MASTER SERVICES AND SOFTWARE LICENSE AGREEMENT

1. Purpose and Structure of Agreement

a. Purpose of Agreement

i. Generally

Customer desires to enter into an agreement for the provision by Supplier of the Services to the Customer, specifically:

 

• Providing business methods, procedures, and best-practices to the Customer;
• Providing software development and software deployment services to the Customer; and
• Providing coaching, consultation, and subject matter expertise to the Customer;
• Providing training, certification, or compliance services to the Customer; as detailed in one or more Statement of Work writings.

 

ii. Capabilities

Supplier has successfully developed, implemented, and provided the Services to other customers of Supplier on a scale similar to or larger than contemplated by the Agreement; has the trained personnel, subcontractors, and the business processes and systems necessary to provide the Services to Customer; and desires to provide such Services to Customer.

 

iii. Objectives

The purposes and objectives of Supplier and Customer for entering into the Agreement are, generally, the development of business methods and automations for the Customer’s business. The sale of goods is not contemplated under this Agreement.

 

iv. Construction of this Section

The provisions of this Section 1(a) are intended to be a statement of the purposes and objectives of the Agreement and are not intended to alter the plain meaning of the terms and conditions of the Agreement or to require either Party to undertake performance obligations not required by the Agreement. To the extent that the terms and conditions of the Agreement are unclear or ambiguous, such terms and conditions are to be interpreted and construed consistent with the purposes set forth in this Section 1(a).

b. Structure of Agreement

i. Components of the Agreement

The Agreement consists of:

 

• The provisions set forth in this Master Agreement and the Exhibits referenced herein;
• Statement of Work writings attached hereto, or contemplated for future attachment, and the Schedules referenced therein; and
• Any additional Statements of Work executed by the Parties pursuant to this Master Agreement, including the Schedules referenced in each such Statement of Work.

 

ii. Definitions

All capitalized terms used in the Agreement shall have the meanings set forth Exhibit 1 (Definitions). Other capitalized terms used in the Agreement are defined where they are used and have the meanings so indicated.

 

iii. Statements of Work

The Services will be described in and be the subject of (i) one or more Statements of Work executed by the Parties pursuant to this Master Agreement, and (ii) this Master Agreement. Each Statement of Work shall be substantially in the form of, and shall include the set of Schedules described in the Statement of Work, with such additions, deletions and modifications as the Parties may agree.

 

iv. Deviations from Master Agreement, Priority

In the event of a conflict:

 

• The terms of the Statements of Work shall be governed by the terms of this Master Agreement, unless an individual Statement of Work expressly and specifically notes the deviations from the terms of this Master Agreement for the purposes of such Statement of Work on the “Deviations From Terms of Master Agreement” Schedule to such Statement of Work.
• The terms of each Statement of Work shall govern the terms of the Schedules referenced therein.
• The terms of this Master Agreement shall govern the terms of the Exhibits referenced herein.
• A Change Order shall govern this Master Agreement, any Statement of Work(s), Schedule(s) and/or Exhibit(s) to which such Change Order applies with respect to the scope and duration of such Change Order.

 

2. Term of Agreement

a. Term of Agreement

The Term of the Agreement will begin as of the Effective Date and will terminate at the completion of all Statement of Work writings and after the passage of 6 months with no further Statement of Work contemplated or offered, OR upon either party’s written notice of termination according to Section 12 of this Master Agreement.

 

3. The Services

a. Obligation to Provide Services

i. Obligation to Provide Services

Starting on the Commencement Date of each Statement of Work and continuing during each Statement of Work Term, Supplier shall provide the Services described in each such Statement of Work to, and perform the Services for, Customer in accordance with the applicable Statement of Work and the Agreement.

 

ii. Responsibilities

Supplier and Customer will each perform their respective duties, obligations, and responsibilities (“Responsibilities”) set forth in the responsibility matrix included in each Statement of Work as part of the “Services Description” Schedule (each, a “Responsibility Matrix”). Customer’s failure to perform a Responsibility will excuse Supplier’s obligation to perform its corresponding obligations under the Agreement only if Supplier provides written notice to Customer of such failure and demonstrates that: (i) Customer’s failure was the direct cause of Supplier’s inability to perform; and (ii) Supplier could not have continued performance by using reasonable methods, activities, and procedures. In the event of (i) and (ii), Supplier will be excused from performance of those Services impacted by Customer’s failure to perform only to the extent that, and for so long as, Customer’s failure to perform its Responsibilities prevents Supplier’s performance, and provided that Supplier takes reasonable steps to mitigate the effects of Customer’s failure to perform.

b. Compliance with Laws and Policies

i. Generally

Supplier shall perform the Services in compliance with:

 

• All Laws applicable to Supplier in its performance and delivery of the Services;
• All Laws applicable to the portion of the operations of the Customer performed by Supplier as part of the Services, just as if the Customer performed the Services, as interpreted, augmented and/or modified by the Customer Compliance Directives (collectively, the “Customer Compliance Requirements”); and
• All policies and procedures of general application of the Customer as set forth in Exhibit 9 (Policies), as published by Customer from time to time and delivered to Supplier.

 

ii. Customer Compliance Directives

Customer may instruct Supplier in writing as to compliance with any of the Customer Compliance Requirements and changes in Supplier’s policies and procedures relating to such compliance (a “Customer Compliance Directive”). Supplier is authorized to act and rely on, and shall promptly implement, each Customer Compliance Directive in the performance and delivery of the Services, subject to the provisions of Section 3(b)(iii) below.

c. Services Performed by Customer or Third Parties

i. Non-Exclusive Relationship

Supplier is engaged by Customer on a non-exclusive basis to provide the Services under the Agreement. Customer retains the right to perform itself, or retain Third Parties to perform, any service, function, responsibility, activity, or task that is within the scope of the Services.

d. New Services

i. Customer Requests for New Services

During the Term, Customer may request that Supplier provide New Services. New Services may be activities that are performed on a continuous basis for the remainder of the Term or activities that are performed on a project basis. If after review of the Statements of Work either the service could qualify as an existing Service, or an Additional Resource Charge or other charging mechanism exists for such service, then the Parties will treat such service as an existing Service and Supplier will perform such service in accordance with its existing obligation to perform the Services and for the Charges associated with that Service. If the service does not qualify as an existing Service and an Additional Resource Charge or other charging mechanism does not exist for such service, then that service will be deemed a New Service.

e. Facilities

i. Facility Designation

Supplier shall provide the Services at the Facilities specified in the Statement of Work. Any requirement for the use of a Customer Facility shall be subject to such provisions as may be set forth in the Statement of Work for such Services.

 

4. Charges; New Services; Invoices; and Payments

a. Taxes

i. Responsibility

Customer shall be responsible for Taxes imposed on, based on, or measured by any consideration for any provision of services or transfer of property by Supplier to Customer, pursuant to the Agreement.

 

ii. Withholding Taxes

Supplier shall be responsible for any Withholding Tax liability asserted by any tax authority against Customer as a result of payments made by Customer to Supplier under the terms of the Agreement. Customer shall provide notice to Supplier of any assertion of Withholding Tax liability by any tax authority and shall make available to Supplier on a timely basis valid evidence of any Withholding Tax paid by Customer to such tax authority.

b. Invoices and Invoice Payment

i. Invoices

Supplier shall render, by means of an electronic file, an invoice or invoices in a form specified by Customer and otherwise in reasonable detail for the Charges incurred in each month. Supplier shall identify all Taxes and Pass Through Charges for each such invoice. Supplier will use commercially reasonable efforts to identify and obtain invoices for Pass Through Charges, if any, that a Third Party Provider does not provide to the Supplier in a timely manner.

 

ii. Payment

All amounts due to Supplier and set forth on a correct invoice delivered pursuant to paragraph (a) above and the applicable Statement of Work shall be due and payable within 15 calendar days (NET15) of Customer’s receipt of such invoice.

 

iii. Disputed Charges/Credits

In the event that Customer disputes the accuracy or applicability of a charge or credit or other financial arrangement described in the Agreement, Customer shall notify Supplier of such Dispute as soon as practicable after the discrepancy has been discovered. The Parties will investigate and resolve the Dispute in accordance with the expedited Dispute Resolution Procedures applicable to Financial Disputes. Unpaid and uncredited monies that are the subject of a good faith Dispute will not be considered a basis for monetary default under, or a breach of, the Agreement.

 

5. Covenants

a. Services

Supplier shall render Services using personnel that have the necessary knowledge, training, skills, experience, qualifications, and resources to provide and perform the Services in accordance with the Agreement, and shall render Services in a prompt, professional, diligent, and workmanlike manner, consistent with industry standards applicable to the performance of such Services.

b. Continuous Improvement

Supplier shall diligently and continuously improve the performance and delivery of the Services by Supplier and the elements of the policies, processes, procedures, and systems that are used by Supplier to perform and deliver the Services, subject to the approval of Customer in accordance with the Change Control Procedures.

c. Export; Regulatory Approvals

i. Export Laws

The Parties acknowledge that any products, software, and technical information (including services and training) provided by the Customer to Supplier and any Supplier Representatives under the Agreement may be subject to U.S. and other countries’ export Laws and any use or transfer of such products, software, and technical information must be authorized under those regulations. Each Party agrees that it will not use, distribute, transfer, or transmit any products, software, or technical information (even if incorporated into other products) in violation of U.S. and other countries’ export Laws.

d. Viruses

Supplier will take commercially reasonable measures to ensure that no virus or similar items are coded or introduced into the Services, the Customer Systems interfacing with the Services, the Supplier Information Systems and operating environments and processes used by Supplier to provide the Services, including the information, data and other materials delivered by or on behalf of Supplier to the Customer, the customers of the Customer and/or the Third Party Providers. Supplier will continue to review, analyze, and implement improvements to and upgrades of its virus prevention and correction programs and processes that are commercially reasonable and consistent with the then current information technology industry’s standards.

 

If a virus is found to have been introduced, Supplier will promptly notify Customer and Supplier shall use commercially reasonable efforts and diligently work to eliminate the effects of the virus at Supplier’s expense. Supplier shall not modify or otherwise take corrective action with respect to the Customer Systems except at Customer’s request.

 

Supplier shall take immediate action to eliminate and remediate the Virus’ proliferation and its effects on the Services, the Customer Systems, the Supplier Information Systems and operating environments and processes used by Supplier to perform and deliver the Services, including Supplier Software and the Customer Software. At Customer’s request, Supplier will report to Customer the nature and status of all virus elimination and remediation efforts.

e. Technology; Best Practices

Supplier will:

 

• (i) provide the Services using technology at a level current with the technology that Supplier implements for its general internal operations and at least comparable to the level of technology generally adopted in Customer’s industry for provision of similar services;
• (ii) keep knowledgeable about changes and advancements in the technology necessary to provide the Services; and
• (iii) in performing the Services, utilize processes, procedures and practices that are consistent with the best practices it utilizes in performing services similar to the Services for its other customers, which practices will, at a minimum, be consistent with the best practices of similarly situated providers offering similar services within Customer’s industry.

 

6. Representations and Warranties

a. Representations and Warranties of Customer

Customer represents and warrants to Supplier:

 

• i. Authorized Agreement. This Master Agreement has been, and each Statement of Work will be, duly authorized, executed and delivered by Customer and constitutes or will constitute, as applicable, a valid and binding agreement of Customer, enforceable against Customer in accordance with its terms.
• ii. No Default. Neither the execution and delivery of this Master Agreement or any Statement of Work by Customer, nor the consummation of the transactions contemplated hereby or thereby, shall result in the breach of any term or provision of, or constitute a default under, any charter provision or bylaw, agreement (subject to any applicable consent), order, or Law to which Customer is a Party or which is otherwise applicable to Customer.

b. Representations and Warranties of Supplier

Supplier represents and warrants to Customer:

 

• i. Authorized Agreement. This Master Agreement has been and each Statement of Work will be duly authorized, executed and delivered by Supplier and constitutes or will constitute, as applicable, a valid and binding agreement of Supplier, enforceable against Supplier in accordance with its terms.
• ii. No Default. Neither the execution and delivery of this Master Agreement or any Statement of Work by Supplier, nor the consummation of the transactions contemplated hereby or thereby, shall result in the breach of any term or provision of, or constitute a default under, any charter provision or bylaw, agreement (subject to any applicable consent), order or Law to which Supplier is a Party or that is otherwise applicable to Supplier.
• iii. Consents. Except as otherwise provided in the Agreement, no authorizations or other consents, approvals or notices of or to any Person are required in connection with (i) the execution, delivery and performance by Supplier of the Agreement, (ii) the development, implementation or operation of the Software, equipment and systems necessary for Supplier to perform the Services in accordance with the applicable provisions of the Agreement and in compliance with all applicable Laws and Customer Compliance Requirements and Supplier regulatory requirements, or (iii) the validity and enforceability of the Agreement.
• iv. No Infringement. Supplier represents and warrants that (i) the Supplier Assets, Supplier Software, Work Product, and all other items, information, systems, deliverables or software provided or used by Supplier (or any Supplier Representatives), and the Customer’s use thereof, and (ii) the Services, and the Customer’s receipt thereof, shall not infringe any U.S. or foreign patent or copyright, or misappropriate any Trade Secret or other proprietary right of any Third Party or otherwise conflict with the rights of any Third Party, and Supplier has obtained, and will obtain and maintain, all rights and licenses required from Third Parties to (x) operate, use, license and provide the Supplier Assets, Supplier Software, Work Product, and all other items, information, systems, deliverables or software provided or used by Supplier (or any Supplier Representatives), (y) provide the Services, and (z) otherwise perform its obligations under the Agreement. Supplier will acquire such further rights and licenses to the extent necessary to provide any New Services. Supplier shall maintain in full force and effect the rights and licenses described in this paragraph for the Term and for the duration of the provision of Termination Assistance Services.
• v. Data Processing and Transfers. With respect to any Processing of Personally Identifiable Information, Supplier (i) has full legal authority in each jurisdiction where Personally Identifiable Information will be Processed; (ii) will Process such Personally Identifiable Information only on behalf of the Customer as necessary to carry out its obligations under the Agreement and only in accordance with the instructions of Customer; (iii) will not Process such Personally Identifiable Information for purposes incompatible with those for which it was collected or subsequently authorized by the data subject; and (iv) has complied, and will comply, with all applicable Privacy Laws.
• vi. Data Return or Destruction. Promptly upon the expiration or earlier termination of any Statement of Work, or such earlier time as Customer requests, Supplier shall, and shall cause Supplier Representatives to, return to Customer, or at Customer’s request, destroy or render unreadable or undecipherable if return is not reasonably feasible or desirable to Customer (which decision shall be based on Customer’s written statement), each and every original and copy in every media of all Personally Identifiable Information in the possession, custody or control of Supplier and Supplier Representatives. Promptly following any return or alternate action taken to comply with this subsection, Supplier shall provide to Customer a completed officer’s certificate certifying that such return or alternate action occurred.
• vii. Open Source. Supplier may, at Supplier’s sole discretion, incorporate open source, freeware, DRM-free, and similar Software (whether in source code or object code format) into the Work Product, advice offered, methods proposed, delivered Customer Software, or any other Software used in connection with providing the Services.
  • Supplier has not and will not incorporate any Software (whether in source code or object code format) into the Work Product, Customer Software, Supplier Software or any other Software used in connection with providing the Services (collectively, “Affected Products”), and none of the Affected Products or any portion thereof is or will be subject to or distributed under any license, other agreement or understanding, that (i) would require the distribution of source code with the Affected Products or require source code to be made available when such is distributed to any Third Party; (ii) would impact, restrict or impair in any way the Customer’s ability to license the Affected Products (to the extent owned or licensable by Customer) pursuant to terms of the Customer’s choosing; or (iii) would impact or limit the Customer’s ability to enforce any patent or other Intellectual Property Rights of the Customer against any Third Party in any manner.
• viii. Pass-Through Warranties. In the event Supplier purchases or procures any Third Party products or services for the Customer in connection with the provision of the Services, in addition to the foregoing representations, warranties and covenants, Supplier shall pass through or assign to the Customer the rights Supplier obtains from the manufacturers and/or vendors of such products and services (including warranty and indemnification rights), all to the extent that such rights are assignable.
  • To the extent that such rights are not assignable by Supplier, Supplier agrees that the Customer may assert or enforce any right Supplier may have to enforce such representations, warranties, and covenants, or if such can only be enforced by Supplier under its own name, upon written request by the Customer, Supplier shall take all reasonable action requested by the Customer to enforce such representations, warranties and covenants.

c. Disclaimer

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY STATEMENT OF WORK, THE PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE, SOFTWARE, HARDWARE, DELIVERABLES, WORK PRODUCT OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT.

 

7. Relationship Protocols

a. Personnel Resources

i. Independent Contractor

Supplier, Supplier’s employees, and employees of the Supplier Representatives are not and shall not be deemed, employees of Customer. Supplier shall be solely responsible for the payment of compensation (including provision for employment taxes, federal, state, and local income taxes, workers compensation and any similar taxes) and benefits associated with the employment of Supplier’s employees and, as between the Parties, the employees of the Supplier Representatives. Supplier shall also be responsible for obtaining and maintaining all requisite work permits, visas, and any other documentation. Supplier represents that Supplier, its employees and the Supplier Representatives who will perform any of the Services, or any part thereof or related thereto, are authorized to perform Services under the Agreement.

b. Use of Subcontractors

i. Supplier Use of Subcontractors

Supplier is free to use its own independent contractors and sub-contractors in the ordinary course of offering services, and Supplier will manage the delegation and assignment of tasks to its contractors and sub-contractor along side Contractor’s own employees. A list of Suppliers’ contractors and sub-contractors is available by request.

 

ii. Supplier’s Agreements with Subcontractors

Prior to subcontracting any of its obligations under the Agreement, Supplier shall obtain contractual assurances from each subcontractor sufficient to enable Supplier to comply with the provisions of the Agreement. Each subcontract hereunder shall contain provisions specifying that Supplier subcontractor specifically agrees that Supplier shall have the right to assign such subcontract to Customer. All such contractual assurances and agreements must include a prohibition on further subcontracting or an obligation to obtain similar contractual assurances from any sub-subcontractor.

 

iii. Responsibility of Supplier

Supplier shall remain primarily liable and obligated to Customer for the timely and proper performance of all of its obligations hereunder, even if such obligations are delegated to a subcontractor that has been approved by Customer, and for the proper and timely performance and actions of any person or entity to which it delegates or subcontracts any such obligation. Supplier will be responsible for the payment of all Supplier subcontractors.

 

8. Document Retention

Supplier shall retain all records, documents and data required to be maintained by it under the Agreement for such period as may be specified in any Statement of Work or as required by any Law applicable to the Customer or pursuant to the document retention policies of the Customer provided to Supplier. All such records, documents and data shall be maintained in such form (for example, in paper or electronic form) as Customer directs.

 

9. Technology; Intellectual Property Rights

a. Copyright Protection; Use Restrictions; Subscriber License Grant

• i. Customer agrees that the Service and all parts thereof, and its specifications, including without limitation the editorial coding and metadata contained therein, are the property of Supplier or Supplier’s affiliates.
• ii. The works included in the content of the Service are protected by applicable copyright laws. The works of authorship provided to Customer by Supplier are original works, and not works-for-hire, unless otherwise expressly stated in a Statement of Work.
• iii. Other than as expressly set forth in this Agreement, no license or other rights in the pre-existing intellectual property rights to the Service deliverable are granted to Customer, and all such rights are hereby expressly reserved by Supplier.

b. Use of Customer Data

• i. Customer hereby grants to Supplier a non-exclusive, royalty-free, and non-transferable license to use, copy, store, modify, and display the Customer Data as necessary to provide the Service in accordance with this Agreement. Customer Data submitted by Customer to the Service remains the sole property of Customer and Customer reserves all right, title, and interest in the Customer Data.

c. Supplier Software

The initial list of Supplier Software that is necessary for Supplier to use to perform the Services shall be identified in a “Supplier Software” Schedule to each Statement of Work. Subject to the terms of the Agreement, the Supplier hereby grants to the Customer a nonexclusive, worldwide, perpetual, irrevocable, paid-up license to exploit the Supplier Software and other materials provided by or through Supplier pursuant to the Agreement during the Term and thereafter.

d. Proprietary Rights

• i. The trademarks, trade names and logos under which the Customer markets its goods or services are the sole and exclusive property of the Customer. The trademarks, trade names and logos under which the Supplier markets its goods or services are the sole and exclusive property of the Supplier.

 

10. Confidentiality and Data

Parties have executed a separately-written non-disclosure agreement, incorporated herein by reference, under the document titled: DOVITO_NDA.

 

11. Termination

a. Termination by Customer

Customer may terminate the Agreement or any Statement of Work in whole or, in the case of termination pursuant to Sections 12(a)(i), (ii), (iii), (vii), (viii), (x) and (xi), in part, with respect to the affected Services, for any of the following reasons:

 

• i. Material Breach. Upon written notice to Supplier, in the event of either a material breach of the Agreement or any Statement of Work by Supplier that remains uncured for ten (10) days after receipt of written notice thereof by Customer to Supplier; or
• ii. Persistent Breach. Upon written notice to Supplier if there exists a series of material breaches that are cured within the permissible periods, or non-material persistent breaches, of this Master Agreement and/or any Statement of Work by Supplier that in the aggregate constitute a material breach or have a material adverse impact on the Services; or
• iii. Convenience. For convenience with respect to any part of the Services upon one hundred twenty (120) days prior notice of the effective date of such termination, by Customer to Supplier; or
• iv. Force Majeure Failure. Under the circumstances set forth in Section 17(c).

 

In the event of a partial termination of any Statement of Work pursuant to Sections 12(a)(i), (ii), (iii), (vii), (viii), (x) and (xi), Customer shall provide Supplier with written notice of its intent to terminate, which notice shall specify a termination date no less than ninety (90) days after the date of the notice, and the Charges for the portion of the Services terminated shall be removed from the applicable Charges Schedule and any other terms shall be equitably adjusted to reflect the termination of such portion of the Services.

b. Termination by Supplier

Supplier may terminate the Agreement for cause if Customer does not pay material undisputed amounts within 90 days of the date on which they are due, provided that Supplier provides Customer with written notice of such past due amounts within 10 days of the date on which such amounts were due and an additional written notice within 20 days of the date on which such amounts were due.

 

12. Liability

Supplier’s liability to Customer is limited to the dollar amount actually tendered in advance of, in anticipation of, or in payment on any invoice of Statement of Work. Liability for direct damages, special damages, consequential damages, loss of business good-will, cost-to-cover, and diminution of the value of Customer’s intellectual property are EXPRESSLY DISCLAIMED AND WAIVED BY CUSTOMER.

 

13. Indemnities

a. Customer Infringement Indemnity

Customer, at its expense, will defend, indemnify, and hold Supplier harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Supplier which relate to a claim, action, lawsuit, or proceeding made or brought against Supplier by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark by way of Supplier’s use of any Customer Data, Customer Marks, or other information or materials provided by Customer in connection with this Agreement.

b. Supplier Infringement Indemnity

Supplier, at its expense, will defend, indemnify, and hold Customer harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary) judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Customer which relate to a claim, action, lawsuit, or proceeding made or brought against Customer by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark by way of Customer’s use of the Services or any deliverables of the Supplier in connection with this Agreement.