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The following terms have the meanings set forth below:
"Agreement" means the Master Services Agreement between the parties and includes any subsequent amendments and addenda which are entered into by the parties.
"Affiliate" means, with respect to either party, any person, firm, corporation, partnership (including, without limitation, any general partnership, limited partnership, or limited liability partnership), limited liability company, or other entity that, at any given time, directly or indirectly Controls, is Controlled by, or is under common Control with such party.
"Business Day" means any day other than any Saturday, Sunday, or U.S. federal holiday.
"Change Order" is defined in Section 2.3(a).
"Confidential Information” means, with respect to each party, certain information not generally known to the public, regardless of whether such information is specifically identified as confidential and whether or not such information is received prior to the Effective Date, including but not limited to, intellectual property, technical data, documentation, works of authorship, specifications, computer software, source and object code, flow charts, databases, inventions, improvements, research, knowhow, show-how, designs, processes, procedures, formulae, drawings, diagrams, photographs or other graphic depictions, plans, specifications, prototypes and models and any other tangible manifestation of the foregoing, whether or not patentable or copyrightable, operation manuals or other instructions, trade secrets of the parties, financial, pricing or marketing information, business plans, records, Customer Materials, Company Materials, Company software, third-party software used or provided by the Company, Customer software, information that the disclosing party specifies as confidential and provides to the receiving party, the terms of the Agreement and the Statement of Work, and any other information that a reasonable business person would deem confidential. Confidential Information shall also include any notes, reports, and other documents based upon or derived from the Confidential Information. Confidential Information excludes information that is:
(1) in the public domain prior to the Effective Date or prior to the receiving party’s receipt of such information from the disclosing party, an affiliate thereof or a third party under confidentiality obligations thereto, whichever is earlier, or which subsequently came into the public domain through no act or omission of the disclosing party or others who were under confidentiality obligations to the disclosing party or an affiliate thereof; (a) rightfully received by either party from a third party, such party being free of confidentiality obligations; (b) already in the receiving party’s possession and lawfully received from sources other than the disclosing party or an affiliate thereof, prior to the Effective Date or prior to the receiving party’s receipt of such information, whichever is earlier; (c) independently developed by the receiving party prior to the Effective Date or prior to the receiving party’s receipt of such information; or (d) approved in writing for release or disclosure without restriction by the disclosing party.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any given person or entity, whether through ownership of voting securities (including, but not limited to, the direct or indirect ownership, at any given time, of fifty percent (50%) or more of the outstanding securities that have voting rights, or partnership or limited liability company interests, in the applicable entity), by contract, or otherwise.
“Company” is defined in the introductory paragraph.
“Company Party” and “Company Parties” are defined in Section 7.1.
“Company Materials” means all Developer Tools, systems, materials, documentation, manuals, guidelines, literary works or works of authorship, business or other processes, methodologies, tools, programs, patents, designs, drawings, charts, graphs, machine readable text and files, trademarks and service marks (whether or not registered), copyrights, database rights, inventions, drawings, performances, computer programs, program tools, software, applications, computer code (in object code and source code form), utilities, know-how, show-how, screen layouts, confidential information, business names, or other items licensed or owned by the Company and used by the Company to provide the Services, including Company software.
“Customer Originals” is defined in Section 2.4(b).
"Customer Third-Party Resources” is defined in Section 5.1(b).
“Customer Translation Memory” is defined in Section 5.5(c).
“Deliverables” means a product, Service, or other item to be delivered to Customer in accordance with a Statement of Work.
“Developer Tools” is defined in Section 5.5(d).
“Effective Date” is defined in the introductory paragraph.
“Force Majeure Event” is defined in Section 9.1.
“Improvements” is defined in Section 5.1(d).
“Notice” is defined in Section 9.8.
“Personnel” is defined in Section 5.1(a).
“Protected Data” is defined in Section 5.1(e).
“Required Consent” is defined in Section 5.1(b).
“Service” or “Services” means any services, resources, or Deliverable to be provided by the Company to Customer in accordance with a Statement of Work referencing the Agreement and entered into by the Company and Customer.
“Service Commencement Date” means the date that Services shall be commenced by the Company as stated on the applicable Statement of Work.
“Service Term” means the period of time during which the Services will be provided as set forth in the Statement of Work.
“Service Warranty Level” is defined in Section 3.1
“Statement of Work” is defined in Section 2.1.
“Term” is defined in Section 8.1.
“Working Day” is defined in Section 4.1(b).
Each Statement of Work shall list one of the following Service warranty levels (each, a “Service Warranty Level”) applicable to the Services provided in the Statement of Work:
EXCEPT AS OTHERWISE STATED IN THIS ARTICLE 3, IN CONNECTION WITH THE SERVICES, THE COMPANY (1) MAKES NO WARRANTIES WHETHER EXPRESS OR IMPLIED; AND (2) DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN THE EVENT THAT THE COMPANY PROVIDES CUSTOMER WITH DELIVERABLES IN CONJUNCTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DELIVERABLES OR SERVICES PROVIDED BY THIRD PARTIES ENGAGED BY THE COMPANY IN CONNECTION WITH THE SERVICES, THE COMPANY ALSO PROVIDES SUCH DELIVERABLES AS IS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. USE OF ANY INFORMATION OBTAINED VIA THE COMPANY’S SERVICES IS AT CUSTOMER’S OWN RISK. THE COMPANY SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THIRD PARTIES.
Customer shall reimburse the Company for all expenses reasonably incurred in connection with providing the Services including, but not limited to:
Notwithstanding anything contained herein to the contrary, the Company may, in its sole and absolute discretion, require, and Customer shall pay, partial or full prepayment of any fees, costs, and charges to be payable to the Company pursuant to any SOW or Change Order. If the Company requires any such prepayment, the Company shall notify Customer of such requirement no later than the time the Company accepts an applicable SOW or Change Order.
Customer shall comply with all federal, state, and local statutes and regulations regarding or related to Customer in connection with the Company’s providing of Services to Customer. In the event of any change in applicable law, regulation, decision, rule, or order that materially increases the costs or other terms of delivery of the Services, the Company and Customer shall negotiate regarding the rates to be charged to Customer to reflect such increase in cost, and in the event that the parties are unable to reach agreement with respect to new rates within thirty (30) days after the Company’s delivery of written notice requesting renegotiation, then (1) the Company may pass any such increased costs through to Customer; and (2) Customer may terminate the affected Statement of Work, without termination of its liability hereunder, by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase; provided, however, that no such termination by Customer will relieve Customer of any liability for charges and costs incurred for Services performed prior to the date of termination.
If Customer reasonably disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice in accordance with the terms and conditions of the agreement or the Statement of Work and submit a written claim to the Company for the disputed amount. All claims must be submitted to the Company within seven (7) days from the invoice date for the Services underlying the disputed amount. Customer waives the right to dispute any charges not disputed within the time frame set forth in this Section 4.6. In the event that the parties do not settle the dispute within thirty (30) days of the written claim submitted to the Company by Customer, either party may seek mediation of such dispute, if acceptable to both parties, or may proceed to litigation, subject to the provisions of Section 9.7.
Customer is responsible for payment of all property, sales, use, gross receipts, excise, access, bypass, franchise, and other local, state and federal taxes, however designated, imposed on or based upon the provision of the Services. The Company shall bill to Customer, and Customer shall pay to the Company, all sales and use taxes applicable to the Services provided hereunder. The Company shall remit such sales and use taxes to applicable taxing authorities and make all tax filings required thereby. All other taxes shall be borne by the party incurring same and not included in any allocation of costs hereunder.
Customer shall pay all amounts due under the agreement in full without any set-off, counterclaim, deduction, or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting its other rights or remedies, set off any amount owed to it by Customer against any amount payable by the Company to Customer.
Except as expressly set forth herein, the Company retains all right, title, and interest in the Company Materials. Customer is hereby granted a limited license to use portions of the Company Materials as described in Sections 5.3 through 5.6.
Upon Customer’s complete satisfaction of all its obligations under the agreement, as between the Company and Customer, Customer will own all right, title and interest in and to the Deliverables.
In fulfilling their respective obligations under the agreement, neither party shall modify, alter, or obscure the other party’s trademarks or use the other party’s trademarks in a manner that disparages the other party or its products or services, or portrays the other party or its products or services in a false, competitively adverse, or poor light. Each party shall, and shall cause each of its Affiliates to, comply with the other party’s instructions as to the form of use of the other party’s trademarks and will avoid any action that diminishes the value of such trademarks. Either party’s and any of its Affiliates’ unauthorized use of the other’s trademarks is strictly prohibited.
Each party shall execute, and cause its employees, agents, or subcontractors to execute, any documents or take any other actions as may be reasonably necessary or as requested by the other party to perfect each party’s respective ownership rights as set forth in Sections 5.3 through 5.6.
If either party is requested to disclose all or any part of any Confidential Information under a discovery request, a subpoena, or similar inquiry issued by a court of competent jurisdiction, or by a judicial, administrative, regulatory, or governmental agency or legislative body or committee, the party subject to such request shall, to the extent practicable and subject to applicable laws, give prompt written notice of such request to the other party and shall give such other party the opportunity to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure or otherwise intervene, prevent, delay, or otherwise affect the response to such request, and the party subject to such request to disclose shall reasonably cooperate with the other party in such efforts. The party seeking such confidentiality agreement, protective order, or modification of disclosure shall reimburse the other party for reasonable legal fees and expenses incurred in its effort to comply with this provision.
It is understood and agreed that in the event of a breach of this Article 6, damages may not be an adequate remedy and the non-breaching party shall be entitled to seek injunctive relief to restrain any such breach, threatened or actual, without posting of bond or other security or proof of irreparable harm.
Neither party shall have the right to use the other party’s or its Affiliates’ trademarks, service marks, or trade names or to otherwise refer to the other party in any marketing, promotional, or advertising materials or activities. Either party may issue a publication or press release relating to the creation or operation of a business relationship between the Company and Customer, provided that such press release or publication is approved in advance by both parties, which approval shall not be unreasonably withheld or delayed.
Notwithstanding anything contained in the agreement to the contrary, the Company reserves the right to provide any customer or potential customer bound by a nondisclosure agreement access to a list of the Company’s customers and a general description of Service purchased by such customers. Customer hereby consents to such disclosure with respect to Customer, including the listing of Customer’s name and Services purchased by Customer and excluding financial terms relating to the purchase.
NOTWITHSTANDING ANY OTHER PROVISION HEREOF, THE CUMULATIVE AND AGGREGATE LIABILITY OF THE COMPANY PARTIES AND THE CUSTOMER PARTIES FOR ALL CLAIMS AND DAMAGES ARISING UNDER OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE LESSER OF (1) THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE AGREEMENT WITH RESPECT TO THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE THEN MOST-RECENT ACTS OR EVENTS GIVING RISE TO ANY SUCH CLAIMS OR (2) $25,000.
Each party shall indemnify and hold harmless the other party and its Affiliates, and any employees, officers, directors, managers, shareholders, members, agents, or representatives of any of the foregoing, from and against any third-party claim or demand, and shall pay all liability, damages, costs, and expenses (including reasonable legal fees and expenses), and fines, fees, and penalties assessed by any governmental or regulatory authority, that are associated with any third-party claim or demand, arising out of or related to:
The term of the agreement begins on the Effective Date and continues until there are no Statements of Work in force and effect hereunder that have not expired or been terminated in accordance with the agreement or the applicable Statement of Work (the entire period of time that the agreement is in force and effect, the “Term”).
In no event shall the Company be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss, or malfunctions of utilities, communications or computer (software and hardware) services (each, a “Force Majeure Event”); it being understood that the Company shall use reasonable efforts to resume performance as soon as practicable under the circumstances.
A party may not waive any provision of the agreement, except by a written agreement signed by the party against whom the waiver is sought to be enforced. No waiver by either party of the performance of any provision, condition, or requirement herein shall be deemed to be a waiver of any other provision, condition, or requirement contained herein; nor shall it be deemed to be a waiver of future performance of the same provision, condition, or requirement; nor shall any delay or omission of a party in exercising any right hereunder impair the exercise of any such right or any like right accruing to it thereafter.
The parties may not amend the agreement, except by a written agreement signed by the parties.
If any provision of the agreement is determined to be invalid, illegal, or unenforceable, such determination will not affect the validity or enforceability of the remaining provisions hereof.
The agreement and all applicable Statements of Work and Change Orders constitute and contain the full and final agreement of the parties regarding the matters contained herein, and unless otherwise specified herein, the agreement supersedes and replaces any and all prior agreements or understandings between the parties regarding the matters contained herein.
The laws of the State of Georgia govern all matters arising out of or relating to the agreement and all the transactions it contemplates, including, but not limited to, its interpretation, construction, performance, and enforcement. Customer and Company agree that any action to enforce the agreement, or respecting its terms, may be brought in any state or federal court located in Atlanta, Georgia, USA, which shall be the sole and exclusive venue for any such disputes or actions.
Last updated 2018, June 01