Master Services Agreement
MASTER SERVICES AGREEMENT
Last Modified: April 24, 2023
1.1. Introduction. Company provides networking and professional resources through a cloud-based platform where members and corporate partners can connect for professional development.
“Account-Related Information” means contact information, biographical information, contacts used for marketing and user account administration, and any other information otherwise maintained in or used for access to existing accounts.
“Affiliate” means any entity controlling, controlled by, or under common control with the referenced entity, where the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” means this Master Services Agreement, each Order From, each SOW (if any), and the End User Terms of Service (defined below), as each may be amended from time to time.
“Corporate Partner” means the Customer identified in the Order Form.
“Customer Content” means data or content submitted to Company by Customer in connection with the use of the Services (not including Customer End User Data).
“Customer End Users” means each user granted access by the Corporate Partner under the terms of the Subscription listed in the Order Form.
“Customer End User Data” means data and Personal Information related to Customer End Users submitted by Customer End Users to Company.
“Documentation” means the technical user documentation, if any, provided with the Services.
“Laws” means all applicable local, state, federal, foreign and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Order Form” means each Order Form referencing this Master Services Agreement.
“Services” means Company’s web-based platform for professional networking and development to support, promote, and grow women in leadership positions. Services shall also include a) any support services provided under a SOW, including onboarding assistance or in-person events, corresponding SDKs, APIs, documentation or software that may be made available by Company in connection with such Service; b) any APIs, documentation, or other software made available by Company in connection with the Services; c) any customization, white labeling, special features developed for the Customer, if any; and c) subsequent enhancements, updates and bug fixes to the foregoing made generally available by Company for no additional fee.’
“Subscriptions” means the subscriptions listed in the Order Form.
2. Company SERVICES
2.1. Access to Services. Company will provide to Customer the specific Services as specified in the applicable Order Form. Customer and Permitted Users may access and use these Services during the Subscription Term (as defined below) solely for its own benefit and in accordance with the terms and conditions of this Master Services Agreement, the Documentation, an SOW (if any), and any scope of use restrictions designated in the applicable Order Form.
2.2. Permitted Users.
2.2.1. General. Use of and access to the Services is permitted by and only by employees, Contractors and Affiliates of the Customer as well as by Customer End Users (“Permitted Users”). Access to the Services is strictly conditioned on each Permitted User’s agreement to the End User Terms of Service and failure of any Permitted User to agree to the End User Terms of Service shall not entitle the Corporate Partner to a refund or cancellation. Customer will ensure that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are intended to be granted to individual, named persons and may not be shared. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords.
2.3. General Restrictions. Customer will not (and will not permit any third party to): (a) provide access to any Customer End User who is not an employee or an independent contractor who is a natural person, (b) sublicense, resell or otherwise provide access to the Services to a third party other than Permitted Users; (c) use the Services to provide, or incorporate the Services into, any product or service of a third party; (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; or (e) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services).
3. CUSTOMER CONTENT, CUSTOMER END USER DATA
3.3. Customer Obligations.
3.3.1. General. Customer will ensure that Customer’s use of the Service and all Customer Content is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Content. Customer represents and warrants to Company that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content as contemplated in this Agreement (including granting Company the rights in Section 3.1), and that no Customer Content will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights or (ii) any Laws.
3.3.4. Customer Content Guidelines. Customer will not, and shall ensure that Customer End Users shall not, use the Services in any way or with any Customer Content or Customer End User Data that (i) is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate in Company’s discretion; (ii) contains viruses, bots, worms, scripting exploits or other similar materials; or (iii) could otherwise cause damage to Company or any third party.
3.4. Indemnification by Customer. Customer will indemnify, defend and hold harmless Company from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Content, Customer End User Data or acts or omissions of Customer that constitute a breach by Customer of Section 3.3 (Customer Obligations) or (b) any service or product offered by Customer in connection with or related to the Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Company at Customer’s expense. Notwithstanding the foregoing sentence, Company may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and Customer will not settle any claim without Company’s prior written consent, unless the settlement fully and unconditionally releases Company and does not require Company to pay any amount, take any action, or admit any liability.
4.1. Company Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Company or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation, Services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Company Technology”). Except as expressly set forth in this Agreement, no rights in any Company Technology are granted to Customer or Customer End User. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of Services or any deliverables unless otherwise specified in a Statement of Work.
4.2. Feedback. Customer, from time to time, may submit to Company comments, questions, suggestions or other feedback relating to Services (“Feedback”). Customer hereby grants Company a non-exclusive, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Company’s products or services and Company may freely use the Feedback without the need to pay compensation for any use of such Feedback.
5. SUBSCRIPTION TERM, FEES & PAYMENT
5.1. Subscription Term. Each Service that is provided on a subscription basis is identified as such on the Order Form with a specified rate and term (the “Subscription Term”).
5.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be subject to the applicable payment terms set forth in the applicable Order Form. Except as expressly set forth anywhere in this Agreement, all fees are non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Company. Customer must make all payments of fees without any setoffs, withholdings, or deduction of any kind. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5.3. Suspension of Service. In addition to any of Company’s other rights or remedies (including but not limited to any termination rights), Company reserves the right to suspend Customer’s access to the Services if: (i) Customer’s account is thirty (30) days or more overdue; (ii) Company determines that Customer has breached Section 2.3 (General Restrictions) or Section 3.3 (Customer Obligations); or (iii) Company determines that suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Services. Company will have no liability for taking action as permitted above in this section. However, unless this Agreement has been terminated, Company will cooperate with Customer to restore access to the Services once Company determines that Customer has resolved the condition requiring suspension.
6. TERM AND TERMINATION
6.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration
or termination of all Subscription Terms.
6.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days).
6.3. Effect of Termination. Upon any expiration or termination of this Agreement, Company will, within thirty (30) days, remove all public information regarding a Corporate Partner’s use or the Services. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services and delete (or, at Company’s request, return) any and all copies of the Documentation, any Company passwords or access codes and any other Company Confidential Information in its possession. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Any fees accrued but not paid shall become immediately due and payable upon Termination.
6.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.3 (General Restrictions), 2.4 (Trial Subscriptions), 3.2 (Storage by Company), 3.4 (Indemnification by Customer), 4 (Ownership), 5.2 (Fees and Payment), 6 (Term and Termination), 7.2 (Warranty Disclaimer), 10 (Company Indemnification), 11 (Confidential Information), 12 (General Terms).
7. LIMITED WARRANTY
7.2. Warranty Disclaimer. ALL SERVICES ARE PROVIDED “AS IS”. NEITHER COMPANY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Company DOES NOT WARRANT THAT CUSTOMER’S USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES Company WARRANT THAT IT WILL REVIEW THE CUSTOMER CONTENT FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER CONTENT OR CUSTOMER END USER DATA WITHOUT LOSS. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Company. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
7.3. Specific Disclaimers. TO THE EXTENT PERMITTED BY LAW, Company IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM (I) THE TRANSFER OF DATA OVER PUBLIC COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, OR (II) ANY DELAY OR DELIVERY FAILURE ON THE PART OF ANY OTHER SERVICE PROVIDER NOT CONTRACTED BY Company, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CUSTOMER ACKNOWLEDGES THAT Company CANNOT GUARANTEE THE ABSOLUTE PREVENTION OF CYBER-ATTACKS SUCH AS HACKING, SPYWARE, AND VIRUSES. ACCORDINGLY, Company SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED DISCLOSURE, LOSS OR DESTRUCTION OF CUSTOMER DATA ARISING FROM SUCH RISKS AS LONG AS SUCH RISK CANNOT BE ATTRIBUTED TO GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUDON COMPANY’S PART.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, OR THE DOCUMENTATION FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. Liability Cap. COMPANY’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, OR THE DOCUMENTATION, AT ANY TIME WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO SUCH TIME UNDER THE RESPECTIVE ORDER FORM.
8.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.3 (General Restrictions); or (b) under Section 3.3 (Customer Obligations) and Section 3.4 (Indemnification by Customer);.
8.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9. GENERAL TERMS
9.1. Assignment. This Agreement will bind and insure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized will be null and void.
9.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
9.3. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. All disputes relating to or arising out of this Agreement shall be resolved in a state or federal court located in the State of New York, and the parties hereby consent to the jurisdiction of such courts.
9.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs incurred in connection with such action.
9.5. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand or email, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
9.6. Amendments; Waivers. This Agreement may be amended by the Company from time to time by posting of such amendment to the website located at [link]. You will be notified of such amendment by email, public announcement, or other method chosen by the Company in their complete discretion. If Customer does not wish to be bound by an amendment to this Master Services Agreement, Customer must immediately cease all use of the Services and notify Company that Customer has not consented to such amendment. Continued use of the Services shall be conclusive evidence of Customer consent. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement.
9.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
9.8. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party (each, a “Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or data or telecommunications networks or services.
9.9. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf.