Master Services Agreement
The following terms and conditions apply to the legal agreement formed between CrossBorder Solutions (“ Provider”) and the customer executing an Order Form that is accompanied by or references this document (“Customer”).
As used in this Agreement:
“Agreement” means the Software-as-a-Service agreement between Customer and Provider, consisting of these Terms and Conditions, including any attached exhibits referenced herein, any Order Form signed by Customer and Provider that accompanies or references this document, and any supplementary Statements of Work entered into by Customer and Provider hereunder for the provision of Professional Services by Provider.
“Applicable Laws” means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state or national) that are applicable to or enforceable against a party or its personnel in relation to their activities under or pursuant to this Agreement.
“Authorized Customer Entities” means specific Customer-affiliated entities named in an Order Form who are authorized to access and use the Service during the Subscription Term under Customer’s subscription.
“Authorized User(s)” means end users of Customer and Authorized Customer Entities who have completed Provider’s online registration process or who otherwise receive a user ID or other access credentials from Provider or Customer authorizing them to access and use the SaaS.
“Authorized Purpose(s)” means those purposes set forth in an Order Form or on Provider’s Web Site describing the purposes for which the applicable SaaS and associated Content are permitted to be used. If no Authorized Purpose is stated, the Authorized Purpose shall be limited to use of the SaaS in Customer’s and Authorized Customer Entities’ internal business operations.
“Confidential Information” means all non-public written or oral information, disclosed by either Party to the other, related to the business or operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding its disclosure ought reasonably to be understood as being confidential.
“Content” means any data, media, information and/or other type or form of content displayed, distributed or otherwise made available to a Party through or in connection with the SaaS or other Services, including User Content and Provider Content.
“Customer Data” means any data owned by Customer or an Authorized Customer Entity that is submitted to the Service for processing, transmission, and/or storage.
“Data Privacy and Security Laws” means all applicable federal, state, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, of or by any United States federal or state government entity, or any authority, department or agency thereof governing the privacy, data protection and security of Personally Identifiable Information and security breach notification relating to Personally Identifiable Information, and any other laws in force in any jurisdiction (regulatory or otherwise) in which the SaaS is being utilized, including Title V of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338), as may be amended from time to time, and its implementing regulations, and the “Interagency Guidelines Establishing Standards for Safeguarding Customer Information” (Exhibit B to 12 CFR Part 364).
“Including” (and its derivative forms, whether or not capitalized) means including without limitation.
“Intellectual Property Rights ” means the legal rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the rights to exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including privacy rights and any rights in databases recognized by applicable law.
“Losses” means, in connection with a Claim that is subject to defense and indemnification by a Party under this Agreement, all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including associated taxes, interest and penalties.
“Order Form” means the proposal and order form issued by Provider and executed by Customer and Provider setting forth the necessary information relating to the SaaS and/or other Services to be provided to Customer under this Agreement and the fees payable to Provider.
“Professional Services” means any professional services performed or contracted to be performed by Provider pursuant to a Statement of Work entered into by the Parties under this Agreement.
“Provider Content” means Content owned, originated or controlled by Provider that is made accessible to Customer and Authorized Customer Entities via the SaaS or other Services.
“Provider’s Web Site” means the web interface of the SaaS platform that Provider offers for interaction with and receipt of the Services.
“SaaS” means Provider’s proprietary web-based software-as-a-service platform and related services made available for use by Authorized Users under this Agreement, as identified on the applicable Order Form, including its technology components, such as Provider’s Web Site and related documentation.
“Services” means, collectively, the SaaS, the Support Services, and any Professional Services performed or provided by Provider pursuant to this Agreement.
“Statement of Work” (or “ SOW”) means a supplementary document in a mutually agreed form that is entered into by the Parties under this Agreement and describes Professional Services ordered by Customer from Provider. Upon execution and delivery of an SOW, it is deemed to form part of this Agreement.
“Subscription Fees” means the non-recurring and recurring fees payable by Customer to Provider for the SaaS and associated Support Services, as set forth in the relevant Order Form, which shall be payable in accordance with the payment terms set forth in the Order Form. Unless and except as otherwise expressly stated in this Agreement, the Subscription Fees are non-cancellable and non-refundable.
“Subscription Term” means the period during which Customer’s Authorized Users are permitted to access and use the SaaS, as set forth in the applicable Order Form.
“Support Services” has the meaning given in Section 3.
“Territory” means worldwide unless otherwise specified in an Order Form.
“Update” means any improvement, enhancement, modification and/or changes to the SaaS offered or provided by Provider to its subscribers at no charge.
“User Content” means any Content submitted, posted or displayed by Authorized Users of the SaaS.
“User Data” means any data or information (other than User Content) received or collected by Provider concerning Authorized Users of the SaaS, including data provided by Authorized Users to register to use the SaaS.
2 ACCESS TO AND USE OF THE SAAS.
2.1. Limited-Purpose Access Grant. Subject to Customer’s and its Authorized Users’ continuing compliance with this Agreement and payment of the applicable fees, Provider hereby grants to Customer a limited, personal, non-exclusive, non-transferable right for Authorized Users of Customer and any other Authorized Customer Entities to access the features and functions of the SaaS in the Territory during the Subscription Term, solely through Provider’s Web Site and solely for the Authorized Purpose(s). This access grant may not be sublicensed, in whole or in part. The scope of Customer’s use of the SaaS is subject to the terms and conditions of this Agreement, including any usage or other parameters or limitations set forth in the applicable Order Form.
2.2 Access Protocols. On or as soon as reasonably practicable after the execution of this Agreement, Provider shall provide to Customer the necessary access credentials and protocols to allow Authorized Users to access the SaaS (the “Access Protocols”). Customer acknowledges and agrees that, as between Customer and Provider, Customer shall be responsible for all acts and omissions of Authorized Users, including any act or omission by an Authorized User, which, if undertaken by Customer, would constitute a breach of this Agreement and any act by a person (whether or not an Authorized User) using Customer’s Access Protocols. Customer shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement that are applicable their use of the SaaS and shall cause them to comply with such provisions.
2.3. Company Account Administration. Customer shall designate at least one Authorized User to act as Customer’s principal point of contact with Provider for purposes of this Agreement.
2.4. Content. The SaaS may enable Customer’s Authorized Users to search for, find, store, manage and use Content of interest that is provided or made accessible through the SaaS. Customer acknowledges that Provider does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, reliability or other attributes of any Content, nor does Provider review or attempt to verify the accuracy or currency of any Content other than Provider Content. As between Customer and Provider, Customer is solely responsible for (i) determining the suitability of any Content for its intended use by Customer, and (ii) as necessary for its intended use, verifying the authenticity, integrity, and accuracy of the User Content prior to using it. Provider has no obligation to preview, verify, flag, modify, filter or remove any Content other than Provider Content. Provider may remove or disable access to any Content at its sole discretion, but is not responsible for any failures or delays in removing or disabling access to any Content unless otherwise provided herein, including Content that may be considered harmful, inaccurate, unlawful or otherwise objectionable.
(b) In addition to complying with applicable Data Privacy and Security Laws, Provider will employ commercially reasonable security and access controls designed to protect the types of data collected and stored by the Service, including Personally Identifiable Information.
2.6. Restrictions. Customer agrees not to act outside the scope of the rights that are expressly granted by Provider in this Agreement. Further, Customer will not (i) use the SaaS in any manner that is inconsistent with this Agreement; (ii) access or use the SaaS or in order to develop or support, or assist another party in developing or supporting, any products or services competitive with the SaaS; (iii) decompile, reverse engineer (unless required by law for interoperability), or use any other method in an attempt to view or recreate any of the source code of the SaaS or extract any trade secrets from it; (iv) use the SaaS to operate the business of a third party or to process data or content provided by a third party for the operation of a third party’s business, or otherwise use the SaaS on a third party’s behalf, or to act as a service bureau or provider of application services to any third party; (v) knowingly or intentionally re-use, disseminate, copy, or otherwise use the SaaS or associated Content in a way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of Provider or any third party; or (vi) sell, lend, lease, assign, transfer, pledge, permit a lien upon, or sublicense any of the rights granted by this Agreement with respect to the SaaS.
2.7. No Interference with Service Operations. Customer and its Authorized Users will not take any action designed or intended to: (a) interfere with the proper working of the SaaS; (b) circumvent, disable, or interfere with security-related features of the SaaS or features that prevent or restrict use, access to, or copying the SaaS or any Content or other data, or that enforce limitations on use of the SaaS or Content; or (c) impose (or which may impose, in Provider’s sole discretion) an unreasonable or disproportionately large load on the SaaS infrastructure.
3 SUPPORT SERVICES; PROFESSIONAL SERVICES.
3.1. Technical Support. At no additional charge and during Provider’s normal business hours (which are 9:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday, excluding Provider-designated holidays unless otherwise specified in the applicable Order Form), Provider will provide reasonable technical support and assistance for Authorized User requests by telephone or sent via email to customer support. Provider may also offer upgraded support services for an additional fee.
3.2. Updates. Customer will be given access to Updates of the SaaS that Provider implements during the Subscription Term. Customer acknowledges, however, that Provider may in the future offer optional value-added functions, features, or other capabilities for a separate fee.
3.3. Scheduled Maintenance. Provider reserves the right to take down applicable servers hosting the SaaS to conduct scheduled and emergency maintenance. Provider will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours and will provide at 24 hours’ advance notice for non-emergency maintenance. Provider will not be responsible for any damages or costs incurred by Customer due to unavailability of the SaaS during scheduled or emergency maintenance.
3.3. Professional Services. Provider has agreed to perform the Professional Services as specified in Exhibit B Statement of Work.
Provider’s fees for the Services are as set forth in the applicable Order Form and shall be payable as stated in the Order Form. The transfer pricing services, previously contracted will be provided on a subscription basis utilizing the Service in accordance with the terms and conditions of the original agreement. Upon acceptance of this Agreement, there will be no additional consideration to be charged given that the transfer pricing services and deliverables remain unchanged, as the remaining contract value with be considered consideration for the grant of the license to the Service.
5 ALLOCATIONS OF RISK.
5.1. Representations and Warranties. (a) Each Party represents to the other (i) that the execution and performance of its obligations under this Agreement will not conflict with or violate any provision of Applicable Law or any other agreement or order by which the representing Party is bound; and (ii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
(b) Provider warrants that any Professional Service performed by Provider under this Agreement will be performed in a good and workmanlike manner in accordance with prevailing industry standards. In the event of a breach of this warranty, Provider’s sole obligation and Customer’s sole remedy will be for Provider to correct or re-perform the affected Professional Service without undue delay to remedy the breach, at no charge to Customer.
5.2. DISCLAIMERS. (a) CUSTOMER REPRESENTS THAT IT IS ENTERING THIS AGREEMENT WITHOUT RELYING UPON ANY PROVIDER REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, SYSTEM RELIABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, AND ALL WARRANTIES THAT MAY OTHERWISE BE IMPLIED. NO WARRANTIES ARE MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
(b) CUSTOMER ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST PROVIDER, FOR THE SELECTION OF THE SAAS TO ACHIEVE CUSTOMER’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SAAS IN CUSTOMER’S BUSINESS. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SAAS, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS. PROVIDER DOES NOT WARRANT THAT THE SAAS WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SAAS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
(c) THE SAAS IS NOT DESIGNED OR PERMITTED TO BE USED IN OR FOR HIGH-RISK OR HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SAAS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). PROVIDER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE SAAS FOR HIGH RISK ACTIVITIES.
5.3. Indemnification of Customer by Provider. Provider agrees to defend, indemnify, and hold harmless Customer and its Affiliates from and against all third-party claims and actions (collectively, “Claims” and individually, a “Claim”), that may, at any time, arise out of or relate to (a) a breach or alleged breach by Provider of any of its representations given in Section 5.1(a); or (b) a Claim that the SaaS or any Provider Content (excluding, however, User Content) provided by Provider hereunder or Customer’s use of same in accordance with the terms hereof infringes any third party’s Intellectual Property Rights; or (c) a Claim arising with respect to Provider’s posting or displaying Provider Content on Provider’s Web Site; and, in each case, associated Losses.
5.4. Indemnification of Provider by Customer. Except for any Claims in respect of which Provider is obligated to indemnify Customer under Section 5.3, Customer agrees to defend, indemnify and hold harmless Provider and its Affiliates from and against all Claims that may, at any time, arise out of or relate to: (a) use of the SaaS or any Content by or on behalf of Customer or an Authorized Customer Entity other than in accordance with this Agreement; (b) the posting, display, distribution, broadcast or other use of User Content by or on behalf of Customer or an Authorized Customer Entity, including Claims that any such use infringes or otherwise violates the rights of any third party, including Intellectual Property Rights, privacy, publicity or other personal or proprietary rights, or that the User Content posted, displayed, distributed, broadcast or otherwise published contains libelous, defamatory or otherwise injurious or unlawful material; and, in each case, associated Losses.
5.5. Indemnification Procedures. If any third party makes a Claim covered by Section 5.3 or Section 5.4 against an indemnified Party (the “ Covered Party”) with respect to which the Covered Party intends to seek indemnification under this Agreement, the Covered Party shall give prompt written notice of the Claim to the indemnifying Party, including a brief description of the amount and basis for the claim, if known. Upon receiving such notice, the indemnifying Party shall be obligated to defend the Covered Party (and its indemnitees) against the Claim, and shall be entitled to assume control of the defense and settlement of the Claim. The Covered Party may participate in the defense and settlement of the Claim at its own expense, using its own counsel, but without any right of control. The indemnifying Party shall keep the Covered Party reasonably apprised as to the status of the Claim. Neither the indemnifying Party nor any Covered Party shall be liable for any settlement of a Claim made without its consent. Notwithstanding the foregoing, the Covered Party shall retain responsibility for all aspects of the Claim that are not subject to indemnification by the indemnifying Party hereunder.
5.6. Limitation of Liability. Except as expressly provided in this Section 5.6, neither Party shall have any liability under or in connection with this Agreement for any indirect, incidental, consequential, special, exemplary or punitive damages, nor any liability for lost profits, loss of data, loss of business opportunity, or business interruption, regardless of the theory of liability (including theories of contractual liability, tort liability, or strict liability), even if the liable Party knew or should have known that those kinds of damages were possible. Each Party’s maximum cumulative liability under or in connection with this Agreement shall never exceed the injured Party’s actual direct damages, capped at an amount equal to the greater of (a) the total amount paid under this Agreement by Customer to Provider during the 12-month period preceding the occurrence of the event giving rise to liability. The foregoing limitations of liability shall not be applicable to a Party’s indemnification obligations under this Section 5 or to any damages that the liable Party is not permitted to disclaim (or, as applicable, limit) under Applicable Law. Customer acknowledges that this Section 5.6 is an essential part of this Agreement, absent which the economic terms and other provisions of this Agreement would be substantially different.
6 DURATION AND TERMINATION.
6.1. Duration of Agreement. This Agreement commences on the Subscription Term start date set forth in the first Order Form executed by both Parties and continues until all Order Forms entered into by the Parties have expired or been terminated in accordance with this Agreement.
6.2. Termination. Either Customer or Provider may terminate this Agreement, and all Order Forms or only affected Order Forms (a) for cause upon written notice to the other Party if the other Party has committed a material breach of this Agreement and the breach remains uncured 30 days after the breaching party has received written notice of the breach from the non-breaching party, or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3. Effect of Termination on Fees. If this Agreement is terminated by Customer pursuant to Section 6.2, any pre-paid fees for the unused portion of the terminated Subscription Term will be refunded to Customer. In all other cases, all fees paid or payable for the terminated Subscription Term are non-cancellable and non-refundable, and any unpaid fees for the remainder of the terminated Subscription Term will become immediately due and payable.
6.4. Other Effects of Termination. Effective immediately upon expiration or termination of this Agreement, (i) all rights granted under this Agreement will become void, (ii) Customer shall cease all use of the SaaS, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights of the other Party that were licensed under this Agreement. However, Customer shall have 30 days after any such expiration or termination to download or otherwise obtain an extract of any Customer Data stored by the Service at the time of expiration or termination.
6.5. Survival. Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination or expiration, or which is necessary for the proper interpretation, administration or enforcement of this Agreement, will survive the expiration or termination of this Agreement (or the applicable Order Form) for any reason.
7 PROPRIETARY RIGHTS.
7.1. Services and Provider Content. The Services (including the SaaS) and Provider Content, and all Intellectual Property Rights in and to them, are and shall remain owned by Provider (and its licensors, as applicable) and are protected by copyright, trademark, patent, trade secret and other laws and treaties. Subject to the terms and conditions of this Agreement, Provider hereby grants Customer and Authorized Customer Entities a limited, personable, revocable, non-sublicensable and non-transferable license for their Authorized Users to access and use the functions and features of the SaaS during the Subscription Term solely for the Authorized Purpose(s). Any derivative work Customer, an Authorized Customer Entity, or any Authorized Users may create of any part of the SaaS or Provider Content, and all rights therein, shall be owned solely by Provider. To that end, Customer hereby irrevocably transfers and conveys to Provider, without further consideration, all right, title and interest that Customer or any Authorized User may have or acquire in any such derivative work and, upon Provider’s request, Customer shall perform, during and after the term of this Agreement, all acts that Provider reasonably deems necessary or desirable to permit and assist Provider, at its expense, to obtain, perfect, and enforce the full benefits, enjoyment, rights and title throughout the world in any such derivative works as provided herein.
7.2. User Content License. Customer hereby grants to Provider a non-exclusive, non-transferable right and license to access, use, host, copy, display, process, transmit, and deliver the User Content as necessary or convenient for Provider to comply with its obligations and exercise its rights under this Agreement.
7.3. Provider Content and Service Usage Data. As between Provider and Customer, Provider shall be and remain the sole owner of all Provider Content, as well as all data in de-identified form pertaining to usage of the Services.
7.4. Feedback. If Provider receives from Customer or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Services or any other Provider products, offerings or services (“ Feedback”), Provider may use, disclose and exploit such Feedback without restriction and without paying any royalties or other compensation, including to improve the Services and to develop, market, offer, sell and provide other products and services.
7.5. No Implied Licenses by Provider. Customer acknowledges that there are no licenses granted by Provider by implication under this Agreement. Provider reserves all rights that are not expressly granted herein. Customer acknowledges that, as between the Parties, Provider owns all Intellectual Property Rights and proprietary interests that are embodied in, or practiced by, the SaaS or other Services, with the exception of Intellectual Property Rights in or to Customer Data or to User Content that may be distributed through the SaaS.
8 CONFIDENTIALITY OBLIGATIONS; PUBLICITY.
All activities of the parties under or in relation to this Agreement are subject to the confidentiality terms attached hereto as Exhibit A. Neither Party may use the name of the other in any published advertising or publicity materials without the prior written consent of the other party. However, and notwithstanding anything to the contrary in Exhibit A, Provider may include Customer’s name on Provider’s customer list and may describe briefly, and in general terms, the nature of the services provided by Provider to Customer.
9.1. Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the Parties shall be governed by the internal laws of the New York without regard to principles of conflicts of laws.
9.2. Force Majeure. Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such Party.
9.3. Insurance. Provider shall have and maintain in force throughout the Subscription Term insurance coverage in types and amounts customarily maintained by reputable companies in the same or similar line of business as Provider.
9.4. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by a single arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall bear its own costs, fees and expenses incurred in connection with the arbitration proceeding, including attorneys’ fees and expenses and witness costs and expenses. The arbitrator shall apportion the fees, expenses and compensation of the American Arbitration Association and the arbitrator between the parties in such amount as the arbitrator determines is appropriate. Arbitration shall take place in New York unless the Parties mutually agree to another location. Notwithstanding the foregoing, a Party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such party’s rights or property. Any civil action seeking injunctive relief, challenging an arbitration proceeding or award or otherwise related to this Agreement will be instituted and maintained exclusively in the federal or state courts situated in New York.
9.5. Notice. All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Provider and Customer shall be their respective addresses specified in the applicable Order Form. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
9.6. Construction; Headings. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or arbitrator by reason of such Party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
9.7. Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, then the Parties agree to replace it with an enforceable provision reflecting the intent of the original provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will remain in full force and effect.
9.8. Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either Party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.
9.9. Entire Agreement; Amendments. This Agreement (including Order Forms entered under it) constitutes the entire agreement between Provider and Customer with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such matter. This Agreement may be amended only by an instrument in writing executed by the Parties’ duly authorized representatives.
9.10. Counterparts; Signatures. This Agreement may be signed in counterparts with the same effect as if the signatures were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. For purposes of this Agreement, a facsimile copy of a Party’s signature made by reliable means shall be sufficient to bind such Party.
[End of Terms and Conditions]
All activities of the Parties under or in relation to this Agreement are subject to the following terms and conditions with respect to Confidential Information:
1 OBLIGATIONS AND PERMITTED USES
With respect to the disclosing Party’s Confidential Information, the receiving Party and its personnel will:
(a) hold all Confidential Information received from or on behalf of the disclosing Party in strict confidence and protect the disclosing Party Confidential Information from any unauthorized disclosure or use by using the same degree of care as it uses to protect its own similar confidential information, but no less than a reasonable degree of care;
(b) not, except with the prior written approval of the disclosing Party, disclose any the disclosing Party’s Confidential Information to any third party except as expressly permitted by Section 1(e) below;
(c) use the disclosing Party’s Confidential Information only for the purpose of performing the receiving Party’s obligations and exercising its rights under this Agreement, and not otherwise for the benefit of the receiving Party or any other party (which prohibition includes use of the disclosing Party Confidential Information in or for published papers and presentations, or its use in or for research that is subject to licensing or ownership obligations to any government or other entity);
(d) reproduce the disclosing Party’s Confidential Information only as reasonably necessary for the purpose of performing the receiving Party’s obligations and exercising its rights under this Agreement;
(e) limit disclosure of the disclosing Party’s Confidential Information to only those of its personnel (employees, contractors, and professional and legal advisors) who have a need to know such Confidential Information for the purposes of this Agreement, who have been advised of the receiving Party’s obligations herein, and who are bound to the receiving Party to preserve the confidentiality of such Confidential Information consistent with the terms hereof; and
(f) not engage in or permit any efforts to reverse engineer, disassemble or decompile any prototypes, software or other tangible objects provided to it pursuant to this Agreement that embody the disclosing Party’s Confidential Information in an attempt to derive the source code for any software or discern any trade secrets.
Any breach or violation of this Section 1 shall constitute a material breach of this Agreement.
The foregoing obligations of confidentiality shall not apply to any particular disclosing Party Confidential Information that the receiving Party can demonstrate by written records:
(a) was publicly disclosed prior to disclosure to the receiving Party, or, subsequent to disclosure to the receiving Party, is publicly disclosed through no fault of the receiving Party;
(b) was known to or otherwise independently developed by the receiving Party prior to the date of its disclosure by or on behalf of the disclosing Party, which knowledge was acquired independently and not from the disclosing Party or its personnel, as shown by documents and other competent evidence in the receiving Party’s possession prior to the time of disclosure; or
(c) is subsequently disclosed to the receiving Party in good faith by a third party who has a right to make such disclosure to the receiving Party without any obligation to restrict its further use or disclosure.
3 COURT ORDERS OR GOVERNMENT ORDERS
If the receiving Party is required to disclose any of the disclosing Party’s Confidential Information in response to a valid order of a court or other valid governmental body in the United States, the receiving Party agrees to give the disclosing Party reasonable advance notice of the required disclosure (unless it is not legally permitted to do so) in order to afford the disclosing Party a reasonable opportunity to contest the disclosure or seek a protective order, and the receiving Party agrees to reasonably cooperate with such the disclosing Party efforts.
4 NO LICENSE
No license to any of the Parties’ respective trademarks, patents, copyrights, or any other intellectual property rights is either granted or implied by this Exhibit A or any disclosure of the disclosing Party’s Confidential Information pursuant to this Agreement, including but not limited to, any license to make, have made, use, sell, offer to sell, or import any device or item embodying any the disclosing Party’s Confidential Information.
5 NO OBLIGATION
Neither this Agreement nor the disclosure or receipt of the disclosing Party’s Confidential Information shall be construed as creating any obligation of the disclosing Party to furnish more or other the disclosing Party Confidential Information to the receiving Party.
6 RETURN OF CONFIDENTIAL INFORMATION
Upon the disclosing Party’s written request to the receiving Party, the receiving Party will return to the disclosing Party (or, at the disclosing Party’s direction, destroy) all of the Confidential Information received from or on behalf of the disclosing Party (including all copies and derivative works made by the receiving Party) and will cease all use of such the disclosing Party’s Confidential Information. Upon request of the disclosing Party, the receiving Party will certify to the disclosing Party, in writing, that all such disclosing Party Confidential Information (including all copies thereof) has been returned or destroyed and all use of the disclosing Party’s Confidential Information has been discontinued.
The disclosing Party represents that it has the right to disclose its Confidential Information disclosed to the receiving Party under this Agreement.
All activities of the Parties under or in relation to this Agreement are subject to the following terms and conditions with respect to the Professional Services:
1 Implementation Services
(a) Work Scope.
Pursuant to the Order Form, in the first year of the Agreement, Provider will perform implementation services. Implementation services includes the collection and preparation of the documentation, performance of benchmark searches, performance of the economic analysis and generation of the local files for any controlled transactions identified by the Customer undertaken by any of the legal entities that are part of Customer’s corporate group at the time that the Order Form is signed. All local files produced will meet the local transfer pricing regulations of each jurisdiction.
As outlined in the Order Form, the implementation services will be performed by Provider at the agreed upon annual fee in the Order Form.
(c) Providers Performance
Providers will perform the implementation services in a workmanlike manner using qualified, efficient, and careful workers. Providers warrants that it will conduct all activities hereunder in accordance with all applicable governmental laws, rules, and regulations (collectively, “Applicable Law”), this Agreement, and good standard industry practices.
(d) Customer Performance
Customer will be responsible for providing Provider with all information reasonably necessary to permit Providers to provide the implementation services. Company will provide Provider with all such information, signoffs and assistance as may be necessary or as Provider may reasonably request to permit Providers to provide the implementation services. In providing these services, Provider will be entitled to rely on all information provided by the Customer. Customer will remain solely responsible for the accuracy and completeness of all information provided.
(e) Implementation Work Assignment
Provider hereby assigns all right, title and interest in any work product generated by Provider in the course of the implementation services, or within the scope of this Agreement, to Customer. This shall include, without limitation, any and all reports, analysis, assessments, and business plans and strategies developed in the course of the implementation services. Where applicable, work generated hereunder shall be considered a work for hire. In the event that Provider should otherwise, by operation of law, be deemed to retain any rights (whether moral rights or otherwise) to any work product generated hereunder, Provider agrees to assign to Customer, without further consideration, and agrees to cause any of its employees and/or agents to assign to Customer its and/or their entire right, title and interest in and to all such work product.
2 Use Services
(a) Pursuant to the order form, Provider will use the Service on behalf of the Customer to update the work, that was completed as implementation services, for each subsequent year of the Agreement.
(b) All use services will be done in accordance to the terms and conditions outlined in regards to implementation services.