MSI Software LLC.
Master Terms And Conditions
Agreement Number: MSI/Customer –
This MASTER AGREEMENT (“Agreement”) is made as of the date of last signature below (the “Effective Date”) by and between ______________________ (“Customer”), with an address at _______________________________________, U.S.A., and MSI Software LLC., a NJ corporation (“MSI”), with an address at 1140 Parsippany Blvd. Parsippany, NJ 07054 (each a “Party” and collectively, the “Parties” to this Agreement).
- Agreement Structure
- This Agreement governs the delivery of certain products (which may be hardware (“Hardware”) and/or software (“Software”), which are collectively referred to as “Products”) and the provision of certain services to the Customer by MSI (collectively referred to as “Services”)
- MSI provides additional terms for Products and Services in Quotes/Statements of Work (hereinafter referred to as SOW in this Agreement) which, if applicable, shall be incorporated and made a part of this Agreement. All transactions have one or more associated SOW’s.
- If there is a conflict among the terms in the various documents, those of an SOW prevail over those of this Agreement.
- SOW’s become a part of this Agreement upon signature by both Parties to this Agreement.
- Each SOW shall, to the extent applicable, contain: (i) a description of the Products to be delivered and any Services to be performed by MSI; (ii) the tasks to be completed by Customer and any third parties; (iii) a description of the Products and Services to be delivered by MSI (“Deliverables”); (iv) the schedule for delivery of each Product and Service and Deliverables; (v) the Charges to be paid to MSI for such Products and Services, and (vi) such additional information as the parties may wish to include.
- SOWs shall be deemed accepted when executed by the Parties.
- A Customer’s Affiliate may receive services from MSI as described in an applicable SOW and MSI agrees to provide such services. Customer’s Affiliate and MSI agree that for the purposes of the applicable SOW: (a) Customer’s Affiliate and MSI are bound by the terms and conditions of this Agreement, (b) Customer’s Affiliate shall be deemed “Customer” under this Agreement, (c) the SOW and the Agreement shall be deemed a complete and separate agreement, independent of any other SOWs entered into between MSI and Customer or any of Customer’s Affiliates, and (d) Customer and any of Customer’s Affiliates shall be severally liable for any SOWs entered into by each such party. For purposes of this Agreement, the term “Affiliate” means any entity controlling, controlled by or under common control with a Party.
- Expenses, Invoicing And Payment
- As full compensation for the Product and Services, Customer shall pay MSI in accordance with the terms of this Agreement and the respective SOWs. The fees (“Fees”) for the Products and Services shall be specified in the respective SOWs. Fees may be calculated (a) on a fixed price basis, or (b) on a time and materials basis (“T&M”).
- All Fees exclude charges for sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs or other taxes, duties or other fees now or hereafter claimed or imposed by any governmental authority upon the sale of the Products unless otherwise agreed in an SOW. If Customer is required to pay (i) sales, use, property, value-added, withholding or other taxes, (ii) any customs or other duties, or (iii) any import, warehouse or other fees, associated with the importation or delivery based on Products and Services provided in this Agreement or on Customer’s use of Services, then such taxes, duties or fees shall be billed to and paid by Customer. If Customer is permitted to declare any such taxes, Customer shall declare and pay such taxes and fees, notify MSI which taxes and fees it is paying, and MSI shall not be required to invoice Customer for those taxes and fees. This Section shall not apply to taxes based on MSI’s net income or payroll taxes, which MSI is responsible for paying.
- Unless otherwise noted, prices shown do not include shipping and insurance charges, delivery, site preparation, installation, electrical or environmental requirements, testing, maintenance or other Services.
- When specified in an SOW or other approved contract document, Customer will reimburse MSI for its actual out-of-pocket travel-and living related expenses reasonably incurred in connection with its performance of the Services; provided, however, that (i) MSI obtains the written approval of Customer prior to incurring any such expenses, (ii) all such expenses are consistent with Customer’s then-current travel and expense policies, as applicable, and (iii) all such expenses are supported by adequate documentation submitted by MSI together with the relevant invoice.
- Services and expenses will be invoiced at the agreed-upon rate set forth in an approved SOW.
- Any taxes, duties or such other charges will be invoiced to the Customer. MSI may be required to collect and remit taxes from Customer unless Customer provides MSI with a valid tax exemption certificate. If it is required to pay any such amount, Customer will promptly reimburse MSI for any such amount. In no event will either Party be responsible for any taxes levied against the other Party’s net income.
- Each invoice submitted to Customer must reference a valid SOW and provide supporting detail for the Services and expenses invoiced.
- MSI will submit to Customer monthly invoices for Products and/or Services delivered or provided to Customer by MSI. All payments are due NET 30 days from the date of receipt of the invoice unless other terms are set forth in the SOW. In the event payments are not made within sixty (60) days of Customer’s receipt of the invoice, MSI reserves the right to charge interest on any unpaid balance at the rate of one and one-half percent (1.5%) per month, or the highest rate allowed by law, whichever is lower.
- RETURNS WILL NOT BE ACCEPTED WITHOUT A RETURN AUTHORIZATION FROM MSI.
- Title & Risk of Loss
- MSI hereby retains title to and a security interest in the Hardware, and/or a security interest in the Software, delivered to Customer, until Customer makes payment in full of the purchase price hereunder. Until payment in full has been made, Customer shall not move Products from the address set forth in the SOW without the written consent of MSI.
- Title and ownership rights to all Software, machine code and any copies thereof shall be controlled by the license(s) provided by the manufacturer, licensor, or distributor thereof.
- All risk of loss, destruction, or damage to all Hardware and/or Software, by reason of theft, fire, water, or any other cause, shall pass to Customer upon delivery of the Hardware and/or Software to Customer, and the occurrence of any such casualty shall not relieve Customer of its obligation to pay the balance of the purchase price, if any.
- Intellectual Property Ownership
- Each Party shall retain all rights in any software, ideas, concepts, know-how, development tools, techniques or any other proprietary material or information that the Party owns or develops outside the scope of this Agreement (“Intellectual Property”).
- MSI’s Intellectual Property and trade Secrets (IP) and all improvements, developments, extensions or modifications to MSI’s IP that are conceived, developed or reduced to practice in connection with this Agreement or any Statement of Work, for incorporation into a Service Product or Work Product (including all parts thereof) and any intermediate Service, product or Work Product created in providing the Services and developing the final Service or Work Product (collectively, the “MSI Content”) are and will remain at all times the sole and exclusive property of MSI. MSI Content that is contained in or required for the use of any Service or Work Product and to the extent MSI does not have an explicit license for the MSI Content, Service or Work Product provided under this Agreement, MSI hereby grants to Customer a worldwide, paid-up, royalty-free, irrevocable and perpetual license, which is sublicensable or assignable to Customer affiliates and assignees, to use, copy, modify and prepare derivative works of that MSI Content in connection with the use of such MSI Content, Service or Work Product solely in connection with the Products, Services and/or Deliverables MSI renders to Customer and solely as specified in an MSI SOW. The foregoing license includes the right to allow third party product or service providers of Customers and its affiliates to install MSI Content on their systems and at their locations and to use, copy, modify and prepare derivative works thereof solely in connection with the Service or Work Product MSI has rendered to Customer and/or products they provide for the exclusive use of Customer and its affiliates.
- Third Party Supplier’s Intellectual Property and trade Secrets (IP) – Third Party Content
- Third party supplier’s IP, products and services and any improvements or extensions thereto, which are conceived, developed or reduced to practice in connection with this Agreement or any Statement of Work, are owned exclusively by the third party supplier and are provided in accordance with the third party supplier’s license and/or agreement, which is provided in accordance with a Statement of Work and is accepted by Customer.
- For MSI’s third party products, services or work product that are provided under a “shrink-wrap”, “click-through”, “web- wrap”, “browse-wrap” or any other form of license agreement, Customer will assure the individual installing the software and services has proper Customer authorization to install the software or service, accept the software or service license terms for Customer, and must assure such software or service is properly licensed, installed and registered to Customer.
- Customer’s Services and Work Product. Customer and MSI agree and acknowledge that Customer is and will be the sole and exclusive owner of all right, title, and interest throughout the world, including without limitation all intellectual property and other proprietary rights (collectively, “Ownership Rights”) in and to the Services and Work Product, and all parts thereof, with the exception of the MSI Content and Third Party Content, without additional compensation to MSI.
- MSI and its third party partners are not restricted from using residuals arising out of this Agreement in its business activities where “Residuals” means methods, ideas, concepts, know-how, techniques, program organization or database structuring techniques in intangible form, retained in the unaided memory by persons performing the Services to the extent it is not Customer Confidential Information or Intellectual Property.
- Notwithstanding the following, MSI and its third party partners shall own all right, title and interest in and to any and all suggestions, comments, improvements, or other feedback about the MSI Third Party Owned Products and Services (“Feedback”) that Customer or its affiliates offer directly or indirectly to MSI or its third party partners. Upon providing the Feedback, Customer hereby irrevocably assigns to MSI and its third party partners all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide MSI and its third party partners with any assistance they may require, at their sole expense, to document, perfect, and maintain MSI’s and its third party partner’s rights in the Feedback.
- Updates, Fixes, and Patches
- When Customer receives an update, fix, or patch to a Program or Product, Customer accepts any additional or different terms that are applicable to such update, fix, or patch that are specified in its License. If no additional or different terms are provided, then the update, fix, or patch is subject solely to the existing product license.
- If a Program or Product is patched upgraded, or replaced by an update, Customer agrees to promptly discontinue use of the replaced Program or Product.
- Licensed Product Delivery
- “Licensed Products” means all Licensed Products and Derivative Products, (“Products”); including software (“Software”), hardware (“Hardware”), data (“Data”), documentation and related materials.
- MSI and third party software is licensed and not sold.
- The individual installing software and other licensed products must have proper Customer authorization and such software must be properly licensed, installed and registered to the Customer in accordance with the license. Downloaded software must be used only under the terms of its license.
- MSI Licensed Products and derivatives thereto are delivered to Customer:
- As intellectual property in accordance with Paragraph 4 above,
- In accordance with the applicable MSI license agreement specified in the SOW, which will be provided to Customer for its review and acceptance as part of the SOW review and acceptance process,
- As, in the case of software, either as compiled software or source code format. Source code shall be controlled as Confidential Information in accordance with this Agreement.
- Third party Licensed Products are provided by MSI in accordance with the applicable third party product license agreement, which is to be reviewed and accepted by Customer as part of the SOW review and acceptance process.
- MSI will inform the Customer of, and obtain advance approval of the Customer, for MSI and Third Party Owned Products and Services that are to be utilized and/or incorporated into the Deliverables. As part of the notification process, MSI will inform the Customer about any licensing requirements prior to the utilization and/or incorporation.
- Proprietary Notices. Customer shall not remove any Product identification or notices of any proprietary or copyright restrictions from any Products, Services documents or any support material.
- Customer understands and agrees that Customer’s reasonable cooperation is required in order for MSI to properly, efficiently and effectively perform the Services for Customer hereunder. Customer agrees to comply with all of MSI’s reasonable requests made in connection with the provision of Services to Customer hereunder.
- Customer shall provide to MSI all “Required Consents” necessary for MSI and its third party suppliers to provide the Products and Services described in this Agreement and the applicable SOW’s. A Required Consent means any consents or approvals required to give MSI and its third party suppliers the right or license to access and use the Customer’s and its third party’s software, hardware, firmware, or other products thereby enabling MSI and its third party suppliers to deliver the Products and Services set forth in the SOW without infringing the ownership or license rights of the providers or owners of such Products and Services. Customer shall be responsible for promptly obtaining and providing to MSI all “Required Consents” and pay any associated costs, fees or charges for such Required Consents necessary for MSI to provide the Services under this Agreement.
- If an SOW requires MSI to provide delivery, modification, maintenance and/or installation services for Hardware and/or Software, Customer agrees to provide a suitable installation environment as reasonably specified by MSI.
- MSI shall have no liability whatsoever for any delays, deficiencies or failures that occur in the performance of Services as a result of Customer’s unanticipated requests, Customer’s inadequate and untimely support, complications with Customer’s systems, programs, accounts and data, and other unforeseen circumstances beyond the reasonable control of MSI.
- Deliverable Acceptance Procedure
The acceptance criteria for the Deliverables shall be established in the applicable SOW.
- Confidential Information. Confidential Information means any and all nonpublic information disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) before, on, or after the date of the Agreement in connection with the Agreement, Products or Services that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, all tangible, intangible, visual, electronic, present, or future information concerning the Discloser’s business such as, without limitation: (a) trade secrets; (b) technical information, including without limitation, research, developments, procedures, inventions, ideas, processes, software programs and subroutines, computer source and object code, algorithms, data, designs, techniques, know-how, formulae, programs, other works of authorship; (c) financial information, including, without limitation, pricing; (d) business information, including, without limitation, operations, planning, marketing interests, promotional and marketing activities and products; (e) information with respect to MSI, vendors, and customers including, but not limited to, personally identifiable information, email addresses and any other contact information; and (f) the terms of any agreement between Customer and MSI and the discussions, negotiations and proposals related to that agreement.
- Confidential Information Exceptions. The Recipient does not have an obligation to protect Confidential Information that is: (a) in the public domain through no fault of the Recipient; (b) within the legitimate possession of the Recipient, with no confidentiality obligations to a third party; (c) lawfully received from a third party having rights in the information without restriction, and without notice of any restriction against its further disclosure; (d) independently developed by the Recipient without reference to any Confidential Information or breaching this Agreement or by Parties who have not had, either directly or indirectly, access to or knowledge of the Confidential Information; or (e) disclosed with the prior written consent of the Discloser.
- Disclosure Of Confidential Information. Confidential Information may be disclosed in writing, or other fixed media or disclosed in any other manner, including, without limitation, oral, visual, or electronic means. Each Party agrees to limit disclosure of any Confidential Information, received from the other Party, to its employees, agents, contractors, Affiliates, and advisors on a need to know basis. The Receiving Party and its personnel may use Confidential Information of the Disclosing Party only for the purpose of fulfilling its obligations under this Agreement. Except as stated in the previous sentence, Receiving Party and its personnel agree not to disclose to any third–party, nor use for their own benefit or for the benefit of any other person or entity, such Confidential Information. The Parties agree to ensure that such employees, agents, contractors, Affiliates, and advisors acknowledge in advance that they are bound by the obligations as set forth in this Agreement with respect to any Confidential Information they may receive, and to use their best efforts to ensure that such persons comply with those obligations. Recipient is fully liable for any acts of its Representatives in violation of this Agreement.
- Use of and Duty of Care to Protect Confidential Informat The Recipient will use Confidential Information only to further the relationship between the Parties and will not reproduce Confidential Information except to accomplish this purpose. Confidential Information may not be disclosed to any third party without the prior written consent of the Discloser (other than to such parties’ Representatives and as may be required by applicable law and regulation). The Recipient will take all reasonable measures to avoid unauthorized disclosure, dissemination or use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature.
- Ownership. Confidential Information remains the property of the Discloser. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual property rights are implied or granted to the Confidential Information, except to use the Confidential Information as provided in the Agreement. On termination of the Agreement or at the Discloser’s written request at any time, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be returned to the Discloser or destroyed by the Recipient. At the request of the Discloser, the Recipient will promptly confirm in writing that any Confidential Information has been destroyed. Notwithstanding the foregoing, copies of Confidential Information that are required to be retained by law or regulation or audit requirements or that are created pursuant to any automated archiving or back-up procedures which cannot reasonably be deleted may be retained, however, such Confidential Information shall continue to be subject to the terms of this Agreement.
- No Reverse Engineering. Each Party will not, and will not permit any third party to, reverse engineer, decompile or disassemble any hardware or software received from the other Party for any purpose inconsistent with this Agreement.
- No Warranty. Except as otherwise agreed in writing with respect to a specific transaction or SOW, no warranties of any kind are given by either Party with respect to the accuracy, appropriateness or completeness of information provided to the other.
- Indemnity. Each Party represents and warrants that it has the right to disclose all Confidential Information that it discloses to the other Party. Each Party will indemnify and defend the other from all third-party claims resulting from the indemnifying Party’s negligent disclosure of a third-party’s confidential information or disclosure of a third-party’s confidential information in a manner that violates the confidentiality obligations the indemnifying Party has to the third-party.
- Right to Enjoin Disclosure. The Parties acknowledge that a Recipient’s unauthorized disclosure or use of Confidential Information may result in irreparable harm. If there is a breach or threatened breach of this Agreement the Discloser may seek a temporary restraining order and injunction to protect its Confidential Information. This provision does not alter any other remedies available to either Party. The Party who has breached or threatened to breach this Agreement will not raise the defense of an adequate remedy at law.
- Legal Disclosure If the Recipient is required, by law, rule, regulation, oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or other legal or judicial process, or regulatory agency or stock exchange rule (collectively, “Law”), to disclose any Confidential Information or related discussions, the Recipient will give the Discloser prompt written notice (to the extent practicable and permitted by applicable law, rule, regulation, regulatory body or court) so that the Discloser may seek a protective order or other appropriate remedy, and the Recipient will cooperate with the Discloser in that effort to the extent commercially reasonably and at the Discloser’s sole expense. If such protective order or other remedy is not obtained, the Recipient will furnish only that portion of the Confidential Information or related discussions that it is advised by its counsel is required to be furnished, and the Recipient will request that the party to whom the Confidential Information is furnished agree in writing that the Confidential Information or related discussions will be kept confidential. Notwithstanding the above, notice shall not be required where disclosure is in connection with a routine audit or examination by, or a blanket document request from, a regulatory or governmental entity that does not specifically reference the Discloser or this Agreement.
- MSI will indemnify, defend, and hold Customer and its officers, directors, employees, contractors, Affiliates, and agents (collectively, “Indemnified Parties”) harmless from claims, suits, demands, costs, liabilities, expenses, and damages (including reasonable attorneys’ costs and fees) (collectively, “Claims”) that are caused by or arise out of:
- MSI’s gross negligence, willful misconduct, or fraud in relation to or in connection with its performance under this Agreement;
- Disclosure of a third party’s confidential information in a manner that violates the confidentiality obligations MSI has to the third-party;
- Gross negligence or willful acts or omissions that result in any bodily injury or death to any person or loss, disappearance, or damage to tangible or intangible property;
- A breach of this Agreement by MSI; or
- Information, design, specification, instruction, software, data or material (“Material”) furnished by MSI or any of its Indemnified Parties hereunder, or any Product, Software, Services or Deliverable infringes a third party’s copyright, trade secret, patent, trademark, publication or other proprietary right.
- Customer shall indemnify, defend, and hold MSI and its affiliates and their respective shareholders, directors, officers, employees, and agents (each an “Indemnified Party”) harmless from and against any Claims that are caused by or arise out of:
- Customer’s gross negligence, willful misconduct, or fraud in relation to or in connection with its performance under this Agreement;
- A breach of this Agreement by Customer; or
- Material furnished by MSI or any of its Indemnified Parties hereunder, or any Product, Software, Services, or Deliverable infringes a third party’s copyright, trade secret, patent, trademark, publication or other proprietary right to the extent that (a) the claim is based on specifications provided by Customer and such reliance is the cause of the infringement, (b) such claim is based upon Customer’s use of a superseded or altered version of some or all of the Material, if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered release of the Material which was provided to the Customer, (c) such Claim is based upon Customer’s alteration and/or use of some or all of the Material in a manner that violates a Material contract or license which was provided to Customer, and/or (d) the combination of a Deliverable or Material with any products or services which are not provided or otherwise authorized by MSI, if such claim would not have arisen but for such combination.
- In the case of a third party Claim against MSI of intellectual property infringement or upon any facts which in MSI’s sole opinion are likely to give rise to such Claim, MSI shall in its sole discretion and at its sole option elect to:
- Modify the Product and/or Service to avoid the alleged infringement but in a manner so that it remains functionally equivalent;
- Replace the Product and/or Service so that it becomes non-infringing but functionally equivalent;
- Procure for the Customer the right to continue to use the Product and/or Service, at no additional cost to the indemnified Party; or
- Terminate this Agreement or the affected SOW and provide a refund to the Customer of all amounts paid by the Customer to MSI for the affected Product and/or Service.
- In the case of a third party Claim against the Customer, or its officers, directors, employees, Affiliates, partners and agents that materially affects MSI’s ability to meet its obligations under the relevant SOW, then MSI may, at its sole discretion and upon thirty (30) days prior written notice to Customer, terminate such SOW, in which case Customer shall pay MSI for Products delivered and the Services rendered in accordance with this Agreement through the date of termination, and for all reasonable non-cancelable commitments incurred directly in the performance of the Services and delivery of Products that are outstanding as of the effective termination date, provided that MSI uses its best efforts to mitigate same.
- When seeking indemnification, the indemnified Party will use reasonable efforts to promptly:
- Notify the indemnifying Party in writing of any such Claim; and
- Give the indemnifying Party full control and sole authority over the defense and settlement of such Claim, provided settlement fully releases the indemnified Party, and is solely for monetary damages and does not admit any liability on behalf of the indemnified Party. Notwithstanding the foregoing, (i) the indemnified Party may join in defense and settlement discussions directly or through counsel of indemnifying Party’s choice at indemnified Party’s own cost and expense and (ii) indemnifying party may not settle a claim without the indemnified party’s prior written consent if such settlement places liability, obligations or otherwise adversely affects the indemnified party.
- Representations And Warranties
- Each Party represents and warrants that:
- It has the right, power and authority to enter into this Agreement and perform according to its terms;
- The performance of its obligations will not breach any agreements with a third party;
- The Materials do not contain any libelous, materially false, or misleading statements; and
- The Party’s activities comply with all applicable laws, rules and regulations.
- MSI represents and warrants that it will perform its obligations in a timely manner and with professional diligence and skill in a manner consistent with the good workmanlike standards. Customer shall report any deficiencies in the Products and/or Services to MSI in writing within thirty (30) days of performance of such Products and/or Services in order to receive warranty remedies. Within thirty (30) days of notice, MSI will perform such Services to Customer’s reasonable satisfaction, repair or replace the Product so that it conforms with the specifications therefor, or if MSI is unable to do so, refund to Customer the fees paid for such nonconforming Product and/or Service.
- While efforts are made to verify the completeness and accuracy of the information provided by MSI, MSI shall not be responsible for any damages arising out of the use of any information related to any Products or Services or any documentation provided by MSI. No information or anything contained in documentation provided by MSI is intended to, nor shall have the effect of, creating any warranties or representations by MSI (or its suppliers or licensors), or altering the terms and conditions of any applicable agreements.
- MSI does not provide legal advice. Customer is responsible for ensuring its own compliance with legal, regulatory and court requirements. It is the Customer’s sole responsibility to obtain advice of competent legal counsel as to the identification, interpretation and implementation of any relevant laws, regulatory requirements, court rules and court rulings that may affect the Customer’s business and any actions the Customer may need to take to comply with such requirements.
- MSI does not warrant that Customer’s use of the Products and Services will be uninterrupted, error-free or free of harmful components, that the content will be secure or not otherwise lost or damaged or that the documentation will meet Customer’s requirements.
- MSI is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
- Third party warranties are issued by the respective third party manufacturers/suppliers.
- EXCEPT AS PROVIDED IN THIS PARAGRAPH 11 (REPRESENTATIONS AND WARRANTIES), ALL INFORMATION, DOCUMENTATION, HARDWARE, SOFTWARE AND/OR SERVICES ARE SOLD, LICENSED OR DELIVERED “AS IS”. MSI DISCLAIMS ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES. THIS INCLUDES THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THIS ALSO INCLUDES ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
- Business Contact Information
- MSI and Customer both acknowledge that the information required for the two companies to conduct business under this Agreement, such as a person’s name, business phone number, business email address, business address, and business fax number are not Non Public Personal Information (NPPI) as defined by applicable law, Statute, or regulation.
- Both Parties agree that if business contact information one Party provides to the other Party includes Personal Data, Non-Public Personal Information (“NPPI”), or Protected Health Information (“PHI”) as defined by the applicable laws, statutes and regulations, the Disclosing Party will:
- Warrant that it has obtained all necessary consents from the affected individual(s) to provide the Personal Data to the Receiving Party for the purpose of performing this Agreement, and taken any other actions required by applicable laws, including but not limited to data privacy laws, prior to disclosing any Personal Data; and
- Notified the Receiving Party regarding what information is Personal Data, NPPI or PHI so that the Receiving Party can either refuse to accept the information, or accept and use it for the intended purpose in accordance with applicable regulations.
- Data Processing Protection
- The Customer hereby represents and warrants, under its own responsibility that no Personal Data subject to GDPR or other Personal Data protection laws are or will be processed by MSI as a Data Processor on behalf of the Customer as part of the Service provision.
- The Customer shall communicate to MSI in writing, without undue delay, any anticipated change affecting Customer’s representation and warranty in Section 13. (A). above. The parties then will agree to enter into a data processing agreement, which shall amend this Agreement, as is reasonably required (1) to reflect each Party’s obligations and risks under the GDPR or other Personal Data protection laws and (2) for MSI to provide the Services in a manner that allows Customer and MSI to comply with their respective obligations under the applicable Personal Data protection laws prior to the change affecting Customer’s representation and warranty in Section (A), above.
- The Customer agrees to assist MSI in any request or procedure by a national data protection supervisory authority, or in any lawsuit, relating to the processing of any Personal Data covered by the representation and warranty in Section 13. (A) above.
- Furthermore, the Customer shall indemnify MSI for any cost, charge, damages, expenses or loss arising from Customer’s noncompliance with Section 13. (A), (B), and (C) above.
- DISCLAIMER AND LIMITATIONS OF LIABILITY
- MSI SHALL BE ENTITLED TO RELY ON ANY AND ALL INFORMATION AND MATERIALS PROVIDED TO IT BY CUSTOMER, AND MSI SHALL NOT BE LIABLE FOR ANY INACCURACY OR INCOMPLETENESS OF SUCH INFORMATION OR MATERIALS.
- UNLESS SPECIFICALLY STATED OTHERWISE IN THE APPROVED STATEMENT OF WORK, CUSTOMER ACKNOWLEDGES AND AGREES THAT ITS SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA AND THAT CUSTOMER WILL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. MSI, ITS VENDORS, PARTNERS, AND THIRD PARTY LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST OR CORRUPTED
- NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, MULTIPLIED OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS AND LOSS OF OR DAMAGE TO DATA, HARDWARE OR SOFTWARE, EVEN IF THE PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EACH PARTY’S LIABILITY TO THE OTHER PARTY FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND RESULTING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT OR IN CONTRACT, SHALL BE LIMITED TO THE AMOUNT PAID TO MSI DURING THE PRECEDING 12 MONTHS FOR THE LATEST AFFECTED SOW HEREUNDER OR $50,000 USD, WHICHEVER IS GREATER, WITHOUT INTEREST.
- THE FOREGOING DISCLAIMERS OF LIABILITY AND LIMITATIONS OF DAMAGES SHALL NOT APPLY TO INDEMNIFICATION CLAIMS PURSUANT TO SECTION 10 OR CLAIMS BASED ON VIOLATION OF CONFIDENTIALITY, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
- Except as provided in Section 15(B), neither Party may assign the Agreement or its rights and/or delegate its obligations under the Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Any assignment or transfer of the Agreement by a Party in violation of this section will be void.
- Either Party may assign the Agreement to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of such Party to such entity and such entity agrees in writing to be bound by the terms of the Agreement.
- This Agreement will be binding on and inure to the benefit of Customer’s and MSI’s respective permitted successors and permitted assigns.
- Inability to Perform
Neither Party shall be required to perform its obligations under this Agreement, or be liable for its failure to perform, during any period in which such non-performance is caused by an event beyond the Party’s reasonable control, such as an act of God, a significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, civil disturbance, riot, strike, work stoppage, transportation delay, unavailability of Hardware or Software, product shipping delay or cancellation by manufacturers, power failures, any act or order of any governmental agency or official thereof. In such event, the party that is unable to perform shall give prompt written notice to the other party, which shall have the right to terminate this Agreement if full performance in accordance with this Agreement has not resumed within thirty (30) days of the written notification.
The Parties acknowledge that Products and/or Services provided hereunder, including documentation, other technical data, and/or training and/or education materials, may be subject to export controls imposed by law, rule or regulation. Neither Party will export or re-export (directly or indirectly) any such Products and/or the results of Services, or any such documentation, other technical data, and/or training and/or education materials, without complying with all applicable laws, rules and regulations. Each Party shall comply with the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Materials, Products or results of Services (or any product incorporating such Products or Services) in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to destinations prohibited either in Country Groups Q, S, W, Y or Z country specified in the then current Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations), or the OFAC regulations found at 31 C.F.R. 500 et seq.). Each Party shall bear its own expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of all Products to any location desired by such Party.
- Similar Services
- This Agreement is nonexclusive. It does not restrict either Party from offering to, or procuring from, any third party the same or similar Products or Services.
- A Party may use the same personnel to provide those services to others in the same industry as the other Party, and to develop new Products and Services. These personnel, however, must abide by the terms of this Agreement including the protection of the other Party’s Confidential Information.
- Non-Hire Covenant
- Both parties agree that during the period that this agreement is in force, including extensions or modifications thereto, and for an additional 12 months following this period, neither Party will actively recruit, or solicit permanent employees of the other Party, or the employees of any of the other Party’s subcontractors, who are on active payroll status and are actively engaged under this Agreement, without the prior written approval of the Party whose employee is being considered for employment. This does not prohibit any employee from responding to or pursuing employment opportunities through normal media channels, i.e. newspapers, professional journals, etc. or general solicitations so long as it is not an attempt to avoid the intent of the above restriction.
- Breach of this provision may result in the non-breaching Party pursuing all of its remedies under this Agreement, including injunctive relief. In such event, the non-breaching Party may terminate this Agreement without further liability.
- Relationship Of The Parties And Their Employees
- Independent Contractors Nothing contained herein shall be construed as creating a partnership, joint venture or agency or employment relationship between MSI (and its employees and Subcontractors) and Customer. In performing all Services required hereunder, each Party shall act as an independent contractors to the other.
- Nonexclusive Agreement. This Agreement is nonexclusive. Except as otherwise provided in this Agreement each Party may independently engage in any business endeavor, whether or not it is competitive with the object of this Agreement, without consulting the other Party and without in any way being accountable to the other Party.
- No Agency. Except as expressly provided herein, neither Party shall have any authority or power to contract or in any manner incur liability, retrospectively or prospectively, of any kind or nature for or in the name of the other Party or for which the other Party could or might be held liable to others.
- Employees. MSI’s employees who perform MSI’s obligations under this Agreement shall at all times be and remain employees of MSI, not employees of Customer. MSI shall pay MSI’s employees and shall ensure that each of its Subcontractors pays its employees, all wages, salaries, overtime, and other amounts due to such employees. MSI shall be responsible for, and shall ensure that each of its Subcontractors shall be responsible for, all reports, payments, and other obligations respecting their respective employees, including without limitation, those related to social security, income tax withholding, unemployment compensation, workers’ compensation, and employee benefit plans.
- Term and Termination
- The initial term of this Agreement shall commence on the Effective Date and shall continue for one (1) year. Upon expiration of the Initial Term, and upon each subsequent anniversary date, this Agreement shall automatically renew for a period of twelve (12) calendar months (each a “Renewal Term”) unless MSI or Customer provides the other with sixty (60) days written notice prior to the expiration of the then-current Term. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term”.
- This Agreement shall continue in effect until terminated in accordance with this Agreement or replaced by a new or updated Agreement.
- This Agreement may be terminated on sixty (60) days written notice by either Party. In the event of termination hereunder, MSI shall receive payment for the following:
- a prorated fee for all Services performed and all Products delivered consistent with the terms of this Agreement and applicable SOW’s as of effective termination date, and
- for all reasonable non-cancelable commitments incurred directly in the performance of the Services and delivery of Products that are outstanding as of the effective termination date, provided that MSI uses its best efforts to mitigate same.
- If an SOW is outstanding and performance thereof has begun, the Parties agree that such SOW(s) shall be honored and completed and that the terms and conditions of this Agreement shall continue in full force and effect with regard to such SOW (except that, if an SOW is for Services only, the Parties may agree to cancel such Services at any time). Performance shall be deemed to have begun if MSI has ordered, or irrevocably committed to order, any Products from manufacturers, distributors, etc. that cannot be returned. If return of the Products is possible, then Customer may cancel the SOW and will pay MSI any applicable return fees, such as shipping and restocking fees. If performance under an SOW has not begun, then either Party may cancel such SOW by giving the other Party notice thereof.
- Notwithstanding paragraph (C) above, in the event of a breach of this Agreement, this Agreement may be terminated by the non-breaching Party thirty (30) days after a written notice of the breach has been delivered to the breaching Party, and the breaching Party has failed to remedy the breach within thirty (30) days from the date of written notification.
- Upon expiration or termination of this Agreement, neither Party shall be relieved from any obligation accrued up to and including the date of such expiration or termination nor deprived of any right or remedy otherwise available to it pursuant to this Agreement.
- Any and all written notices or other written communication provided for herein shall be deemed to be validly given:
- As of the date of delivery if delivered personally; or
- Three (3) days after a mailing if sent by registered or certified mail, postage prepaid, return receipt requested.
- When a facsimile or other electronic version of a notice is duly executed and transmitted
- All notices shall be addressed to the Parties at the following addresses:
|If to MSI:||MSI Software LLC.
1140 Parsippany Blvd.
Parsippany, NJ 07054
|If to CUSTOMER:||Customer Name
- Waiver Of A Right
No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof.
Any terms of this Agreement, which by their nature extend beyond Agreement termination, remain in effect until fulfilled and apply to each Party’s respective successors and permitted assignees. Any provision of or obligation under this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any such termination or expiration, and shall continue in full force and effect.
- Section Headings
The headings of the sections in this Agreement are for the purposes of convenient reference only and are not intended to be part of this Agreement, or to limit or affect the meaning or interpretation of any of the terms hereof.
- Agreement Execution
This Agreement may be executed in any number of counterparts with the same effect as if the signatures were upon a single engrossment of this Agreement, but shall not be effective until each Party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one and the same instrument. An electronic copy of or electronic signature to this Agreement shall have the same legal force and effect as an original signature on an original document.
- Dispute Resolution & Choice of Law
- The Parties shall attempt in good faith to resolve all claims, disputes and controversies arising out of or relating to this Agreement or the relationship of the Parties (collectively “Dispute”) in the ordinary course of business.
- All negotiations and mediations under this Section 26 shall be considered confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
- The terms of this Section 26 shall not prevent either Party from taking appropriate measures, including, without limitation, seeking immediate injunctive relief to protect its confidential information or intellectual property interests.
- In the event it becomes necessary for either Party to enforce the terms and conditions of this Agreement through litigation,
- each party irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or any purchase order incorporating this Agreement.
- the prevailing Party pursuant to a final, non-appealable order shall be entitled to recover all reasonable out-of-pocket costs incurred, including reasonable attorneys’ fees, that are ordered by a court of competent jurisdiction. In the event such claims, loses, damages, or expenses are caused by the joint or concurrent negligence of Customer and MSI, or their respective agents, officers, employees or Subcontractors of any tier, they shall be borne by each Party in proportion to the negligence, as determined by a court of competent jurisdiction.
- Attorney’s Fees. In the event that any party institutes any legal suit, action or proceeding against the other party to enforce the conditions and covenants contained in this Agreement or obtain any other remedy in respect of any breach arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs, that are ordered by a court of competent jurisdiction.
- Governing Law, Jurisdiction and Venue.
This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction). The Parties agree to the exclusive venue and jurisdiction of the federal and state courts in and for Morris County, NJ. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. This Agreement shall not be governed by the UN Convention on the International Sale of Goods, or any enactment of the Uniform Computer Information Transactions Act. To the extent that UCITA is applicable, then the Parties each agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained in UCITA.
- Entire Agreement
- This Agreement, including any Attachments and Statements of Work constitutes the entire agreement between the Parties regarding the subject matter hereof and is the 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. No provision or pre-printed terms on any hard copy or electronic purchase orders, proposals, or quotations or in any other hard copy or electronic business document or form employed by either Party will supersede, augment or modify the terms and conditions of this Agreement, and no promise, representation, warranty, or covenant not included in this Agreement has been or is relied upon by either Party. Each Party hereby rejects all such different or additional terms offered by the other Party
- If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such term or provision shall be deemed modified to the extent necessary, in the court’s opinion, to render such term or provision enforceable. Upon such modification, the rights and obligations of the parties shall be construed and enforced in accordance with such modification, preserving to the fullest permissible extent the intent and agreements of the parties set forth in this Agreement.
- No modification or amendment to this Agreement shall be of any force or effect unless in writing and executed by Customer and MSI.
- Each Party has relied upon its own examination of this Agreement and the provisions hereof and upon the counsel of its own advisors.
I have read, understand and agree to the terms and conditions of this Agreement and agree to be bound by them.
|Customer||MSI Software Inc.|
|Title:||Title:||VP Security & Compliance|