Master Service Agreement
This Master Services Agreement (“Agreement”) is made and entered into as of effective date set forth in one or more Order Forms (as defined below) (the “Effective Date”), by and between Solution One Partners, Inc., a Nevada corporation with its principal place of business at 11340 W Bell Road, Suite 110, Surprise, AZ 85378 (“S1P”) and the entity listed in the applicable Order Form(s) (“Client”). This Agreement is effective between Client and S1P as of Effective Date.
THIS AGREEMENT GOVERNS CLIENT'S LICENSE AND USE OF THE SAAS SERVICES (AS DEFINED BELOW). BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. ANY REPRESENTATIVE OF CLIENT ENTERING INTO THIS AGREEMENT REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF CLIENT DOES NOT ACCEPT THESE TERMS AND CONDITIONS, NEITHER CLIENT NOR ANY REPRESENTATIVE OR AGENT OF THE CLIENT MAY USE THE SERVICES (AS DEFINED BELOW).
S1P has developed and hosts the Services, which are accessed and used by S1P’s Clients. NOW, THEREFORE, the parties hereby agree as follows:
I. Recitals
WHEREAS, S1P offers various services, including Custom Referral Programs, Reward Engagement & Loyalty Programs, HubSpot CRM build and maintenance, Advanced lead Capture, and other services (the “Services”): And,
WHEREAS the Client wishes to procure one or more Services from S1P (the “Services”) and S1P wishes to offer them;
NOW, THEREFORE, the Parties agree as follows:
II. Definitions
“Authorized User” means an employee or contractor of Client that (i) has been assigned to access and use the Services, and (ii) has a registered Account (as defined below) enabling access to and use of the Services.
“Client Data” means any data, information, including Account (as defined below) information, and other content uploaded, stored, transmitted to or otherwise processed by or on behalf of Client through the Services, or that the Services may access, including, without limitation, data transferred by or among, or accessed from, Third-Party Applications, in connection with Client’s use of the Services.
“Customer” means a customer of a Client.
“Documentation” means the end user technical documentation provided or made available to Client regarding the Services, as may be modified from time to time.
“Fees” means the fees described in Order Forms.
“First Bill Date” means the start date as defined in an Order Form.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Open Source Materials” shall mean any software, library, utility, tool, or other computer or program code (collectively, “Code”) that is licensed or distributed as “free software,” “freeware,” “open source software,” or under any terms or conditions that impose any requirement that the Code or any software using, linked with, incorporating, distributed with, based on, derived from or accessing the Code: (i) be made available or distributed in source code form; (ii) be licensed for the purpose of making derivative works; (iii) be licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind; or (iv) be redistributable at no charge.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Client and S1P, including any addenda and supplements thereto.
“Person” means any individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity.
“Privacy Policy” means the S1P privacy policy found at www.solutiononepartners.com/privacy/ as updated from time to time.
“Professional Services” any professional services that S1P is to provide Client as outlined in one or more SOWs.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) any information deemed to be “special categories of data” of an EU resident (as defined in European Union Regulation 2016/679); or (iii) any other personal or sensitive information (including, but not limited to, any Social Security numbers, driver’s license numbers, personal bank account numbers, passport or visa numbers, passwords and security credentials) that is subject to heightened security requirements or protection by laws, or regulations or contract including, but not limited to, Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act, Family Educational Rights and Privacy Act, and their international equivalents or other such laws.
“Services” means the services described in the applicable Order Form.
“Software” means any S1P or third-party software used by S1P (other than Third-Party Applications) to provide the Services.
“SOW” means Statement(s) of Work, Work Authorization(s) or other contract(s) under which S1P provides Professional Services.
“Subscription Agreement” means the contract for services between the Client and S1P as defined on the Order Form.
“Term” means the term of this Agreement as defined in Section IV.A.
“Third-Party Applications” means an Internet-based or offline software application that is provided by or on behalf of Client by a third party and interoperates with the Services, including, for example, an application that is developed by or for Client by S1P.
“Usage Data” means any data reflecting access or use of the Services by or on behalf of Client or any Authorized Users.
“Work Product” means all software (including any related documentation) that is created, developed, or otherwise generated by S1P specifically for Client pursuant to the terms and conditions of a SOW.
III. Fees, Expenses and Payment
A. Clients shall pay a Fee or Fees as agreed in the Order Form.
B. S1P shall invoice the Client and auto-collect fees via Credit Card or ACH on the first day of the month for the Fees for that month.
C. S1P reserves the right to adjust its fees on the anniversary of the Execution of this Agreement to reflect increases in costs and market conditions to deliver the Service.
D. Each Party shall be responsible for its expenses in fulfilling its obligations under the Terms of this Agreement.
IV. Term and Termination
A. Term and Renewal. The Subscription Agreement shall remain in effect for the Term agreed in the Order Form (“Initial Term”). Unless either Party notifies the other of its intention to cancel no later than forty-five (45) days prior to the expiration of the Initial Term, if applicable, the Subscription Agreement shall automatically renew for a period of one (1) year and continue to renew annually thereafter unless either Party cancels forty-five (45) days prior to the expiration of the current Term.
B. Termination without Cause. Neither Party may cancel the Subscription Agreement without cause as defined below during any term of the agreement.
C. Termination for Cause. In the event of a default under the Subscription Agreement by either Party or this Master Service Agreement, the other Party may terminate the Subscription Agreement by giving written notice to such breaching Party of termination and the basis for such termination. Such notice of termination of the Subscription Agreement shall be effective thirty (30) days after receipt of such written notice by the offending Party unless such default is cured within thirty (30) days. The following shall constitute events of default hereunder:
i. The failure of a Party to materially perform or comply with any one or more of its covenants, duties, or obligations hereunder, including non‐payment of Fees; or
ii. If a Party (i) applies for consent to the appointment of a receiver, trustee, or liquidator of all or a substantial part of its assets; or (ii) is unable or fails to pay or admits in writing its inability or failure to pay its debt as they mature; or (iii) makes a general assignment for the benefit of creditors; or (iv) is adjudicated as bankrupt or insolvent; or (v) is dissolved; or (vi) files a petition in bankruptcy or for reorganization or for any arrangement pursuant to bankruptcy act or any insolvency law providing for the relief of debtors now or hereafter in effect; or (vii) files an answer admitting the material allegation of, or consents to, or defaults in answering a petition filed against it, in any bankruptcy, reorganization or insolvency proceeding; or (viii) takes corporate action for the purpose of effecting any of the foregoing; or
iii. If an order, judgment, or decree is entered against, and without the application, approval, or consent of a Party, by any court of competent jurisdiction, approving a petition seeking either Party’s reorganization, or appointing a receiver, trustee, or liquidator of such Party, of all, or a substantial part of, its assets; or
D. Wind‐down. The wind‐down period shall be the 30‐day notice period prior to the expiration or early termination of the agreement. In the event of termination or expiration of the Subscription Agreement, the Parties agree to wind down the Service in an orderly manner to minimize the disruption to their respective businesses and to Members.
V. Services – General Terms and Conditions
A. Services. Subject to Client’s compliance with the terms and conditions of the Subscription Agreement, commencing on the First Bill Date and continuing throughout the remainder of the Term: (a) grants Client a non-exclusive, non-transferable (except as specified in Section XIII.L. (Assignment; Successors)), worldwide, royalty-free right to access and use the Services during the Term in accordance with the limitations in the Terms of the Master Service Agreement and all applicable Order Form(s) and the Documentation; (b) shall provide support for the Services to Client as set forth in Section VI.A.; and (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime and (ii) any unavailability caused by circumstances beyond S1P’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving S1P’s employees), Internet service provider failure or delay, Third-Party Application failure, or denial of service attacks.
B. Authorized Users. Client may allow Authorized Users to use the Services for Client’s internal business purposes; provided, however, each Authorized User must agree to abide by the terms of the Subscription Agreement. Client shall immediately notify S1P of any violation of the terms of the Subscription Agreement by any Authorized User, upon becoming aware of such violation. Client shall be liable for any breach of the terms of the Subscription Agreement by any Authorized User.
C. Authorized User Accounts. To access the Services, Authorized Users must provide login credentials associated with the Client’s S1P account (“Account”). Creation of a valid Account requires the Authorized User providing S1P a valid email address, for which the Client has the right to access and use. The individual creating such Account must be (a) at least 18 years of age, (b) not named on any U.S. government list of persons or entities prohibited from receiving exports, and (c) not a resident of, or otherwise domiciled in, any countries set forth on the State Sponsored Terrorism List promulgated by the United States Government (which currently includes the Democratic People’s Republic of Korea (North Korea) Iran, Sudan, and Syria).
D. Account Information. Client represents and warrants that (a) all information Client provides S1P about Customers in creating an Account (“Account Information”) is complete, true, current and accurate, (b) if a change occurs such that the Account Information is no longer complete, true, current or accurate, Client shall, promptly update the Account to reflect such change, and (c) the individual creating an Account as well as the Client have the requisite power and authority to create such Account.
E. Restrictions. Client may not, nor permit or encourage any third party to directly, or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software; (b) modify, translate, or create derivative works based on the Services or any Software; (c) use the Services or any Software for timesharing or service bureau purposes or other computer service to a third party; (d) modify, remove or obstruct any proprietary notices or labels; (e) use any Software or the Services in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with any Software or the Services; or (f) process Client Data through the Services that (i) is defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, harassing, false, misleading or inaccurate, (ii) contains or causes to be placed on S1P’s or other third party’s systems any Trojan horses, worms, “back doors”, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information, (iii) violates any applicable local, state, federal or foreign law, rule or regulation, including privacy laws and privacy standards, (iv) violates any rule or policy of any Third-Party Application; (v) infringes or violates any third-party’s rights, or (vi) contains any Sensitive Personal Information of any individual or any information of any person under the age of thirteen (13).
F. Additional Client Responsibilities. With Regard to the Services. Client shall (a) be responsible for Authorized Users’ compliance with the terms of the Subscription Agreement, (b) be responsible for the quality and legality of Client Data and the means by which Client acquired Client Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and promptly notify S1P of any such unauthorized access or use of which Client becomes aware, (d) use the Services only in accordance with the Documentation, the Subscription Agreement, S1P’s Privacy Policy, applicable laws and government regulations (including, but not limited, to those regarding privacy), (e) comply with the terms of service of Third-Party Applications that Client uses with the Services, and (f) maintain applicable accounts with providers of Third-Party Applications used by Client in connection with the Services. Client and Authorized Users are responsible for (i) maintaining the security of and not distributing to third Parties Authorized User’s Accounts and passwords and (ii) regularly backing up Client Data. Client shall also cooperate with S1P in establishing login and authentication control mechanisms or other procedures for verifying that only Authorized Users have access to the Services. S1P shall not be liable for any loss or damage from Client’s or any Authorized User’s failure to comply with the beforementioned security obligation or Client Data backup obligation. Client and Authorized Users may not access the Services, if they are S1P’s direct competitor, except with S1P’s prior written consent. In addition, Client and Authorized Users may not access the Services for competitive purposes (including, but not limited to, monitoring its availability, performance or functionality, or for any other benchmarking). Client shall not attempt to interfere with or disrupt the Services or the Software or attempt to gain unauthorized access to any systems or networks that connect thereto.
G. Acceptable Use Policies. Client acknowledges and agrees that S1P does not monitor, or police communications or data transmitted through the Services and that S1P shall not be responsible for the content of any such communications or transmissions. Client shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others and shall abide by the Privacy Policy, which terms are incorporated herein by reference.
H. Third-Party Terms of Service. S1P uses third-party service providers to provide Clients with the features available through the Site and Services, to respond to their requests, to process orders, to facilitate any transactions that they may initiate through the Site or Services, and to communicate with them. We use the following third-party service providers; Perkville - Master Service Agreement, ROR Partners – Master Service Agreement, Black Pearl Group - Terms of Service, Vonage, Inc. - Terms of Use, Middle Terms of Service, and HubSpot Terms of Service. By using the Site and Services, Clients agree to any applicable terms of the third-party service providers’ terms.
I. Acquisition of Non-S1P Products and Services. S1P or third Parties may make available third-party products or services, including, for example, Third-Party Applications and implementation and other services. Any acquisition or use by Client of such non-S1P products or services, and any exchange of data between Client and any non-S1P provider, is solely between the Client and the applicable non-S1P provider. S1P does not warrant or support Third-Party Applications or other non-S1P products or services, whether or not they are designated by S1P as “certified” or otherwise, except as specified in an Order Form.
J. Third-Party Applications and Client Data. If Client installs, connects or enables a Third-Party Application for use with the Services, Client grants S1P permission to allow the provider of that Third-Party Application to access Client Data as required for the interoperation of such Third-Party Application with the Services. S1P is not responsible for any disclosure, modification or deletion of Client Data resulting from access by or any interaction with any Third-Party Application.
K. Integration with Third-Party Applications. The Services contain features designed to interoperate with Third-Party Applications. To use such features, the Client may be required to obtain access to Third-Party Applications from their respective providers and may be required to grant S1P access to the Third-Party Applications (using the Client’s credentials for such Third-Party Applications) that are intended to interoperate with the Services. If the provider of a Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Services’ features on reasonable terms, S1P may cease providing those features of the Services without entitling Client to any refund, credit, or other compensation.
L. Additional Terms Regarding Third-Party Applications. Client warrants and covenants that it has and shall have reviewed the applicable terms and conditions governing the use of all Third-Party Applications and is in and shall remain in compliance with such terms and conditions for so long as any Services are integrated, connected to or otherwise interoperating with the applicable Third-Party Applications. Client hereby appoints S1P as its agent to directly interact with Client’s Third-Party Application providers, on Client’s behalf (“Agent Purpose”). Client shall timely provide S1P with information and documentation as S1P may reasonably request to enable S1P to carry out the Agent Purpose. As the principal party with regard to any interaction by S1P as an agent of Client in connection with the Subscription Agreement regarding the Agent Purpose, Client is solely responsible for ensuring that Client has provided all notices and obtained all consents required under applicable law and any agreements with Third-Party Application providers to allow S1P to carry out the Agent Purpose.
M. Open-Source Materials. S1P shall not, without Client’s express prior written consent, (i) incorporate, combine, or distribute with any Work Product, or any derivative thereof, any Open Source Materials; or (ii) use Open Source Materials in the development of Work Product, in such a way that would cause the Work Product, or any derivative thereof, to be subject to all or part of the license obligations or other intellectual property-related terms with respect to such Open Source Materials.
VI. Professional Services; Joint Development; Cooperation
A. Client may purchase any software customization, software integration, training, implementation or any other professional services from S1P relating to the Services (“Professional Services”), pursuant to one or more separate SOWs executed between the Parties containing the relevant terms and conditions for such Profession Services. Each SOW issued pursuant to the Subscription Agreement shall become effective only when executed by an authorized representative of both Client and S1P. Unless otherwise agreed, each executed SOW shall, by this reference, be incorporated into the Subscription Agreement and shall be subject to all of the terms and conditions of the Subscription Agreement. Except to the extent expressly set forth to the contrary in any applicable SOW, the following provisions shall apply to all SOWs:
i. Limited License to Use Client-Owned Property. Client grants S1P a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, distribute, create derivative works of, and otherwise use any Client-owned materials and Intellectual Property Rights solely for S1P’s use in connection with providing the Professional Services during the applicable Term and otherwise performing its obligations under the Subscription Agreement.
ii. Acceptance of Work Product. Unless otherwise agreed to by the Parties in an applicable SOW, Work Product that S1P delivers to Client under any SOW shall be considered accepted upon the earlier of (a) when Client provides S1P written notice of acceptance or (b) ten (10) days after delivery of the applicable Work Product, if Client has not first provided S1P with written notice of rejection. Client may reject Work Product in the event that it contains any Error(s) (as defined below), via written notice setting forth in reasonable detail the nature of such Error(s). In the event of such rejection, S1P shall use commercially reasonable efforts (i) to correct and redeliver the Work Product to Client within ten (10) days (the “Correction Period”); (ii) if it is impractical for S1P to correct the Error(s) and redeliver the Work Product within the Correction Period, S1P shall provide Client with a written plan to correct the Error(s), including a schedule for such correction; or (iii) refund Client the amounts paid for the non-conforming Work Product. Redelivery pursuant to the previous sentence shall constitute another delivery, and the Parties shall again follow the acceptance procedures set forth in in the previous sentence. If S1P disagrees with Client's rejection of the Work Product, S1P’s project manager shall promptly notify Client’s manager in writing and schedule a meeting to discuss and resolve the issue. “Error(s)” means a failure of the applicable Work Product to substantially conform to the documentation or the applicable specifications for such Work Product, that materially impacts such Work Product’s operational performance or functional performance.
iii. No Restrictions on S1P. Subject to Section XIII (Confidentiality), neither the Subscription Agreement, any Order Form nor any SOW, prohibit or otherwise restricts S1P from: (i) providing to any other person or entity any Professional Services, software, hardware, or utilizing designs that are the same as or similar to the services, software, hardware or designs provided to Client hereunder, or (ii) using any ideas, concepts, know how, logic, models, utilities, routines, methodologies, processes, algorithms, templates, designs, tools or other items that arise out of or are improved by S1P hereunder. Notwithstanding this Section VI.A.iii, S1P does not have any rights to use Client’s Intellectual Property Rights except as specifically set forth in the Subscription Agreement or a separate written agreement between the Parties.
iv. No Support Obligation. Unless otherwise provided in an Order Form, SOW, or Change Order, S1P and its licensors are under no obligation to install, maintain or support any Work Product, or any derivatives thereof.
v. Contents of SOW(s); Conflict. Each SOW may contain (or incorporate as attachments or by reference): (a) Scope of the particular work to be performed; (b) Description of any Work Product to be prepared; (c) Estimated delivery schedule of Work Product; (d) Fee structure and associated payment terms; (e) Assumptions upon which the Statement of Work is based; (f) Reference to the Subscription Agreement; and/or (g) Other applicable information. S1P shall not be obligated to perform any Professional Services or deliver any Work Product that is not expressly provided for in an SOW. In the event of a conflict between the terms of the Subscription Agreement and the terms of an SOW, the terms of the body of the Subscription Agreement shall prevail, unless the SOW specifically states that such term is to override the term set forth herein.
vi. Change Orders. All changes to an SOW may only be made by a Change Order referring to the SOW provisions to be changed and signed by an authorized representative of each party. In the event that S1P or Client proposes changes that alter the scope, timeline, or cost of a project, S1P shall issue Client a Change Order.
vii. Cooperation. Client acknowledges and agrees that S1P’s performance of Professional Services is dependent upon Client’s timely cooperation, feedback and provision of accurate and complete information. Client agrees to designate a qualified and authorized contact (the “Client Contact”) who shall act as a liaison for Client in all important communications with S1P. The applicable Client Contact should be specified in the applicable SOW.
VII. Client’s Obligations
A. Cooperation and Assistance. As a condition to S1P’s obligations hereunder, Client shall at all times: (a) provide S1P with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by S1P in order to provide the Services, including, but not limited to, providing Client Data, security access credentials, information, and software interfaces to Client’s applications and applicable Third-Party Applications necessary for S1P to provide the Services to Client; (b) provide such personnel assistance as may be reasonably requested by S1P from time to time; and (c) carry out in a timely manner all other Client responsibilities set forth in the Subscription Agreement.
B. Marketing Support; Press Release. Client shall comply with reasonable requests of S1P to support public relations efforts pertaining to the Services, which efforts may include: (a) a press release highlighting Client’s purchase or use of the Services (including any return on investment attained through the Services); (b) participation in targeted press and analyst interviews highlighting benefits of implementing the Services; and (c) participation in Client case studies developed by S1P and used on the S1P web site and other collateral. Client grants to S1P a non-exclusive, non-transferable (except as permitted under Section 14.9), limited right to use the Client name, trademarks, and logos (collectively, the “Client Marks”) in the production of marketing materials, provided that such use is in accordance with Client’s trademark and logo use guidelines that Client provides to S1P. S1P will use its commercially reasonable efforts to cooperate with the Client in monitoring use of the Client Marks. S1P may issue a press release naming Client as a Client upon the Effective Date and anytime during the Term.
C. Enforcement. Client shall ensure that all Authorized Users comply with the terms and conditions of the Subscription Agreement, including, without limitation, with Client’s obligations set forth in Sections VII, Client shall promptly notify S1P of any suspected or alleged violation of the terms and conditions of the Subscription Agreement and shall reasonably cooperate with S1P with respect to: (a) investigation by S1P of any suspected or alleged violation of the Subscription Agreement and (b) any action by S1P to enforce the terms and conditions of the Subscription Agreement. S1P may suspend or terminate any Authorized User’s access to the Services upon notice to Client in the event that S1P reasonably determines that such Authorized User has violated the terms and conditions of the Subscription Agreement. Client shall be liable for any violation of the terms and conditions of the Subscription Agreement by any Authorized User.
D. Telecommunications and Internet Services. Client acknowledges and agrees that Client’s and its Authorized Users’ use of the Services is dependent upon access to telecommunications and Internet services. Client shall be solely responsible for acquiring and maintaining its telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. S1P shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
VIII. Ownership
A. S1P Technology. Client agrees that S1P or its suppliers retain all right, title and interest in (including all Intellectual Property Rights) and to the Services, Software, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in the Subscription Agreement, no rights in the Service, Software, Documentation or any other S1P intellectual property are granted to Client. As between S1P and Client, the Services, Software, Documentation and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of S1P or its licensors.
B. Work Product. S1P agrees that, upon payment of the consideration set forth on the applicable SOW, Client shall have purchased all right, title and interest in and to all Work Product as set forth in the applicable SOW, including whether or not patentable, any idea, invention, concept, design, prototype, product configuration, process, technique, procedure, system, plan, model, program, software or code, data, specification, drawings, diagram, flow chart, documentation, or the like that are created pursuant to the applicable SOW (including any improvement in the design of the Work Product), as well as any reduction to practice of any subject matter, application or discovery which could be patented or copyrighted) and any associated Intellectual Property Rights in such Work Product, and they are the sole and exclusive property of Client; provided, however, that Work Product shall not include any component of the Services, the Services, any Software, or any Documentation (including, in each case, all related Intellectual Property Rights), even in the event that S1P-owned intellectual property may comprise part of the Work Product. S1P agrees that all Work Product created by S1P in connection with each applicable SOW are “works made for hire” on behalf of Client as that term is used in connection with the U.S. Copyright Act. S1P shall promptly disclose all Work Product to Client and shall cooperate (and cause its employees and contractors to cooperate) in executing any documents and taking any other actions necessary or convenient to patent, copyright, assign to Client or otherwise perfect or protect such Work Product for the benefit of Client. To the extent that S1P incorporates any S1P- owned intellectual property into any Work Product, S1P hereby grants or shall cause to be granted to Client a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, offer to sell, sell, import, copy, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit such Work Product.
C. Client and User Feedback. Client may and Authorized Users each may, at their sole discretion from time to time, provide S1P with feedback regarding the performance of the Services. All feedback, and comments that Client and any Authorized User provides to S1P hereunder relating to the Services, Software, Documentation and Work Product are referred to collectively as “User Feedback”. Client grants to S1P and S1P’s successors and assigns a non-exclusive, worldwide, royalty free, assignable, perpetual and irrevocable (except with respect to User Feedback that constitutes Client Confidential Information under Section XIII.A of the Subscription Agreement) right under Client’s Intellectual Property Rights to use, sell, offer for sale, transfer, reproduce, distribute, disclose, import, and prepare derivative works from, together with the right to sublicense others to do the same, the User Feedback (as provided by Client to S1P) to improve S1P’s (and its successors’ or assigns’) products and services; provided, that S1P (and S1P’s successors and assigns) shall not reveal Client or any Authorized User as the source of the User Feedback or disclose to third Parties any Client Confidential Information that may be included with any User Feedback.
D. Client Data. Notwithstanding anything to the contrary in the Subscription Agreement, as between the Parties, Client shall retain all right, title and interest in (including any and all Intellectual Property Rights) and to the Client Data as provided to S1P and any Client-specific data outputs produced by the Services and/or provided to Client through the Services as derived by the Services processing data about Client or provided by Client or third Parties on Client’s behalf. Subject to the terms of the Subscription Agreement, Client, on behalf of itself and its suppliers and licensors (as applicable), hereby grants to S1P a limited, worldwide, revocable, non-transferable, non-exclusive license, during the Term, right to use, view, copy, store, reformat, modify, distribute, create derivative works, display, and analyze (including sublicensing to third party data processors) the Client Data solely to the extent necessary to provide the Services and any Professional Services to Client.
E. Aggregated Anonymous Usage Data. Notwithstanding anything to the contrary herein, Client agrees that S1P may obtain and aggregate technical and other data about Client’s use of the Services that is non-personally identifiable with respect to Client or its Authorized Users (“Aggregated Anonymous Usage Data”), and S1P may use the Aggregated Usage Anonymous Data to solely to analyze, improve, support and operate the Services and for distribution in general benchmarking data and industry reports. For clarity, this Section does not give S1P the right to identify Client as the source of any Aggregated Anonymous Data.
IX. Warranties; Warranty Disclaimers
A. Mutual Warranties. Each Party represents and warrants to the other that it has the legal power and authority to enter into the Subscription Agreement, and that: (a) the Subscription Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of the Subscription Agreement; (c) the execution, delivery and performance of the Subscription Agreement does not violate the terms or conditions of any other legally binding agreement.
B. Additional S1P Commitments. S1P further represents and warrants that:
i. The Services and any Professional Services and any Work Product shall be provided in a professional and workmanlike manner and shall not contain disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data;
ii. The Services shall comply with all applicable laws, rules and regulations;
iii. The Services shall perform substantially in accordance with the Documentation, as provided or made available to Client, under normal use and circumstances; and the Work Product shall perform substantially in accordance with the documentation for such Work Product, if any, as provided or made available to Client, under normal use and circumstances;
iv. S1P shall make commercially reasonable efforts to notify Client, at least thirty (30) days in advance and in writing (via e-mail or notifications delivered by or via the Services), of any scheduled changes S1P believes are likely to have a material, adverse impact on the Client’s use of the Service. S1P reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality.
v. If S1P breaches any warranties, Client’s exclusive remedy and S1P’s sole obligation shall be for S1P to make commercially reasonable efforts to correct the non-conformity or, if S1P is unable to correct the non-conformity within thirty (30) days after receipt of Client’s written notice, for Client to terminate the applicable Order Form(s) Services and receive a refund, on a pro-rata basis, of any Fees paid under such Order Form(s) Services that are unused as of the termination effective date.
C. Warranty Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN THE SUBSCRIPTION AGREEMENT: (A) NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICES, ANY PROFESSIONAL SERVICES, ANY WORK PRODUCT, OR ANY MATTER WHATSOEVER; AND (B) S1P AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES OR ANY WORK PRODUCT ARE OR SHALL BE ERROR-FREE, MEET CLIENT’S REQUIREMENTS, OR BE TIMELY. S1P AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SERVICES AND ANY WORK PRODUCT, AND CLIENT HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY S1P.
D. THE SERVICES AND ANY WORK PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. S1P IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY S1P.
E. CLIENT AGREES THAT ITS SUBSCRIPTION TO THE SERVICES AND FEES DUE OR PAID UNDER THE SUBSCRIPTION AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES OF THE SERVICES.
F. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
X. Indemnification
A. By S1P. S1P shall indemnify, defend, and hold harmless Client, its officers, directors, employees, successors and permitted assigns from and against any claims asserted by a third party (collectively, “Claims”) resulting from (i) violation of any law, rule, or regulation by S1P; (ii) breach of the Subscription Agreement by S1P; (iii) infringement of any Intellectual Property Right by S1P, or (iv) S1P’s gross negligence or willful misconduct.
B. If (a) any aspect of the Services or any Work Product (solely in the form as delivered by S1P and unmodified, other than by S1P) are found by a court or, in S1P’s reasonable opinion is likely to be found by a court, to infringe upon a third party Intellectual Property Right, or (b) the continued use of the Services or Work Product are enjoined, S1P shall promptly and at its own expense, in addition to the indemnification obligations above: (i) obtain for Client the right to continue using the Services or applicable Work Product in accordance with the Subscription Agreement and the applicable Order Form(s) or SOWs, as applicable; (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non- infringing functional equivalent. If, after all commercially reasonable efforts, S1P determines in good faith that options (i), (ii) and (iii) are not feasible, or Client reasonably and in good faith determines that such modification or replacement in options (ii) or (iii) are not substantially equivalent, S1P shall remove the infringing item(s) from the Services or applicable Work Product and refund to Client on a pro rata basis any Fees paid by Client for such infringing element(s) that are unused as of the removal date. S1P shall have no obligation to indemnify Client in connection with Claims for which Client has an obligation to indemnify S1P pursuant to Section X as to which Claims each Party shall indemnify the other to the extent of its respective liability for such Claims.
C. THE FOREGOING REMEDIES IN SECTIONS X.A and X.B ARE S1P’S SOLE OBLIGATIONS, AND CLIENT’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY THIRD-PARTY CLAIMS ALLEGING INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
D. S1P shall have no obligation or liability for any Claim under this section to the extent arising from: (x) the combination, operation or use of the Services or any Work Product with any product, device, software or service not supplied, required, requested or approved by S1P to the extent the combination creates the infringement unless such was known, approved, or necessary for the operation of the Services (e.g., use with the Internet); or (y) the unauthorized alteration or modification by Client of the Services, or (z) S1P’s compliance with Client’s designs, specifications, requests, or instructions in integration of Services or creation of any Work Product to the extent the Claim is based on such compliance.
E. By Client. Client shall indemnify, defend and hold harmless S1P, its officers, directors, employees, successors and permitted assigns from and against any claims asserted by a third party based on (a) a breach by Client of the terms of the Subscription Agreement, including, but not limited to, of Sections X.D and X.E of the Subscription Agreement, as well as third-party claims involving Client’s modification, termination ,or suspension of the Services; (b) any actions by S1P in accordance with the terms of the Subscription Agreement that S1P may undertake as an agent of Client with regard to the Agent Purpose. Client shall also indemnify S1P and its officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) finally awarded by a court of competent jurisdiction or agreed in a written settlement agreement signed by Client, arising out of the third-party claims described in this section. Client shall have no obligation to indemnify S1P in connection with Claims for which S1P has an obligation to indemnify Client pursuant to Section 10.1, as to which Claims each party shall indemnify the other to the extent of its respective liability for such Claims.
F. Requirements for Indemnification. Each Party’s respective defense and indemnity obligations under Sections X.A and X.D are contingent upon the other party: (a) promptly giving notice of the third-party claim to the defending/indemnifying party once the claim is known; (b) giving the defending/indemnifying party the opportunity to undertake sole control of the defense and settlement of the claim and not compromising or settling the claim without first seeking the defending/indemnifying party’s approval (though the defending/indemnifying party must not settle such claim unless the settlement unconditionally releases the other party of all liability and does not adversely affect the other party’s business or service in a material manner); and (c) making a reasonable effort to provide appropriate information and cooperation to the defending/indemnifying party, at the defending/indemnifying party’s expense, in connection with the claim. If the defending/indemnifying Party fails or refuses to undertake sole defense of a claim, fails or refuses to defend a claim through final resolution, unreasonably withholds approval of a settlement, or otherwise materially fails to cooperate with this Section, the other Party’s obligations under this Section will be considered fulfilled.
G. LIMITATION OF LIABILITY. EXCEPT FOR (A) SUMS DUE S1P UNDER APPLICABLE ORDER FORMS, (B) CLIENT’S BREACH OF ITS OBLIGATIONS UNDER SECTION V.E (RESTRICTIONS) AND SECTION V.E. (ADDITIONAL CLIENT RESPONSIBILITIES), (C) A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTION XIII.A (CONFIDENTIALITY), (D) EACH PARTY’S OBLIGATIONS UNDER SECTION X (INDEMNIFICATION), AND (E) EACH PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, GOODWILL, DATA, PROFITS OR REVENUE OR ANY BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. EXCEPT FOR (A) SUMS DUE S1P UNDER APPLICABLE ORDER FORMS, (B) CLIENT’S BREACH OF ITS OBLIGATIONS UNDER SECTION V.E (RESTRICTIONS) AND SECTION X.E (ADDITIONAL CLIENT RESPONSIBILITIES), (C) A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTION XIII (CONFIDENTIALITY), (D) EACH PARTY’S OBLIGATIONS UNDER SECTION V.E (INDEMNIFICATION), AND (E) EACH PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY’S AGGREGATE LIABILITY TO CLIENT AND ANY THIRD PARTY IN CONNECTION WITH THE SUBSCRIPTION AGREEMENT OR CLIENT’ ACCESS TO AND USE OF THE S1P SERVICES AND ANY WORK PRODUCT EXCEED THE TOTAL MONTHLY FEES PAID BY CLIENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
XI. Acknowledgement
The Parties acknowledge that the limitations and exclusions contained in Section X and elsewhere in the Subscription Agreement have been the subject of negotiation between the Parties and represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under the Subscription Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the Parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
XII. Data, Privacy Continuity and Support
A. Data Usage by the Parties. Except as otherwise specifically provided in the Subscription Agreement, Client is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable laws in its use of the Services. Client represents and warrants to S1P that Client has all necessary rights, consents and permissions to collect, share and use Customer Data as provided for in the Subscription Agreement (including granting S1P the rights in Section XII), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Data, Client’s accounts with Third-Party Application service providers. By enabling use of the Services with any Source or Destination, including, but not limited to any Third-Party Application, Client authorizes S1P to access Customers’ accounts of such Source or Destination, including, but not limited to any Third-Party Application, for the purposes described in the Subscription Agreement. S1P may also disclose that Client is a Client of S1P and related technical Service data to providers of Third-Party Applications, Sources and Destinations used by Client with the Services.
B. Compliance with Privacy Laws. S1P shall use Customer Data only as permitted by privacy laws and the Subscription Agreement.
C. Security of the Services. S1P’s data security program for the Services shall include reasonable and in no event less than commonly accepted industry standards in light of the services being provided hereunder and the sensitivity of the data that S1P has access to pursuant to the Subscription Agreement, for administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data residing in the Services. S1P shall not be responsible or liable for any deletion.
D. correction, damage, destruction or loss of Customer Data that does not arise from a breach by S1P of its obligations under the Subscription Agreement.
E. Business Continuity & Disaster Recovery. S1P shall maintain and implement throughout the term of the Subscription Agreement commercially reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Services.
F. Support. S1P shall provide technical support for the Service in accordance with terms set forth in the applicable Order Form, for as long as Client is entitled to receive support under the applicable Order Form and the Subscription Agreement.
XIII. Miscellaneous Provisions
A. Confidentiality. Any technical, financial, business, or other information provided by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) and designated as confidential or proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, but not limited to, proprietary, technical, business plans, Client lists, pricing information, operating plans, marketing, operating, performance, cost, know‐how, business pricing policies, programs, data systems, inventions, discoveries, trade secrets, techniques, process, computer programming techniques and all record‐bearing media containing or disclosing such information and techniques (“Confidential Information”) shall be held in confidence and not disclosed and shall not be used except to the extent necessary to carry out the Receiving Party’s obligations or express rights hereunder, except as otherwise authorized by the Disclosing Party in writing.
B. Force Majeure. Each Party hereby agrees to excuse the other’s performance and each Party shall not be liable for delay, or for the destruction, loss, or damage to either Party occasioned by such delay caused by any of the following: an Act of God, Act of War, the act of public enemies, law, enactment, rule, order, the act of government or government instrumentalities, perils of the sea, third party pilot error, failure of civil commotions, seizure or arrest of any vessel, robbers, riots, thieves, barratry, collision, or explosions or other cause of a similar or dissimilar nature not within such Party’s control (collectively a “Force Majeure”). Upon the occurrence of a Force Majeure, the Party so affected shall continue to make all reasonable efforts in good faith to comply with the terms of the Subscription Agreement and shall be in full compliance hereof as soon as is reasonably practicable.
C. Third-party Beneficiaries. Except as expressly provided to the contrary herein, nothing in the Subscription Agreement is intended, nor shall be deemed, to confer upon any person or legal entity other than S1P or the Client any rights or remedies under or by reason of the Subscription Agreement.
D. Status of Parties. The Subscription Agreement is not intended to create, and shall not be interpreted or construed as creating, a partnership, joint venture, agency, employment, master and servant or similar relationship between S1P and the Client.
E. Entire Agreement. The Subscription Agreement constitutes the entire understanding of the Parties with respect to the subject matter contained in the Subscription Agreement and supersedes and terminates any prior agreement or understanding between the Parties. The Parties may modify, vary, or alter the provisions of the Subscription Agreement only by the instrument in writing duly executed by authorized representatives of both Parties.
F. Governing Law; Jurisdiction. The Subscription Agreement shall be governed, interpreted, and construed in accordance with the laws of the State of Arizona.
G. Severability. If any term, clause, or provision of the Subscription Agreement shall be judged invalid for any reason whatsoever, the invalidity thereof shall not affect the validity or operation of any other term, clause, or provision of the Subscription Agreement, and such invalid terms, clauses, or provisions shall be deemed deleted from the Subscription Agreement.
H. Waiver. The failure of either Party at any time to require performance by the other Party of any provision of the Subscription Agreement shall in no way affect the full right to require such performance at any time thereafter. The waiver by either Party of a breach of any provision of the Subscription Agreement shall not constitute a waiver of any succeeding breach of the same or any other provision or constitute a waiver of the provision itself.
I. Notices. Any notice or demand desired or required to be given hereunder shall be in writing and shall be delivered by hand, by electronic means such as DocuSign, by Federal Express, or by deposit with United States mail by Registered or Certified Mail, Return Receipt Requested, postage prepaid, in each case addressed as respectively set forth below or to such other address or physical address as any Party shall have previously designated by such a notice. All notices and demands shall be deemed so delivered upon receipt.
Notices to S1P:
Business Development
Solution One Partners, Inc.
11340 W Bell Road, Suite 110
Surprise, AZ 85378
Email: [email protected]
Notices to Client: To the individual listed on the Order Form or other Client-designated recipient.
J. Counterparts. The Subscription Agreement may be executed in two or more counterparts, and each such counterpart shall be deemed an original hereof. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or another transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
K. Headings. The headings in the Subscription Agreement are for the convenience of reference only and have no legal effect.
L. Assignment. The Subscription Agreement may not be assigned without the prior written consent of both Parties.
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