JaxMckobe Contract

MASTER AGREEMENT

THIS MASTER AGREEMENT (the “Agreement”) dated this ______ day of _______________, XXX BETWEEN:

XXXX

(the “Vendor”)

AND

Customer’s Name and Address

(the “Customer”)

BACKGROUND:

The Customer is of the opinion that Person 1 has the necessary qualifications, abilities and experience to provide services to the Customer. Person 1 is agreeable to providing such services to the Customer on the terms and conditions set out in this Master Agreement. This Master Agreement comprises of and is subject to the General Terms and Conditions (“General Terms”) herein and all current and future schedules (“Schedules”) or Statements of Work (defined beneath) which are appended to this Master Agreement (the General Terms and the Schedules and all other attachments to the Master Agreement are collectively referred to as the “Agreement”). The initial Schedules and/or Statement of Work are indicated below. The parties may subsequently add a new Schedule or Statements of Work to the Agreement by having an authorized representative from each party execute the relevant Schedule or Statement of Work. This Agreement and each Schedule or Statement of Work attached hereto is not valid until signed by an authorized representative of person 1 and CUSTOMER.

INITIAL SCHEDULES: 

This Agreement incorporates the following documents indicated with an “#”:

 

# Statement of Work

# Managed Services Schedule

# Professional Services Schedule

 

GENERAL TERMS AND CONDITIONS

 

  1. Definitions. Capitalized terms used in this Agreement without definition will have the meanings set forth below:

 

“Bankruptcy Event” means with regard to a party the occurrence of any of the following: (a) such party makes an assignment that benefits of creditors; (b) a petition under any foreign, state or United States bankruptcy act, receivership statute, or anything of that sort, as they currently exist, or as they may be amended, is filed by such party; or (c) such a petition is filed with respect to such party by any third party, or an application for a receiver is made by anyone, and such petition or application is not resolved in favor of the party within sixty

(60) days.

 

“Change Order” means a Change Order executed in accordance with Section 2.4 of this Master Agreement which mirrors a change to Services that are covered in a Schedule to this Agreement. A Change Order shall take effect as an amendment to the applicable Schedule as referenced in the Change Order.

 

“Confidential Information” means confidential information of any party as described in Section 5 of this Master Service Agreement.

 

“Customer Data” shall have the definition given to such term in Section 5.1.

 

“Customer Supplied Software” means any software or equipment, other than person 1 Supplied Software, required to perform the Services. Customer Supplied Software includes Third Party Software.

 

“e Supplied Software” means software and equipment provided by person 1 and listed in a Schedule that may be accessed by Customer solely in connection with the Services and that is not licensed directly to Customer.

 

“Services” means the services to be provided to Customer by person 1 as stipulated in a Schedule or Statement of Work to this Agreement.

 

“Term” shall mean the time-frame during which Customer shall have access to and the right to use the Services as stated in a Schedule or SOW.

“Third-Party Software” means any software or services provided by a third party that is licensed by Customer either directly from a third-party vendor or through person 1 to Customer pursuant to a separate agreement or a Schedule as applicable and excludes person 1 Supplied Software.

 

“SLA(s)” means the SLA(s) attached to a Schedule.

 

“Statement of Work” or “SOW” means a statement of work depicting the Services to be provided to Customer in accordance with this Master Agreement and/or a Schedule hereto. The parties can execute a SOW to add Services to this Master Agreement and/or a Schedule and such SOW shall become an exhibit to this Master Agreement and/or the applicable Schedule.

 

  • SERVICES AND LICENSES

 

  1. Scope. person 1 will perform the Services, provide access to the person 1 Supplied Software and/or additionally distribute, license or sublicense the Third-Party Software acquired through person 1 as specified in a Schedule hereto. Each Schedule and/or Statement of Work shall outline forth, at a minimum (i) the Services to be provided by person 1, (ii) any deliverables or other materials to be provided by each party (including any corresponding particulars and delivery dates), and (iii) the expenses for such Services. Other than as expressly set out in the applicable Schedule, Customer may not resell, lease or sublicense the Services or person 1 Supplied Software.

 

  1. Method of Performing Services. person 1 shall observe at all times the security and safety policies and requirements of the Customer made known to person 1 while performing Services on the Customer’s premises. person 1 , in conjunction with its employees, will determine the method, details and means of performing the Services pursuant to the terms of this Master Agreement (including all Schedules). The scope of the Services shall be mutually agreed upon by both parties in a Schedule and any Statements of Work thereto.

 

  1. Access to Facilities and Information. Customer will provide person 1  reasonable access to hardware, equipment, tools, supplies, software, utilities, information and facilities of Customer reasonably determined by the parties to be necessary to enable person 1 to perform any Services. Customer agrees to cooperate with person 1 and respond in a timely manner to all reasonable requests for access to Customer’s premises and/or additional information to facilitate person 1 delivery of Services.
  2. Change of Scope or Additional Services. Either party may request an amendment in the scope of the Services or request additional Services by submitting to the other party in writing a description of the services request. With regard to each such services request, the parties shall concur upon the scope of services, any subsequent change to fees or additional fees, as applicable, and any change to time schedule or new time schedule, as applicable. In the event the parties agree upon a services request, the parties will either execute a new Schedule, a Statement of Work, or Change Order as suitable. A services request will not be binding on either party unless agreed to in writing by both parties in the form of a new Schedule, Statement of Work or Change Order. If the parties do not execute a new Schedule, Statement of Work or Change Order, then the services request shall be rendered void.

 

  • FEES AND PAYMENT

 

  1. Fees and Charges. Customer and person 1 shall agree upon and determine the fees relevant to each Schedule in each Schedule and/or Statement of Work. Customer agrees to pay person 1 for the Services and Third-Party Software obtained through person 1 pursuant to the applicable Schedule.

 

  1. Reimbursement of Expenses. Customer will be liable and agrees to reimburse person 1 for all reasonable pre-approved costs and expenses incurred during the provision of Services hereunder, including, but not limited to, all travel, accommodation and meal expenses. Upon request, person 1 will provide copies of corroborating documentation as may be reasonably appropriate for Customer or its accountants to confirm the nature and amount of any such expenses.

 

  1. Payment. Customer agrees to pay Person 1 all fees as specified in the applicable Schedule and/or Statement of Work. All invoices shall be sent to Customer’s billing contact person set forth in the appended Schedule (which may be updated by Customer from time to time by written notice to Person 1, which notice may be made by e-mail) and shall, except if in any case explicitly set out in the relevant Schedule or Statement of Work, be payable in full within forty-five (45) days of the date of the invoice, in United States dollars, unless otherwise stated in a Schedule or Statement of Work. person 1 reserves the right to charge a late fee of 1.5% per month (18% per annum), or the highest rate permitted by relevant law, whichever is lower, if payment in full is not received within thirty (30) days of the date due. Furthermore, if payment is not made in a timely manner, XXX reserves the right, without prejudice to any other right or remedy, to suspend the performance of the Services for fourteen (14) days after receipt of a written reminder to Customer of the missed payment period. Customer agrees to pay any costs of collection (including reasonable legal and professional fees) incurred in collecting any sums due hereunder.

 

  1. Taxes. Customer shall pay all applicable sales, use, value added, and other taxes and duties, of whatever nature, federal, state, provincial, or otherwise, which are levied or imposed by reason of this Agreement or any of the Services provided by XXX. Customer shall promptly pay XXX for any such taxes and duties actually paid by XXX on behalf of Customer or which are required to be collected or paid by XXX. Notwithstanding the foregoing, Customer will not pay for any taxes on XXXX net income.

 

  1. Increases. During the Term of each Schedule or Statement of Work, XXX may increase the fees once annually at a rate not to exceed the percentage increment in the U.S. CPI-U since the previous such increase (or, if there has been no previous such increase, the Effective Date of the applicable Schedule or Statement of Work, provided that XXX shall have the right to pass through any increases to the Third-Party Software upon any increase by the Third-Party Software merchant.

  • PROPRIETARY RIGHTS

 

  1. Proprietary Rights. person 1 and Customer will continue to own all copyrights, patents, trademarks, service marks, trade secrets and other proprietary rights that such party owned immediately prior to this Agreement. Unless expressly stated otherwise in a Schedule or Statement of Work, person 1 will possess all right, title and interest in and to all materials, tangible or intangible, created by person 1, alone or jointly with others, during the term of this Master Agreement. Customer acknowledges and agrees that all right, title, and interest in any XXX products or Service provided to Customer hereunder is solely the property of XXX or its vendors. No license is granted to Customer except as to use of the Service as explicitly expressed thus.

 

  • Intentionally omitted.

 

  1. Restrictions. Customer agrees that the Services and XXX Supplied Software contain trade secrets and other proprietary information possessed by JPerson 1 and/or its third-party licensors. Customer shall use the Services and JaxMckobe Supplied Software exclusively for the purpose of utilizing the Services provided hereunder. JaxMckobe agrees that Customer Supplied Software contains trade secrets and other proprietary information owned by Customer and/or its third-party licensors. JaxMckobe shall use the Customer Supplied Software exclusively for the purpose of rendering the Services to Customer in accordance with the relevant Schedules and not for any other purpose.

 

  • CUSTOMER DATA AND CONFIDENTIAL INFORMATION.

 

  1. Customer Data. All Customer data, information or material provided or submitted by Customer or any client of Customer to person 1 in the course of using the Service (the “Customer Data”) shall be the exclusive property of Customer and shall be viewed as Confidential Information possessed by Customer. Customer will have sole responsibility in relation to the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. person 1 may access such Customer Data exclusively for the purpose of delivering the Services. Furthermore, Customer represents, warrants and covenants that it will provide notices and obtain consents from its customers relating to the collection, use, processing, transfer, storage and disclosure of Customer Data, as required by relevant laws.

 

  1. Confidential Information. (a) “Confidential Information” means any information and data,

including in tangible, electronic or other form, of person 1 or Customer, or of either of its affiliates, that is recognized as confidential or proprietary at the time of disclosure or which should be understood to be confidential by the nature of the information or the circumstances of the disclosure. Confidential Information shall include without constraint Services, products, Customer information, business plans, strategies, technology, software, documentation, innovation, methodologies, know­how, technical information, financial information, information regarding each party’s operations, business relationships and the terms and conditions of this Master Agreement. Confidential Information shall not include any information which: (i) is known to the receiving party prior to receipt hereunder from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement; or (iv) is independently developed by the receiving party. A party’s failure to mark any Confidential Information as confidential, protected or proprietary shall not affect its status as Confidential Information under this Agreement

 

  1. Each party agrees to keep confidential all Confidential Information of the other party and its respective affiliates obtained during the course of this Agreement and shall not disclose the Confidential Information to any person other than its employees, affiliates or agents who need to know such information for the purpose of carrying out the terms of this Agreement and who agree in writing to comply with the confidentiality obligations under this Agreement. Without limiting the foregoing, each party further agrees to handle the Confidential Information of the other party with at least the same degree of care as the party handles its own confidential information of like nature and sensitivity, and, in any event, to take all reasonable steps to preserve the confidentiality of such Confidential Information. The receiving party agrees to immediately notify the disclosing party of any actual or suspected disclosure or loss of, or inability to account for, any Confidential Information of the disclosing party. The receiving party further agrees that it will not use the Confidential Information of the disclosing party in any way, for its own account or the account of any third party, except for the purpose of performing this Agreement. In the event that either party is required by law to make any disclosure of any Confidential Information, by subpoena, judicial or administrative order or otherwise, if permitted by applicable law, such party must first give written notice of such requirement to the other party and must permit such party to intervene in any relevant proceedings to protect its interests in the Confidential Information and provide full cooperation and assistance in seeking to obtain such protection.

 

  • WARRANTIES, disclaimers and limited remedies

 

  1. By Customer. Customer represents and warrants to person 1 that (a) Customer is not under any pre-existing obligation inconsistent with the provisions of this Agreement; (b) Customer will use the Services only for lawful purposes in compliance with all laws, rules and regulations (including without limitation any privacy and computer laws); (c) Customer will use the Services in accordance with this Agreement; and (d) Customer has the right and authority to provide person 1 with the Customer Supplied Software, and other materials supplied by Customer for the purpose of enabling person 1 to deliver the Services (e.g.• if necessary, Customer has obtained the right, authority and any required third-party consents to do so).

 

  1. By person 1. person 1 represents and warrants to Customer that (a) person 1 is not under any pre-existing obligation inconsistent with the provisions of this Agreement; (b) person 1 has the right and authority to use and provide Customer with access to the person 1  Supplied Software in rendering the Services hereunder; (c) person 1 will comply with all applicable laws, rules and regulations in delivering the Services (including without limitation any privacy and computer laws); and (d) person 1  will use qualified personnel to complete the Services provided for under each Schedule.

 

  1. Disclaimer. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT OR A SCHEDULE OR STATEMENT OF WORK TO THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY JAXMCKOBE, ITS AGENTS, AFFILIATES AND VENDORS. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY OF SERVICE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR A SCHEDULE OR SOW TO THIS AGREEMENT, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES

 

  1. Limitation of Remedies. In the event person 1 breaches its obligations under this Agreement, as Customer’s sole and exclusive remedy, (i) person 1, upon receipt of written notice from Customer specifying the nature of the default in reasonable detail, shall work diligently to cure the default at  expense as soon as commercially reasonable and, in any case, person 1 shall commence such cure within 5 days of receipt of the default notice from Customer; (ii) Customer shall have the service credit remedies as specified in an SLA; (iii) Customer shall have the indemnification remedies specified in Section

8.1 of this Master Service Agreement; and (iii) Customer shall have the termination rights remedies specified in Sections 7.3 of this Master Service Agreement.

 

  • TERMINATION

 

  1. Term. Unless terminated earlier pursuant to the terms hereof, this Master Agreement shall commence on the Effective Date and continue in effect for six (6) months after the termination or expiration of the last Schedule or Statement of Work under this Agreement. The Term of any Schedule or Statement of Work shall be as set forth in such Schedule or Statement of Work and, unless otherwise agreed in such Schedule or Statement of Work, shall automatically renew for additional terms each equal in duration to the initial Term unless terminated by either party by written notice to the other party no less than sixty (60) days prior to the date of the expiration of the then current Term. Such termination of the Schedule and/or

SOW shall be effective at the end of the then current Term.

 

  1. Termination of the Agreement. Either party may terminate this Agreement (including all Schedules hereto) by written notice to the other party if there occurs a Bankruptcy Event with respect to the other party. person 1 may also immediately suspend or terminate this Agreement and/or a Schedule or Statement of Work if Customer: (i) fails to comply with person 1 Acceptable Use Policy (attached hereto as Appendix A); or (ii) makes use of person 1 Services for unlawful purposes.

 

  1. Termination of Schedules for Default. Either party may terminate a particular Schedule by written notice to the other party (i) if the other party fails to observe or perform or defaults on any material term or condition of the Schedule or this Master Agreement as it relates to such Schedule and does not cure such default or failure within thirty (30) days after written demand by the first party specifying the nature of the default in reasonable detail and stating such party’s intention to terminate; provided, however, that such written demand must be sent within thirty (30) days of the event or such right to terminate will be deemed waived, unless such default is continuing; or (ii) otherwise as expressly provided in this Agreement and/or a Schedule. The failure to pay amounts owed under a Schedule when due shall be considered a material default under the Schedule.

 

  1. Effect of Termination. Upon termination of the Agreement or an individual Schedule, all rights and obligations of the parties under the terminated Schedule shall cease, except for those rights and obligations that by the terms of this Agreement or the nature of the right or obligation survive termination. Termination will not relieve either party of any obligations that arose prior the effective date of the termination. Upon termination of this Agreement, (i) Customer must cease using any terminated Services and/or JaxMckobe Supplied Software; (ii) each party will return to the other party any Confidential Information of the other; (iii) each party will return to the other any property of the other party in its possession; (iv) JaxMckobe will provide Customer with back-up media containing all Customer data and JaxMckobe shall remove all copies of Customer data from JaxMckobe’s systems and property; and

(v) JaxMckobe will provide, at Customer’s expense, reasonable termination/expiration assistance requested by Customer to facilitate the orderly transfer of Services and migration of Customer Data and Customer Supplied Software to Customer or another third-party provider. Customer shall pay JaxMckobe all amounts owed

 

  1. Transition Services. Upon termination of this Agreement and/or a Schedule or Statement of Work and provided that Customer is not in breach of its payment obligations hereunder, person 1 will: (i) assist Customer with the development of a transition plan to provide for Customer’s continuation of operations without interruption or adverse effect and a smooth and orderly transfer of the Services to Customer or Customer’s designee. All transition Services will be performed at person 1 then current rates. At Customer’s request, and subject to continued payment in accordance with the terms of this Agreement, person 1 will continue to provide Services hereunder until a transition plan has been agreed upon by the parties; (ii) perform all obligations set forth in the transition plan agreed upon by the parties, subject to Customer’s payment of person 1 then current rates for such transition Services; and (iii) maintain Customer’s data, web site content, databases, emails messages and account settings during the term of the transition plan, not to exceed 30 days. In the event Customer requires person 1 to preserve Customer’s data, web site content, databases, emails messages and account settings for a period longer than 30 days, XXX shall be entitled to charge Customer for such server use at its then current rates. All fees for transition Services shall be paid, in advance, by the Customer at the commencement of the transition Services.

 

  • INDEMNIFICATION AND LIMITATION OF LIABILITY.

 

  1. person 1 Indemnity. person 1 agrees to indemnify and hold harmless Customer, its affiliates and any employee, director, officer or agent thereof, against all liability to third parties (including reasonable attorney’s fees) arising from a claim that the use of the Services by Customer according to the terms of this Agreement infringes and/or misappropriates any copyright or trade secret of any third party, provided, however, that Customer promptly

notifies person 1 in writing of any such third-party claim. person 1, at its sole option, may elect to conduct the defense of any such third-party claim, including without limitation any settlement thereof, and Customer agrees to cooperate fully with such defense. This Section 8.1 sets forth the exclusive remedy of Customer and the entire liability of person 1 with respect to any claim for intellectual property infringement or misappropriation.

 

  1. Customer Indemnity. Customer agrees to indemnify and hold harmless JaxMckobe, its affiliates and any employee, director, officer or agent thereof, against all liability to third parties (including reasonable attorney’s fees) arising from a claim (i) that any of the Customer Data or other content or materials provided by Customer (or its end users) or that Customer instructs person 1 to use or develop infringes and/or misappropriates any copyright, trade secret, or other intellectual property of such third party, is defamatory or slanderous. or that the collection or use of such Customer Data violates the privacy rights of another; (ii) by end users or customers of Customer that they were damaged, suffered a loss, or have any other claim by virtue of their or Customer’s use of the Services. including without limitation any claims regarding a defective product sold by Customer; (iii) that any hardware, software or other materials provided by Customer is not properly licensed for the use contemplated by this Agreement; or (iv) arising as a result of Customer’s breach of the Acceptable Use Policy set forth in Appendix A, provided, however, that person 1 promptly notifies Customer in writing of any such third-party claim. Customer, at its sole option, may elect to conduct the defense of any such third-party claim, including without limitation any settlement thereof, and JaxMckobe agrees to cooperate fully with such defense.

 

  1. Limitation of Liability. (a) JAXMCKOBE, ITS AGENTS, AFFILIATES AND VENDORS SHALL NOT BE LIABLE FOR ANY: (i) LOSS OF SOFTWARE, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR REVENUES, LOSS OF CONTRACTS, LOSS OF OPERATION TIME, LOSS OF GOODWILL OR ANTICIPATED SAVINGS; OR (ii) ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND OF WHATEVER NATURE, EVEN IF FORESEEABLE OR IF A PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY AND IN ALL CASES HOWEVER CAUSED AND WHETHER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE.

 

  1. EXCEPT WITH RESPECT TO ITS INDEMNITY OBLIGATIONS, IN NO EVENT SHALL JAXMCKOBE’S, ITS AGENTS’, AFFILIATES’ OR VENDORS’ LIABILITY UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EXCEED ONE HUNDRED (100%) PERCENT OF THE FEES FOR THE SERVICES PAID BY CUSTOMER UNDER THE APPLICABLE SCHEDULE OR SOW GIVING RISE TO THE LIABILITY DURING THE TWELVE

(12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE LIABILITY.

 

  1. person 1 will exercise no control over the content of the information passing through person 1 network except those controls expressly provided herein.

 

  1. Basis of the Bargainj Failure of Essential Purpose. The parties acknowledge that person 1 has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

 

  1. Security. (a) The Customer is responsible for using reasonable security precautions in connection with the use of the Services, including appropriately securing and encrypting sensitive data stored or transmitted using the Services; and taking appropriate measures to otherwise prevent access to sensitive data by xxx where person 1 access to the premises, systems or networks managed by the Customer may result in its exposure. The Customer is also responsible for maintaining of the confidentiality of client credit card numbers and personal information.

 

(b) person 1 shall provide industry standard security to protect any web server which XXX uses to provide the Services against the risk of penetration by a third party. Further, XXX warrants that XXX will use industry standard measures to prevent the penetration of any web server providing Services by any unauthorized third party utilizing any device or method intended to give a third-party unauthorized access to the web servers providing the Services (collectively “Unauthorized Intrusions”). If XXXX incorporates into the Services programs or routines supplied by other vendors or contractors, XXXX will take industry standard precautions to ensure that such programs or routines also prevent Unauthorized Intrusions. Notwithstanding any other limitations in this Agreement, XXX agrees to notify client upon discovery of any Unauthorized Intrusions that have occurred or are reasonably suspected to have occurred. If Unauthorized Intrusions are discovered or reasonably suspected to have occurred in the Services, XXX agrees to take reasonable action, to identify, contain and/or remediate such Unauthorized Intrusions or, if the Unauthorized Intrusion is notify Customer to identify, contain and/or remediate such Unauthorized Intrusions, as applicable. In the event the identity, containment and/or remediation of the Unauthorized Intrusion is carried out by Customer, Customer shall provide XXX with a written report of the steps taken to prevent further Unauthorized Intrusions affecting the Services. In the event the identity, containment and/or remediation is carried out by XXX  and the Unauthorized Intrusion is found to have been caused by Customer, Customer agrees to reimburse XXX for its reasonable time and expenses in investigating, containing and/or remediating such Unauthorized Intrusion, at XXX then-current standard hourly rates and any out-of-pocket expenses. Such expenses may include the use of third-party service providers selected by XXX.

 

  • General

 

  1. Relationship of parties. In providing the Services under this Master Agreement it is expressly agreed that XXX is acting as an independent contractor and not as an employee of the Customer. XXX and Customer acknowledge that this Master Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service.

 

  1. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of the permitted successors and assigns of each party. Customer shall not have the right to assign this Agreement without the prior written consent of XXX; provided that Customer shall be obligated to assign this Agreement to a successor in interest in the event of a change of control resulting from a merger, sale of stock or sale of substantially all of the assets of Customer relating to the Services. XXXX may assign this Agreement to a successor in interest resulting from a merger, sale of stock or sale of substantially all of the assets of XXX relating to the Services.

 

  1. Affiliates and Contractors. Customer may extend the benefits of this Agreement to its Affiliates (entities that control, are controlled by or under common control with Customer) subject to the payment of additional fees based on number

of users, increased requirements for the hosting environment as further specified in an SLA or other increased requirements that increase the cost of delivery of Services by person 1. Customer shall be responsible for ensuring that its Affiliates and authorized third party contractors comply with the terms and conditions of this Agreement and Customer shall be liable for the acts and omissions of such parties. person 1 shall have the right to use subcontractors in delivering the Services. person 1 will be responsible for the Services performed by its subcontractors.

 

  1. Complete Understanding; Modification. Any amendment or modification of this Master Agreement or additional obligation assumed by either Party in connection with this Master Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.

 

  1. Schedules. A Schedule and/or SOW may add new or additional terms and conditions to this Master Service Agreement. The parties agree that a Schedule and/or SOW may modify the General Terms to the extent that such Schedule and/or SOW expressly amends the General Terms. Except as provided above, in the event of any conflict or inconsistency between the provisions of the General Terms and those of a Schedule and/or SOW under this this Master Service Agreement, the General Terms shall prevail. In the event of a conflict between the provisions of a Schedule and an SOW under the Schedule, the terms of the Schedule shall prevail.

 

  1. Notices. Any notices required or permitted hereunder must be given to the appropriate party at the address specified on the first page or at such other address as the party may specify in writing. Such notice will be deemed given upon personal delivery to the appropriate address or the next day following mailing if sent by overnight mail by a nationally recognized carrier provided that notice of change of address will be deemed effective only upon receipt. In case a Party changes its address, it must inform the other Party in writing.

 

  1. GOVERNING LAW; CONSENT TO JURISDICTION. It is the intention of the Parties to this Master Agreement that this Master Agreement and the performance under this Master Agreement, and all suits and any special proceedings under this Master Agreement, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the State of New York, without regard to the jurisdiction in which any action or special proceeding may be instituted.
  2. Force Majeure. Except for payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party (“Force Majeure”), that party will be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.

 

  1. Waiver or Failure to Act. The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Master Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.

 

  1. No Hire Clause. Both Parties understand and agree that any attempt on the part of any Party to induce other employees or contractors to leave the other Party’s employ, or any effort by any Party to interfere with the other Party’s relationship with its employees or other service providers would be harmful and damaging to the other Party. Until this Master Agreement expires or is terminated, a Party will not: in any way directly or indirectly induce or attempt to induce any employee or other service provider of the other Party to quit employment or retainer with the other party; otherwise interfere with or disrupt the other Party’s relationship with its employees or other service providers; discuss employment opportunities or provide information about competitive employment to any of the other Party’s employees or other service providers; or solicit, entice, or hire away any employee or service provider of the other Party.
  2. Participation in Drafting. This Master Agreement has been negotiated at arm’s length between persons knowledgeable in the matters dealt with herein, and each party has been represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law, statutes, legal decisions, or common law principles of similar effect, which would require interpretation of any ambiguities in this Master Agreement against the party that drafted it, are of no application and are hereby expressly waived. The provisions of this Master Agreement shall be interpreted in a reasonable manner to effectuate the intentions of the parties.

 

  1. Compliance with Laws. Each party shall comply with all applicable laws, rules and regulations in respect of all activities conducted under this Agreement.

 

  1. Counterparts and PDF/Fax Signature. This Master Agreement may be executed in any number of counterparts, each of which shall be deemed to constitute an original agreement, and all of which shall constitute a single agreement. A facsimile or electronically transmitted signature shall be considered the same as an original signature.

        

IN WITNESS WHEREOF the Parties have duly affixed their signatures under hand and seal on this _________

Day of ______________________________, XXXX.

 

_________________________________________ XXX  Representative’s Name & Position

WITNESS: ________________________________ Signature: ______________________________ 

 

________________________________________ Customer

WITNESS: ________________________________ Signature: ______________________________ 

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