any, to be paid by Buyer in the event of a termination pursuant to Section 12.1(c).
Third Party means a business or entity other than the Buyer or the Seller or any of their respective Affiliates.
Third Party Agreements means those agreements for which Seller has undertaken financial, management, operational, use, access and/or administrative responsibility and/or benefit in connection with the provision of the Products and/or Services, and pursuant to which the Buyer has contracted with a third party Provider to obtain any third party products, software and/or services that will be used, accessed and/or managed in connection with the Products and/or Services. Third Party Agreements are listed on “Third Party Agreements” Schedule to each Order for such Order, which schedule shall be promptly updated and modified from time to time by the parties to reflect the then-current Third Party Agreements.
Third Party Provider means a business or entity other than the Buyer or the Seller or any of their respective Affiliates that provides products, software and/or services under a Third Party Agreement.
Trade Secrets means with respect to a Party and/or designated group including such Party, information related to the services and/or business of the disclosing Party or such group, and/or of a third party, which (a) derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts by the disclosing party and/or such group that are reasonable under the circumstances to maintain its secrecy, including (i) marking any information clearly and conspicuously with a legend identifying its confidential or proprietary nature; (ii) identifying any oral presentation or communication as confidential immediately before, during or after such oral presentation or communication; or (iii) otherwise, treating such information as confidential or secret. Assuming the criteria in sections (a) and (b) above are met, Trade Secrets include, but are not limited to, technical and nontechnical data, formulas, patterns, compilations, computer programs and software, devices, drawings, processes, methods, techniques, designs, programs, financial plans, product plans, and lists of actual or potential customers and Sellers.
Transition means the transition or implementation of resources and operational responsibilities for performance of the Products and/or Services to Seller.
Transition Services means the tasks described in the Transition Plan.
Withholding Tax means foreign, federal, and state and local taxes or fees which are imposed on or by reference to gross or net income or gross or net receipts and are required under law to be withheld by customer from payments made to Seller under the agreement (including any related penalties and interest thereon).