Master Service Agreement

12.INDEMNIFICATION

 

Except as provided below, Customer agrees to defend, indemnify, and hold harmless Company and its directors, members, officers, employees, licensors and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including attorneys’ fees, arising from: (i) Customer’s failure to use Services as permitted under this Agreement; (ii) from any violation or breach of this Agreement by Customer; (iii)  any action or inaction of Vendor to whom Customer grants access to the API Service related to Vendor’s access, use, handling, receipt, disclosure or storage of Customer Data and (vi) any failure of Vendor or Customer to comply with state or federal regulations related to privacy, data protection, confidentiality or security of Personal Information; provided that Company (a) gives Customer written notice of any such claim within fifteen (15) days of Company’s receipt of such claim, (b) permits Customer to have sole control and authority with respect to the defense or settlement of any such claim, and (c) provides Customer all reasonable cooperation, information, and assistance in connection with the defense or settlement of any such claim, at Customer’s cost and expense.

 

Except as provided below, Company agrees to defend, indemnify, and hold harmless Customer and its directors, members, officers, employees, and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including reasonable attorneys’ fees, arising out of any and all third party claims that the Services infringe a valid U.S. patent or copyright or misappropriate a trade secret of a third party provided that Customer (a) gives Company written notice of any such claim within fifteen (15) days of Customer’s receipt of such claim, (b) permits Company to have sole control and authority with respect to the defense or settlement of any such claim, and (c) provides Company all reasonable cooperation, information, and assistance in connection with the defense or settlement of any such claim. If the Services becomes, or in Company’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Company may, at its option and expense,

 

(i) procure the right to allow Customer to continue to use the Services or (ii) modify or replace the Services or infringing portions thereof to become non-infringing, without loss of material functionality. If Company is unable to provide one of the remedies in (i) or (ii) within forty-five (45) days of notice of the claim, Company shall have the right to terminate this Agreement. Notwithstanding the foregoing, Company shall have no liability or obligations with respect to any patent, copyright, or trade secret infringement claim based upon or arising out of (i) any modification or alteration to the Services not approved by Company, (ii) any combination or use of the Services with products or services not supplied by Company or approved in writing by Company in advance of such combination, (iii) any patent, copyright or trade secret in which Customer or its affiliates have an interest, or (iv) use of the Services not in accordance with its documentation or outside the scope of the license granted under this Agreement. Customer agrees to defend, indemnify, and hold harmless Company and its directors, members, officers, employees, and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including reasonable attorneys’ fees, arising out of any and all third party claims enumerated in clauses (i) through (iv) above. The foregoing states the entire liability of Company with respect to infringement of patents, copyrights, trade secrets, or other proprietary rights by the Services or any part thereof. Customer will immediately inform Company as soon as Customer becomes aware of any threatened or actual liability claim by a third party relating to the Services.

 

13. NOTICES

 

Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by either Party pursuant to the terms of this Agreement shall be in writing and shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid), or (d) upon confirmation of receipt by email, in each case, addressed to the Party at such Party’s address as set forth on the signature page of this Agreement or as subsequently modified by written notice.

 

14. SUNSET POLICY.

 

The Services are subject to Company sunset or discontinuation policy ("Sunset Policy") and Company reserves the right to discontinue all support for the Services, or for any features, services or content accessible through the Services, in accordance with such Sunset Policy. Company focuses on supporting rapidly-changing technologies, and on innovating to provide customers with the most stable and useful set of products and services possible, and consequently, products and services may go through major updates or be replaced with newer products. As new versions, products, and services are introduced, Company actively plans for sunset of older services and software versions as well as specific product features. Below is Company sunset policy (“Policy”) to help customers better manage their end-of-life transition and to understand the role Company can play in helping to migrate to updated alternative Company technologies. This Policy explains the type of support services Company will provide for Licensed Product and services during a product's life cycle. For the purposes of this document, “Support” and “Maintenance” are used interchangeably.

 

a. Definitions.

·Sunset/Sunsetting or End of Life (EOL) refers to when Company ceases marketing or offering a particular Licensed Product or a Major Release for a particular Licensed Product. When a Licensed Product is sunsetted, it enters the sunset, or EOL, period. The Sunset or EOL Period starts when the next major version of a product is released—or at such other time when Company announces to customers that a given product has been discontinued—and ends at the time designated by Company in the EOL or Sunset announcement, which may vary.

· End of Support (EOS) begins after the expiration of the sunset period when software shall be deemed at End of Support, or as an EOS version or product.

·Company Community refers to Company’s online knowledge sharing site called Company Community, located at https://community.Company.com. The content of the Company Community sites is provided on an "as is" basis.

·Licensed Product refers to the Company software product or services you license, which is governed by the applicable agreement between you and Company.

·Releases for Licensed Product are categorized as Major Releases or Maintenance Releases.

·Major Release/Version means a new release of the Licensed Product that incorporates the last Maintenance Release(s) (if any) and may include additional enhancements to the Licensed Product. Major Releases may include architectural changes and major feature changes, as well as new features and functionality. The terms “Release” and “Version” are used interchangeably in this document.

·Maintenance Release means a release of the Licensed Product that provides cumulative patches for a particular Major Release. A Maintenance Release typically does not contain new features or new functionality. Patches are software code updates that resolve specific software deficiencies. These are typically designated as a build number associated with a specific release.

·Support Services are the maintenance support services for Licensed Product. Customers must have a current agreement and be up to date on all amounts due under the agreement in order to receive Support Services (in accordance with this Policy).

 

b. FullSupport. provides Full Support for Licensed Product for which the customer has a current agreement for the current version of any software or services with all Maintenance Releases applied. For customers with the current major version of the software who have not applied all available patches, support may be limited to configuration assistance, activation assistance, and general questions.

 

c. SunsetSupport. provides a more limited level of Support Services for software that is in the Sunset Period. Limited support is provided for customers who have installed all patches available to the Sunset Version. Support services may not be provided if all available fixes have not been installed. If all patches have been installed, the customer shall provide Company with a fully reproducible scenario in which the error occurs. For the first nine (9) months after Sunset is initiated for a product, Company may, at its option, provide an additional patch to the Sunset Version or offer a work-around. Partial support will be subject to the availability of resources and may be limited as Company determines. At nine (9) months after Sunset, Company shall provide configuration support or work-arounds only. No defects shall be corrected in Sunsetted versions after nine (9) months. No new features or enhancements shall be added to Sunsetted versions of software.

 

d. EndofSupport.After Sunset or End of Life (EOL), a product shall be deemed at End of Support (EOS). EOS products and versions shall have Company Community (self-help) support only. Customers may opt to purchase pay-per-incident (PPI) support for EOS products or versions; however, this support shall be limited to configuration only and shall not include any fixes, patches, or enhancements to the unsupported version. PPI support entitles the customer of an EOS product or version to submit a ticket through the online HelpDesk. Fees for PPI shall be at Company’s then-current applicable rates.

 

e. ContractCommitments. Notwithstanding any of the foregoing, in the event that any Licensed Products or Versions thereof are scheduled to reach EOL or EOS without a replacement or new version of the Licensed Products being made available to the customer, such Licensed Products will be supported by Company in accordance with the applicable Order Form and Service Agreement for the remainder of the then-current term of such agreement.

 

15. GENERAL

 

a. Limitation of Action. Any legal action arising out of Company’s provisioning of Services, including the failure, malfunction or defect in the Services shall be brought within one (1) year of the occurrence or deemed waived.

 

b. Non-Solicitation. Neither party to this Agreement will solicit for employment nor knowingly employ any then current employee of the other party either directly or indirectly through a third-party during the term of this Agreement, including any renewal thereof, without the mutual agreement of the parties.

 

c. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Alabama, excluding the conflicts of law provisions thereof and both parties stipulate to the exclusive jurisdiction of the state and federal courts of that jurisdiction. The parties agree that any disputes among them arising from or related to this Agreement shall be resolved by binding arbitration conducted under the auspices of the American Arbitration Association in a mutually agreed upon location. The parties shall each be responsible for initial payment of one-half of any arbitration fees, but upon final resolution the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs. Notwithstanding the foregoing arbitration provision, Customer acknowledges that a breach or threatened breach of this Agreement by Customer or its representatives may cause irreparable harm to Company for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Customer or its representatives, Company shall, in addition to any and all other rights and remedies that may be available at law (which Company does not waive by the exercise of any rights hereunder), be entitled to seek a temporary restraining order, injunction, specific performance and any other equitable relief that may be available from a court of competent jurisdiction, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.

 

d. No Assignment. Customer shall not assign any of its rights under this Agreement nor delegate its duties hereunder to another person or entity without the prior written consent of Company, which consent may be granted or withheld in Company’s sole and absolute discretion. Any permitted assignment shall be subject to the permitted assignee or transferee agreeing in writing to comply with all the terms and restrictions contained in this Agreement. Any attempted assignment in violation of this Section shall be void. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective trustees, successors, permitted assigns and legal representatives.

 

e. Password Security. Strong passwords must be used to access all IT services, including the Admin Website logon. Strong passwords are defined as having more than eight characters, not matching standard “dictionary” definitions. Customer acknowledges that Company may maintain, or use a third party who maintains, physical and technical security of the servers at a level commensurate with reasonable commercial practices for similar types of information (such as, but not limited to, lock and key, encryption, and blocking and identifying unauthorized access to data). 

 

f. Severability. In the event that any term or provision in this Agreement is held to be invalid, void, illegal or unenforceable in any respect, this Agreement will not fail, but will be deemed amended, to the least extent necessary, to delete the void or unenforceable term or provision, and the remainder of this Agreement will be enforced in accordance with its terms and will not in any way be affected or impaired thereby. In the event that any term or provision of this Agreement is held to be overboard or otherwise unreasonable, the same will not fail, but will be deemed amended only to the extent necessary to render it reasonable, and the Parties agree to be bound by the same as thus amended.

 

g. Changes.  Company reserves the right, in its sole discretion, to make any changes to the Services from time to time that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company’s services to the Customer and/or any Customer Users, (ii) the competitive strength of or market for Company’s services, or (iii) the Services’ cost efficiency or performance; and/or (b) to comply with applicable law. In addition, upon Customer’s request, Company may (in Company’s discretion) add or delete some portion of the Services, without requiring a separately signed agreement, provided that such changes do not increase or decrease the total fees under this Agreement by more than ten percent (10%). Company reserves the right to modify this Agreement to correct errors and omissions, or substitute Services with reasonably equivalent Services (provided that the change will have no effect on the total fees under the Agreement).

 

h. Rights upon Termination. Upon the expiration or any termination of the Agreement, Customer shall promptly return to Company, or with Company’s prior written consent destroy, any information from the Services in Customer’s possession or control. If the Agreement is terminated prior to the expiration of the Initial Term or the applicable Renewal Term, Customer shall pay to Company within thirty (30) days after the effective date of such termination an amount equal to the total remaining annual license and maintenance fees owed in accordance with the Monthly Managed Services Fee, defined as the current monthly fee multiplied by the number of months in the Initial Term or the then current Renewal Term, as applicable, less the aggregate amount of the license and maintenance fees actually paid by Customer to Company during the Initial Term or the then current Renewal Term, as applicable plus any additional fees and costs at Company’s then current rates. Upon termination of the Agreement, and subject to payment of all fees due under this Agreement, Company agrees to provide, in an industry standard format, an export of Customer’s data in accordance with Company’s then-current data export policy following payment of any applicable fees at then current standard fees.

 

i. Force Majeure. In no event will Company be liable or responsible to Customer, or be deemed to have defaulted under or breached the Agreement any failure or delay in fulfilling or performing any term of these Terms and Conditions, when and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of the Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law, rules, regulations or orders, or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.

 

j. No Third-Party Beneficiaries. Except as expressly provided, the Agreement are for the sole benefit of the Parties and nothing herein expressed or implied will give or be construed to give to any person, other than the Parties, any legal or equitable rights hereunder.

 

k. Setoff. All amounts payable to Company under the Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).

 

l. Monitoring. Company may monitor Customer’s and Customer User’s use of and access to the Application or Services to ensure compliance with the Agreement and any other applicable rules, policies, deadlines and instructions. By using the Application or Service, each of Customer and Customer User expressly consents to such monitoring.

 

m. Collection and Use of Private Information. Each of Customer and Customer User acknowledges that when such party download, install or use the Application or Service, Company may use automatic means (including, for example, cookies and web beacons) to collect information about Customer User’s Mobile Device and about Customer User’s use of the Application or Service. Customer and Customer User also may be required to provide certain information about Customer User as a condition to downloading, installing or using the Application or certain of its features or functionality. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using and providing information to or through this Application, Customer User’s consent to all actions taken by us with respect to Customer User’s information in compliance with the Privacy Policy.

 

n. No Waiver. The rights and remedies provided by the Agreement are cumulative. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

 

o. Exclusivity. During the Term, Customer agrees that Company will be the exclusive provider of the Services at all present or future locations, sites, or facilities that Customer owns or controls. Customer shall not solicit bids, quotes, or contracts another provider of the Services during the Term of this Agreement for the provision of Services to such additional locations, sites, or facilities not presently covered by this Agreement.

16. SPECIFIC MOBILE TERMS

 

If Customer’s Order Form selected mobile services, the following additional terms also govern that product.

 

a.  No Implied License; Limitations on Use. Customer acknowledges and agrees that this Agreement in no way shall be construed to provide to Customer any express or implied license to copy, reproduce, use, sell, distribute, prepare saleable derivative works based upon or sublicense the Software or Admin Website other than as expressly set forth herein or in Customer’s Order Form Customer expressly agrees not to take any of the foregoing actions or permit any of the foregoing actions to be taken by anyone who has access to the Software or Admin Website. The Software and Admin Website shall be used solely in connection with Customer’s business. Customer shall not use or permit or allow the use of the Software or Admin Website or any portion thereof in any other manner without the written consent of Company, which consent may be withheld at Company’s sole and absolute discretion, nor shall Customer decompile, translate, reproduce, reengineer, or reverse engineer the Software, Admin Website, or any part thereof, or otherwise attempt to derive the source code for any part thereof.

 

b. Corrections, Updates, and New Versions of Software. Company may, at its option and in its sole and absolute discretion, provide Customer with New Versions, Corrections, and/or Updates of the Software or Admin Website. If Company provides Customer with Corrections, Updates, or New Versions of the Software or Admin Website, such Corrections, Updates, or New Versions shall be deemed part of the Software or Admin Website (as applicable). Customer understands that Company reserves the right to supplement, modify, update, or otherwise alter the Admin Website and its functionality, provided that any such action shall not materially or substantively change the functionality of the Admin Website nor in any way breach Company’s obligations. Company shall use its best efforts to notify Customer in advance of any such action with regard to the Admin Website.

 

c. Postings to Admin Website. Company shall in no event be responsible or liable for any content posted upon the Admin Website by Customer, including with respect to Customer or any Member (“Customer Content”). Customer shall at all times retain all right and title to Customer Content, and no right, title, or interest in any Customer Content is transferred to Company. Customer shall defend, hold Company harmless from, and indemnify Company against any and all third party claims, causes of action, damages, costs, fines, penalties, and expenses of any kind, including, without limitation, reasonable attorneys’ fees, (collectively, “Losses”) arising out of or relating to any Customer Content posted upon the Admin Website by Customer or any person using Customer’s access to the Admin Website, provided that such Loss is the not the result of Company’s modification of such Customer Content or failure to remove or uncache such Customer Content upon Customer Request.

 

d. Termination. Upon the expiration of the mobile agreement, the license granted to Customer shall terminate, expire, and be of no further force or effect. Upon the termination or expiration of the mobile agreement, any Customer Content integrated into or posted on the Software or on the Admin Website or provided to Company in any manner shall be removed from Company servers and possession and returned to Customer or destroyed at Customer’s request. Upon expiration of the mobile services agreement and request of the Customer, any and all data regarding Customer and any of Customer’s members shall be provided to Customer in a reasonable format, in accordance with Company’s then-current data export policy, and subject to payment by Customer of the then-current data-export fees, as well as any other fees remaining due under this Agreement.

reserves the right to remove any Data or Database from the Data Access at any time.

 

17. Privacy Policy Incorporated

 

Customer acknowledges that Company’s Privacy Policy is an integral part of this Agreement and agrees to abide by the terms and spirt of the Privacy Policy, which may be found at https://www.daxko.com/privacy

 

18. ENTIRE AGREEMENT

 

This Agreement and all order forms, schedules, attachments, and terms and conditions, including, without limitation, the Order Form, the Customer Data Access Request Form (as applicable), which are incorporated by reference herein, or in an applicable Order Form, collectively represent the complete agreement and understanding between COMPANY and Customer with respect to the subject matter herein and supersede any other written or oral agreement. The terms and conditions of this Agreement may only be modified in writing and must be signed by COMPANY and Customer; provided, however, that from time-to-time, COMPANY may update and revise this Service Agreement, and such updates and revisions shall become a part of this Agreement upon COMPANY providing notice of the updated and revised terms to Customer.