TERMS OF SERVICE
InterOperate Terms of Service ("Master Service Agreement")
This InterOperate Master Service Agreement (“MSA”) is entered into by and between (“Customer”) and InterOperate LLC, a North Carolina limited liability company (“InterOperate”), each a “Party” and together the “Parties”, and governs the Parties’ agreement for Deployments and Services as defined below and InterOperate’s access to Customer systems, subject to the terms and conditions set out in this MSA.
The Parties hereby agree as follows:
(i) InterOperate is an independent hardware, software and services provider whose products and services (“Services”) work with or otherwise complement Third Party Partner Products.
(ii) Customer requires InterOperate Services in respect of Third Party Partner Products.
(iii) The Parties shall enter into Statements of Work (each, a “SOW”) to specify Project Details and Scope, Out of Scope, Specific Project assumptions, the project schedule, and a compensation and payment schedule with pricing.
This MSA shall commence on the Effective Date and will continue for an initial term of one calendar year (“Initial Term”) unless terminated earlier in accordance with the terms of this MSA. Each SOW shall commence on the date specified in the SOW and shall continue in effect until performance thereunder has been completed, unless otherwise provided for herein and/or earlier terminated as provided therein.
After the Initial Term, this MSA will automatically renew for successive periods of 12 month(s) (together with the Initial Term, the “Term”) until terminated by either Party giving a minimum of 30 days’ prior written notice to the other Party or otherwise terminated earlier in accordance with the terms and conditions of this MSA.
This MSA and any SOWs may be executed in counterparts. A signature on any SOW delivered by electronic or facsimile transmission or DocuSign shall be effective to bind the executing Party to the terms of this MSA and associated SOW.
TERMS AND CONDITIONS
By signing the MSA to which these Terms and Conditions are attached, the Parties agree to be bound by these Terms and Conditions.
1. Definitions. In this MSA, unless the context otherwise requires:
“MSA” means this MSA signed by the Parties, the recitals, these Terms and Conditions together with any SOWs, which may be added to this MSA from time to time.
“Business Day” means any day 9:30 – 5:30 Monday to Friday and excludes weekends and bank and public holidays in the State of North Carolina.
“Confidential Information” means this MSA, and the pricing and other financial information contained in the terms of this MSA. Confidential Information also includes the original and any subsequent negotiations or renegotiations of this MSA, as well as all information, communications, data, documentation and materials, in any form (whether oral, written, graphic or otherwise) designated as confidential by the Disclosing Party, or which is in fact confidential in nature, and/or the Receiving Party knows or ought to know is confidential, including but not limited to all copyrights, works of authorship, inventions, Third Party Partner Products information, Services information, a Party‘s information of its partners and their information, marketing plans (including, without limitation: the identity of each Party’s resources, lists and personnel; Personal Data; titles; release dates; and the like); e-mail addresses; prices and discounts; plans; technical, business, commercial, development and systems timescales; Third Party Partner information and third party supplier information; employee, or financial information and all plans, proposals, forecasts, sketches, models, samples, databases, trade secrets, know-how, inventions, techniques, processes, procedures, methodologies, schematics, contracts; computer programs; documentation or other IT related information; drawings; specifications and all communications between the Parties pursuant to or in connection with this MSA (including all other notes, analyses, amendments, addenda (including but not limited to any dealing with full content and/or marketing incentives); compilations, studies and documents which relate thereto. Confidential Information excludes the following: (i) information which is in the public domain at the date of its disclosure to the Receiving Party or which thereafter enters the public domain through no fault of the Receiving Party (but only after it becomes part of the public domain); (ii) information which the Receiving Party can demonstrate was in its possession at the time of disclosure to the Receiving Party by the Disclosing Party and which is not subject to confidentiality restrictions; (iii) information made available to the Receiving Party by any third party who the Receiving Party had no reason to believe was not lawfully in possession of such information free of any obligation of confidence.
“Data Controller”, “Data Processor” and “Data Subject” have the meanings defined in GDPR.
“Data Protection Laws” means all European and US applicable laws, regulations, regulatory requirements and codes of practice in connection with the use, processing and disclosure of Personal Data. In the case of conflict, EU Data Protection Law shall prevail to the extent of any conflict (notwithstanding any law and jurisdiction clause to the contrary herein). In particular, the lawful basis for processing Personal Data shall be as EU Data Protection Law provides and not limited to consent;
“Deployment” means the Services to be provided by InterOperate or its subsidiaries of enabling user license activation, user training and productivity consultation as well as integration of Third Party Partner Product into Customer’s system so that so far as reasonably possible, it
operates as agreed directly between Customer and Third Party Partners. For the avoidance of doubt, such Deployments do not include customization for Customer of Third Party Partner Product nor operational support and maintenance of Third Party Partner platforms; customization and additional services can be supplied by InterOperate as Additional Services pursuant to an SOW to be agreed between Customer and InterOperate. Deployments may include supply of InterOperate products subject to express agreement with Customer in an SOW. Deployment is a service provided “as is” and without any warranties by InterOperate or its subsidiaries and without any warranty that Third Party Partner Products are suitable for Customer, meet its needs and are fit for purpose. For purposes of clarification and the avoidance of doubt, InterOperate does not provide any warranty which relates to the Third Party Partner Products, and Customer accepts, acknowledges and agrees that Customer must look to each Third Party Partner to determine if there are any Third Party Partner Product warranties from the applicable Third Party Partner.
“Disclosing Party” means the Party disclosing an item of Confidential Information.
“Force Majeure” means, in relation to either Party, a cause beyond the reasonable control of that Party including but not limited to natural disasters, armed conflict, terrorist attacks or the threat of terrorist attacks, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including but not limited to a public health crisis which results in a quarantine, a stay-at-home-order or other personnel restriction, strikes, labor disputes, work stoppages, fire, acts of government, computer worms or viruses (but not a failure by a Party to implement adequate virus protection), acts or omissions of any telecommunications or other supplier or any power failure, power surge or breakdown in equipment and further including any cause beyond a Party’s reasonable control affecting the proper performance of Services and/or which makes performance inadvisable, commercially impracticable, illegal or impossible. For the avoidance of doubt, an interruption or cessation of supply by a third party to which Services are connected is outside of that Party’s control.
“GDPR” means Regulation (EU) 2016/679 (General Data Protection Regulation).
“Intellectual Property Rights” or “IPR” means copyright and all other intellectual property rights (including, without limitation, patents, trademarks, trade secrets, service marks, designs, domain names, database and sui generis rights, moral rights (whether registered or unregistered) and any other similar protected rights in any country). The Intellectual Property (or “IP”) of each Party includes, without limitation, its copyright and other works in respect of which it owns IP (and in the case of InterOperate, its Deployment and its Services, trade secrets, systems, processes, manuals and marketing materials and system, the software, or any portions thereof (including the design, look and feel, structure, organization, code, format, graphics (including all custom logos or graphics created by or on behalf of InterOperate) associated with the system or the software and its products and any modifications or derivative works therefrom.
“Personal Data” means any personal data relating to identifiable natural persons as more particularly defined in GDPR.
“Project Details” means the specific details of Third Party Partner Products or InterOperate Services to be included in the Deployments as set out in an SOW.
“Receiving Party” means the Party receiving Confidential Information.
“Services” means all and any services as may be provided by InterOperate to Customer directly. InterOperate’s Services include Deployments, which may include supply of InterOperate products subject to express agreement with Customer. Specific Project Details shall be agreed by the Parties in an SOW, and each SOW entered into by the Parties shall be expressly incorporated by reference into this MSA. InterOperate reserves the right to suspend or terminate InterOperate Services pursuant to clause 5.
“SOW”s means any additional terms attached to this MSA, as may be supplemented by the Parties by agreement from time to time. In the case of conflict between an SOW and this MSA, the SOW shall take precedence unless expressly stated to the contrary. All SOWs must be duly authorized and agreed by each Party in writing (which may be electronically).
“Third Party Partner” means a third party supplier of software products to Customers (not a Party to this MSA), which Customer requires to be integrated and deployed by InterOperate into its systems, as specified by an SOW. Such Third Party Partner is not a Party to this MSA and may not enforce its terms. InterOperate will not be responsible for the contents of any Third Party Partner agreement or SOW with the Customer. Customer will be responsible for contracting with Third Party Partner, unless an SOW between the Parties specifically states that InterOperate will contract with a Third Party Partner and resell Third Party Partner Products to Customer as an authorized reseller.
“Third Party Partner Products” means the latest release of Third Party Partner’s digital asset management software programs, technology and associated products and services, as may be supplied from time to time by Third Party Partner to Customers directly (or unless otherwise provided for pursuant to the terms and conditions of an SOW between the Parties if InterOperate has acted as an authorized reseller of certain Third Party Partner Products).
2.1 Customer hereby permits InterOperate, on a non-exclusive basis, to perform Deployment and other Services for Customer, which include the integration of Third Party Partner Products. For the purposes of this MSA, each Party shall proceed in good faith to fully cooperate with the other Party as the Parties agree from time to time. Customer accepts, acknowledges and agrees that Customer’s failure to provide the necessary cooperation may cause a disruption to the project schedule and delay Deployment. Further:
2.2 Governance. The Services are to be provided by InterOperate under the terms and conditions of an SOW, and performed by the InterOperate implementation team in partnership with Customer’s implementation team. The Customer’s agreement and associated EULA with Third Party Partner must be completed for the agreed project to commence
2.3.1 Customer will nominate a single Customer project team member to serve as the point of contact person to InterOperate for the Deployment, and Customer will ensure that during Deployment the point of contact person does not change unless absolutely necessary. This contact will be responsible for coordinating and supervising all Customer activities and interactions with InterOperate. The Parties may designate alternative or more specific contacts in any agreed SOW.
2.3.2 Customer Co-Operation: Customer shall in good faith provide such cooperation as reasonably required to enable InterOperate to fulfill its obligations pursuant to the Deployment SOW. Customer shall be responsible in particular and without limitation, to:
i. set up and maintain access on its platform to enable InterOperate to fulfill its obligations hereunder, store Deployment and training notes and communicate with Customer;
ii. promptly agree to attendance schedules and attend as agreed;
iii. appoint a Deployment project leader and notify InterOperate of the contact details;
iv. arrange and maintain a suitable online training platform and environment which its personnel are fully trained to use, together with efficient working necessary technology, such as a microphone, background silence, reliable and sound internet connection;
v. the supervision of all Customer personnel; and
vi. the procurement of Customer personnel to attend the booked sessions promptly, read accompanying materials provided by InterOperate, complete reasonable project assignments and other Deployment associated tasks.
2.4. Technical Assumptions.
2.4.1 There will be no modification to the Third Party Partner Products. However, InterOperate shall configure the Third Party Partner Products to Customer’s reasonable specifications as the SOW agrees.
2.4.2 Customer will ensure that the necessary environment is set up prior to the provision of InterOperate Services by InterOperate and made available during the Term without interruption.
2.4.3 All InterOperate Services shall be provided in English.
2.4.4 InterOperate reserves the right to train multiple users of Customer in a shared environment to optimize cost efficiencies at its discretion and on-line unless agreed to the contrary with Customer.
2.4.5 All Third Party Partner Products will be paid for in full by Customer prior to Deployment and the provision of any related Services by InterOperate. All InterOperate Services shall be subject to the fees and for the man hours pursuant to the terms and conditions of each applicable SOW.
2.5. Unless otherwise specifically agreed to in an SOW, each Party agrees and acknowledges that it shall have no right to access or use any object code or source code related to the other Party’s products or services unless as necessary for the purposes of this MSA and offered by the Party who is the owner of such IPR (or has the necessary IPR to allow for such access) in its absolute discretion.
2.6 Each Party acknowledges and agrees that the other Party is not responsible for and provides no warranties for Third Party Partner Products (or any other third party products) or indemnities on behalf of any third parties in this MSA.
3. Restrictions on use of other Party’s IP.
3.1 Unless specifically permitted under this MSA or an SOW, neither Party may without the prior written consent of the other Party (in respect of the latter’s IP):
(i) modify, enhance, reverse compile or engineer, adapt or alter the whole or any part of IP;
(ii) copy, transfer, sell, resell, sublicense, lease, loan, rent, time share or make any other commercial use whatsoever of IP or the system, or any copies thereof or any modifications thereto;
(iii) permit the whole or any part of IP to be combined with or incorporated in any other computer program or software;
(iv) make any copies, backup or archival copies of IP or any part thereof including any documents relating to them (except as is reasonably necessary for security purposes or as required by applicable law and provided that the non-owning Party reproduces and includes on all such copies any copyright or trademark notices or any other indication of the rights of the owner. Such copies shall be the property of the IP owner and this MSA shall apply to all such copies as it applies to the owner’s IP);
(v) disclose the results of any benchmark testing, technical results or other performance data relating to use of IP (including but not limited to the Services);
(vi) distribute or provide access to IP or software, or any portion thereof, to any persons or entities other than as this MSA provides expressly;
(vii) use IP in any way not expressly provided in this MSA. Each Party warrants and represents that it shall not remove any copyright, trademark or other proprietary notices contained on the Third Party Partner Products or other Party’s IP.
4. Unfair Business Practices.
4.1 Each Party shall refrain from engaging in any unfair business practices, including but not limited to Customer or InterOperate Services disparagement and bait and switch practices. Each Party shall refrain from making any representations, warranties or guarantees to third parties regarding the other Party’s products or InterOperate Services, or to any other person or entity, with respect to the specifications, features or capabilities thereof that are incorrect, deceptive, misleading or otherwise inconsistent with the literature or documentation distributed by the owning Party with respect thereto.
4.2 With regard to each Party’s legitimate business interests and in acknowledgement of the sharing of valuable Confidential Information and that this clause is mutual and this MSA is for valuable consideration by each Party to the other, each Party agrees that it must not, during the Term or for one (1) year after its expiry or early termination, directly or indirectly request, encourage, canvass, accept an offer from or solicit or attempt to entice or employ: any of the other Party’s employees or persons independently contracted by the other Party to provide the same or similar or competing products or services as the other Party’s products or InterOperate Services (as the case may be) or any other services in connection with the other Party’s products, services or software or for other software training, implementation, Deployment, development or maintenance or support, subject to written prior agreement of the other Party to the contrary or any agreement prior to the Effective Date.
5. Payment Terms and Conditions.
5.1 Customer will be invoiced by InterOperate for each SOW engagement in full upon signature of the SOW. Customer shall pay such invoice within 14 days of receipt by Customer of the InterOperate invoice. In addition to the fees of InterOperate, Customer shall also pay any and all applicable taxes.
5.1.1 Overdue unpaid invoices incur interest at the rate of 1.5% per month. Failure to settle invoices within the specified payment period may also result in further action being taken to recover the outstanding amount. If an invoice becomes overdue, InterOperate may not commence the provision of services and will have the right to suspend any and all services governed by the terms and conditions of this MSA (even services that may be agreed to pursuant to a separate SOW).
5.1.2. Any legal or other costs that InterOperate incurs in pursuing overdue amounts will be added to the overall amount due.
5.1.3. Unless otherwise stated, all prices quoted are in $dollars (US) and are exclusive of applicable taxes. Payment shall be made in $dollars (US) to InterOperate.
5.1.4. Where applicable or in the event of onsite delivery, travel expenses and accommodation are payable by the Customer. Expenses in excess of $US 100 shall be pre-approved by the Customer; InterOperate shall provide expense receipts with invoice.
5.1.5. InterOperate is not responsible for resources who do not appear due to Force Majeure. InterOperate will however attempt to do everything reasonably in its power to supply a replacement resource, provided fair notice is given. In the event of a total no-show of any resources (or replacement resources) due to reasons within its control, the relevant session will be rescheduled as soon as reasonably possible, but no later than within 30 days. InterOperate shall not be responsible, however, for any additional costs or any consequent loss the Customer may suffer as a result of the cancellation.
5.1.6. Subject to the Session Cancellation Policy, the fees shall remain payable and no fees will be refunded in the event that the Customer chooses to cancel an SOW in whole or part prior to its completion.
5.2 Session Cancellation Policy.
5.2.1 Following signature of an SOW, Customer may cancel all consulting services scheduled and confirmed pursuant to the SOW (but not yet commenced) upon written notification of cancellation at least seven (7) calendar days from signature. In such circumstances: if payment has already been made, a refund may be provided at InterOperate’s discretion; and if no payment has been made InterOperate may cancel the invoice. However, in any event after the seven (7) day cancellation window or if the provision of services has commenced, the invoice shall remain due and payable in full (and no refunds shall be provided).
5.2.2 Other than as detailed above, Customer may not cancel an SOW in whole or in part for any reason. However, Customer may postpone a particular scheduled session (but not the entire SOW) following at least 72 hours’ prior written notice, and InterOperate shall reschedule the relevant session at its discretion; if less or no notice is so provided, the session may not be rescheduled. In any event, no refunds shall be provided and any prepaid unrecoverable travel and accommodation expenses shall remain due and payable in full. For the avoidance of doubt, where InterOperate reschedules a particular session, this shall be without additional charge to Customer.
5.3 Change Order. Changes to the scope of work, cancelled or delayed sessions by Customer and/or delays or failures by Customer to meet its obligations and the agreed assumptions will be processed through the creation of a Change Order. The time spent by InterOperate in estimating a Change Order may be charged to Customer, at the rate of $dollars (US) 350 per hour. Such changes may result in modifications to the estimated schedule, charges, and other terms of an SOW. Any addition to the Deployment and deliverables defined in an SOW that will affect either the scope or effort of the project will require both Parties to sign and approve a Change Order. Failing such agreement, the scope shall remain as provided in the SOW as amended by any last agreed Change Order.
5.4 Deployment Acceptance. Completion of the Deployment by InterOperate occurs when the agreed duration in the SOW has expired and InterOperate has performed all its obligations under the SOW, subject to an agreed Change Order. Pending completion, the Parties’ project teams shall meet to review progress; Customer shall at that meeting accept successfully performed work to date and report any problems to that date. In any event the Customer has (7) calendar days to report any problems in writing with details; InterOperate shall use reasonable efforts to remedy remediable problems following receipt of the report. No refunds shall be provided. For purposes of clarification and the avoidance of doubt, InterOperate shall not be tasked with or responsible for the resolution of problems which are unrelated to the Services provided by InterOperate and/or are outside the scope of the SOW; however, InterOperate will address problems which relate to Services which do not meet the specifications provided for in the SOW.
6. Project Terms and Conditions.
6.1 Customer will provide access to subject matter experts and decision makers to provide critical path project decisions in a commercially reasonable and timely manner. Customer shall in good faith provide such cooperation as reasonably required to enable InterOperate to fulfil its obligations pursuant to this MSA and each SOW. If input is not provided in a timely manner, a Change Order for material project impacts will be submitted to Customer; pending agreement of such Change Order, scheduled sessions and provision of services may be delayed. Where InterOperate has attempted by email and telephone to contact the Customer Deployment point of contact without success and had no contact with the deployment consultant for at least one calendar week, any scheduled sessions or services proposed by InterOperate shall be presumed agreed and InterOperate may proceed accordingly at its sole discretion.
6.2 Project milestones will be based on availability of Customer resources and key decision makers. Lack of access to the Customer project stakeholders can impact project timelines and cost.
6.3 InterOperate Services are delivered remotely unless otherwise agreed in writing.
6.4 The staffing for each project will be arranged following the signing of an SOW. Before the acceptance of the SOW, no staffing will be scheduled or allocated. The requested planned start date must be within thirty (30) calendar days from the signature date of the SOW; InterOperate will confirm the start date. This advanced notice is needed to provide InterOperate with enough time to allocate appropriate resources to start the project on time. During the term, further sessions may be scheduled by InterOperate following not less than 1 calendar week’s written notice.
6.5 Delays resulting from Customer’s inability to meet agreed project assumptions and its obligations pursuant to an SOW and/or failure to respond will be defined as “Project Delays.” Where InterOperate has attempted by email and telephone to contact the Customer Deployment point of contact without success and had no contact with the deployment consultant for at least one calendar week, this shall also be deemed a “Project Delay”. An SOW will detail the number of weeks before the project start
date; if InterOperate Services are not delivered within twice x that agreed number of weeks from the agreed start date in the SOW as a result of Project Delays such InterOperate Services will be deemed delivered and completed. By way of example only, if the SOW agrees a project start date and a 3 week Deployment, but as a result of Project Delays commencement and/or completion is not within at least 6 weeks from the agreed project start date, such agreed InterOperate Services shall be deemed delivered and complete
6.6 InterOperate will have fulfilled its obligations under this SOW when all deliverables are completed.
7. Warranties and Disclaimer of Warranties.
7.1 Each party represents and warrants that as of the Effective Date: (i) it is a legal entity duly organized or incorporated, validly existing and in good standing under the laws of the state of its organization or incorporation; (ii) it has all requisite corporate or organizational power and authority to execute, deliver and perform its obligations hereunder; (iii) it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations hereunder; (iv) it will obtain all applicable authorizations and licenses required of it in connection with its obligations hereunder; (v) it will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other Party’s obligations under this MSA or damage the reputation of the other Party; (vi) it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other Party to perform fully its respective obligations hereunder; and (vii) its performance of its obligations under this MSA will not violate any other agreement between such party and any third party.;
7.2 Each Party warrants that the facilities and process used by or on behalf of it pursuant to this MSA will not contain any computer viruses, spyware, backdoors, trojans or any other computer programming device that is intended to or could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or Personal Data. Neither Party makes any representation or warranty as to any third party licensed electronic system which is licensed to it for use in the Services
7.3 InterOperate represents and warrants that the training will meet Customer’s requirements as set forth in the applicable SOW. Customer will assume all responsibility for its choice to purchase the SOW Services it requires of InterOperate to achieve Customer’s intended results. Except as set forth in any SOW, training services are provided using personnel of the required skill, experience and qualifications, but otherwise “as is” and InterOperate expressly disclaims all non-mandatory implied terms in respect of such training services. InterOperate does not represent or warrant and expressly disclaims any representation or warranty and provides no indemnity that the Third Party Partner Products will meet Customer’s requirements nor as to the efficiency, IP ownership or accuracy of the data processed or software deployed by Third Party Partners nor that such supplies will be available without interruption during the course of any given month, as InterOperate does not control both ends of these services. Customer will assume all responsibility for supervision of its personnel and also for its choice to purchase the Third Party Partner Products to achieve Customer’s intended results. InterOperate makes no guarantee or warranty as to the Service quality support tickets and enhancement requests are categorized as non-urgent, deferred until Business Hours and are taken under advisement. Service timeliness, accuracy, quality, breadth, and depth vary by source. Any contract for InterOperate Services covers the availability of InterOperate Services as a whole and shall not extend to the ability to cover any particular Third Party Partner without interruption. The connections and data sources of Third Party Partners are maintained by third parties and maintenance of these feeds is the responsibility of such third parties.
7.4 Except as expressly provided in this MSA, InterOperate disclaims all warranties, whether express, implied or statutory, including all implied warranties of merchantability, title, fitness for a particular purpose and non-infringement of third party rights. In addition, InterOperate does not warrant that the Third Party Partner Products will operate in combinations other than as specified in a SOW or that the operation of the Third Party Partner Products will be uninterrupted or error-free or meet Customer’s requirements, and InterOperate does not make any representations or warranties of any kind which relate to the Third Party Partner Products (and specifically disclaims any and all Third Party Partner Product warranties, whether express, implied or statutory, including but not limited to warranties of merchantability, non-infringement or fitness for a particular purpose).
7.5 Neither Party has any right to pass on to the other Party any representation or warranty of any third party.
8.1 Save in respect of a breach of infringement of Intellectual Property Rights or breach of Confidential Information, in no event will either Party (including its directors, officers,
employees, representatives, agents and suppliers) be liable for any damages resulting from: loss of data or use, loss of revenue, economic loss, Force Majeure, loss of profits, loss of contracts, loss of anticipated savings, loss of goodwill or third party claims whether such losses are direct, indirect, special consequential, punitive or incidental; or any losses or damages that are indirect or secondary consequences of any act or omission of the Party, its employees, representatives, contractors or agents.
In either case, regardless of whether such losses or damages were reasonably foreseeable or actually foreseen, the total aggregate liability of a Party for all claims shall be no greater than the amount of that Party’s applicable insurance coverage limits.
8.2 Except for each Party’s obligations in relation to: (a) unauthorized use or disclosure of Confidential Information; and (b) breach of the other Party’s Intellectual Property Rights, the aggregate, cumulative liability of each Party (including its directors, officers, employees, representatives, agents and suppliers) under this MSA shall be limited to $dollars (US) 1,000 or the Charges due under the last SOW agreed by the Parties in dispute, whichever is greater. In respect of a proved breach of this MSA by InterOperate in respect of its obligations pursuant to GDPR, its liability shall be limited to either the amount for which it is found liable by a court, privacy commissioner, supervising authority or other regulatory authority of competent jurisdiction as a Data Processor or the amount of the SOW at issue, whichever is lower. A Party shall only be liable for damages arising from a data breach, including a Personal Data breach, to the extent caused by that Party’s gross negligence or willful acts or omissions.
8.3 All liability that is not expressly agreed by either Party in this MSA is hereby excluded to the fullest extent permitted by law. Notwithstanding anything to the contrary, nothing in this Clause 8 shall place a limit on either Party’s liability for fraud, death or personal injury caused by gross negligence or any other liability that cannot by law be excluded or limited.
8.4 The limitations set out in this Clause 8 will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action. For the purposes of this Clause, a reference to a Party includes that Party’s employees, agents, officers, directors, contractors, representatives and suppliers.
8.5 The Parties each acknowledge and agree that the exclusions and limitations set forth herein represent the Parties’ agreement as to the allocation of risk between them in connection with their obligations under this MSA, and neither Party would enter into this MSA without these limitations of liability.
9. Proprietary Rights.
9.1 Each Party shall maintain all pre-existing rights, title and interest in Intellectual Property Rights and/or proprietary rights. Each Party’s trademarks, or trademarks licensed to a Party, shall not be used by the other Party except as expressly authorized by the other Party in writing. Nothing in this MSA shall be construed to grant any interest to any Party in IPR of the other Party (including but not limited to the copyrights, trade secrets and trademarks of the other Party or licensed to such other Party). Any goodwill arising from use of a trademark embedded or comprising the IP or InterOperate Services shall inure to the benefit of such trademark’s owner; a Party’s marks may be removed with its prior written consent only. A Party shall not authorize any third party to use or display any trademarks of the other Party or licensed to the other Party in any way detrimental to the trademark’s owner or in any way that associates any good or service with such trademark other than that of the trademark’s owner.
9.2 Each Party acknowledges and agrees that it does not acquire any Intellectual Property Rights, proprietary rights or other rights in, or to: the other Party’s IP, services or any products or any related materials produced by that Party; or any documentation (including the Manuals), trade secrets, trademarks or service marks of the other Party, except as expressly provided in this MSA. All such rights are, and shall remain, vested in the owning Party or its licensors, including any right, title and interest in and to any software resulting from work undertaken by or on behalf of the owning Party.
9.3 With respect to any designs, materials or other deliverables that are required to be provided to a Customer by InterOperate under an applicable SOW (collectively, “Deliverables”), InterOperate will retain all right, title and interest in and to all new methodologies, processes or other intellectual property, including derivative works that are created in connection with any services (“New Process IP”). However, if and to the extent that such Deliverables or New Process IP include Customer components or other Customer IP, all rights, title, and interest in such Customer IP shall be retained by Customer, and Customer shall have the right to make use of such Deliverables as such Deliverables are intended to be used but Customer shall not have the right to resell, rent, license, time share, permit third party access to, alter, disassemble, decompile or otherwise reverse engineer any Deliverables (or permit anyone else to do any of the same).
9.4 Each Party agrees and acknowledges that it shall have no right to use for any purpose any trademark (whether in word and/or logo device form) or any other Intellectual Property Rights of the other Party without the prior written consent of that other Party and then only in such form and upon such terms as that Party may from time to time specify in writing.
10. General Data Protection Regulation.
10.1 The Parties, both during and after the Term of this MSA: a) shall comply with the Data Protection Laws; and b) shall not do, or cause or permit to be done, anything that may cause or otherwise result in a breach of the Data Protection Laws.
10.2 Each Party warrants that in the collection, control and management of Personal Data it has complied with all applicable Data Protection Laws. Each Party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
10.3 The Parties acknowledge and agree that in respect of all Personal Data provided by or processed on behalf of Customer, Customer is Data Controller and is responsible for ensuring a lawful basis for its processing of Personal Data and is responsible for implementing and maintaining appropriate technological and organizational measures for ensuring the security of Personal Data in compliance with Data Protection Laws. In respect of each Party’s resources, such Party is a Data Controller and the other Party is a Data Processor.
10.4 InterOperate as Customer’s Data Processor agrees with Customer that it shall only use and process such Personal Data to the extent required to comply with this MSA. Further, it shall:
(i) process such Personal Data only in accordance with Customer’s written instructions;
(ii) impose confidentiality obligations on all personnel (employees, contractors and volunteers) who process the relevant data;
(iii) ensure the security of the Personal Data that it processes with appropriate technical and organizational measures and assist Customer in meeting its Article 32 obligation to keep Personal Data secure;
(iv) abide by the GDPR rules regarding appointment of sub-processors;
(v) implement measures to assist Customer in complying with the rights of Data Subjects;
(vi) at Data Controller’s election either return or destroy the Personal Data at the end of the MSA but otherwise retain Personal Data pending written instructions from Data Controller to destroy the same or otherwise for business or legal purposes or legitimate interests as GDPR allows;
(vii) Each Party shall provide to the other Party all information necessary to demonstrate compliance with GDPR. Each Party shall submit to reasonable audits and inspections following reasonable notice, and thereby provide Data Controller with whatever information it needs to ensure that both Parties are both meeting their Article 28 obligations, and tell the other Party immediately if it is asked to do something infringing GDPR though the other Party acknowledges that this is a matter in respect of which each Party must take its own professional advice and does not impose any liability on the other Party.
(viii) Neither Party shall transfer Personal Data to any other person or entity without the prior written consent of Data Controller. Notwithstanding, a Party may disclose Personal Data in the following cases: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; (b ) as provided by this clause; (c) to detect, prevent, or otherwise address fraud, security or technical issues; (d) to respond to Data Subject’s support requests; (e) respond to claims that any Personal Data is inaccurate; (f) to protect the rights, property, or personal safety of each Party, Data Subjects, or the general public; (g) to collect, hold and/or manage Personal Data through its authorized third party service providers, as reasonable for business purposes, provided that they are located in countries inside Europe (or outside Europe and agreed by Data Controller), and only if approved in writing by Data Controller and upon the basis of a written contract which includes identical provisions to this clause and is fully GDPR compliant; (h) pursuant to Data Controller’s explicit written approval prior to the disclosure.
10.5 Each Party shall ensure appropriate technical, security and organizational measures are maintained against unauthorized access or unauthorized alteration, disclosure or destruction of, the Personal Data, and against all other unlawful forms of processing of such Personal Data, taking into account the state of technological development and the cost of implementing the measures, so as to ensure a level of security appropriate to: the harm that may result from unauthorized or unlawful processing, accidental or unlawful destruction or accidental loss or destruction of, or damage to, the Personal Data concerned and the nature of the Personal Data concerned. In particular, in coordination with the other Party, each Party shall ensure that all Personal Data that it processes using its own internal systems on behalf of the other Party are encrypted to FIPS standard 140 or higher; where, however, Customer requires communication with InterOperate by email or in another unencrypted system, the Customer as Data Controller prompting InterOperate’s use of email or other unencrypted systems accepts that InterOperate as Data Processor is not responsible for such use of unencrypted systems.
11.1 Subject to Clauses 11.2 and 11.3 below, either Party may terminate this MSA by giving the other Party at least 30 days’ written notice.
11.2 Notwithstanding Clause 11.1 above, either Party may immediately terminate this MSA by giving written notice to the other Party if: the other Party commits any material breach of any of the provisions of this MSA (including a breach of warranty) and, if the breach is capable of remedy, fails to remedy it within 30 days after being given a written notice setting out in reasonable detail the breach and requiring it to be remedied); or that other Party ceases, or threatens to cease, to carry on business.
11.3 Notwithstanding Clause 11.1 above, either Party may, in its sole discretion on written notice to the other Party, terminate or suspend this MSA immediately if the other Party uses any of the other Party’s IP for any unlawful, improper, fraudulent or illegal use or purpose or allows or enables any third party to do so.
11.4 Upon the termination of this MSA for any reason:
(i) All licenses granted hereunder shall cease and each Party shall cease to provide its IP for the MSA to the other Party;
(ii) The agreed Payment Terms shall apply. The accrued rights and liabilities acquired by the Parties prior to such termination shall not be affected.;
(iii) The rights granted under this MSA shall immediately terminate and each Party shall consent to the cancellation of any formal rights granted to it, or of any registration of it in any register, under or pursuant to this MSA.
12.1 All Confidential Information shall remain the property of the Disclosing Party. The Receiving Party shall treat as confidential all Confidential Information of the Disclosing Party. The Receiving Party shall take all reasonable measures available to it, and in any event not less than those used to protect its own Confidential Information (being no less than reasonable care) to protect the Confidential Information.
12.2 In this clause, “Recipient(s)” means the directors, employees, auditors and professional advisers of the Parties. Subject to the provisions of this clause, the Receiving Party may disclose the Confidential Information of the Disclosing Party to those Recipients that have, in the reasonable opinion of the Disclosing Party, a need to know such Confidential Information for the purposes of the proper performance of their obligations under this MSA provided it informs the Recipients of the confidential nature of the Confidential Information before disclosure and obtains from the Recipients enforceable undertakings to keep the Confidential Information confidential in terms at least as extensive and binding upon the Recipients as the terms of this Clause are upon the Parties.
12.3 The Receiving Party shall be liable for any harm caused by a breach of a Recipient’s confidentiality obligations detailed herein, and the Receiving Party shall ensure that the Recipients shall, at all times, except with the prior written consent of the Disclosing Party:
(i) not divulge, sell, transfer, exchange, or otherwise provide any Confidential Information (in whole or in part) to any third party except as expressly permitted by this MSA; and
(ii) not make any use of any Confidential Information (in whole or in part) other than for the purposes of performing the Receiving Party’s obligations and/or exercising the Receiving Party’s rights under this MSA.
12.4 The Receiving Party may disclose such part of the Confidential Information of the Disclosing Party to any governmental, judicial or other competent authority or competent regulatory body to such extent only as is necessary for the purposes contemplated by this MSA or as is required by law, provided, however, that before disclosing such Confidential Information to any such party, the Receiving Party shall, except to the extent that the Disclosing Party is in the process of seeking without notice injunctive relief, use reasonable efforts to:
(i) immediately notify the Disclosing Party in writing of the request for disclosure prior to any disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy (unless otherwise prohibited by law); and
(ii) permit the Disclosing Party a reasonable period of time to intervene and contest disclosure or production at the Disclosing Party’s own expense if the Disclosing Party so wishes, and the Receiving Party shall take such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by the governmental, judicial or other competent authority or competent regulatory body.
12.5 Within thirty (30) days of the termination of this MSA for any reason or on demand by the Disclosing Party, whichever occurs first, the Receiving Party shall:
(i) return all Confidential Information then in its possession or control, including whole or partial copies thereof in any media, all notes, memoranda and other materials containing Confidential Information, to the Disclosing Party; and
(ii) deliver written certification to the Disclosing Party that all of the Confidential Information which it had in its possession or control and which has not been returned has been securely destroyed.
12.6 The provisions of this clause shall continue in force in accordance with their terms, notwithstanding the termination of this MSA for any reason.
13.1 Any notice required or authorized by this MSA to be given by either Party to the other must be in English and in writing and may be: delivered by hand; or sent by prepaid registered post; or sent by email or Telegram, to the other Party at the address or email/Telegram address appearing at the top of this MSA, or to such other address or email address as may be notified in writing by that other Party from time to time in accordance with this provision. All such notices must be marked for the attention of Accounts and of Legal Department.
13.2 Statements of Work, change requests and operational notices may be submitted electronically or using an agreed management system.
14. Nature of the MSA.
14.1 Each Party may not assign or transfer this MSA (or any SOW) to a third party without the other Party’s prior written consent, except this MSA and all SOWS may be assigned to a successor to all, or substantially all, of the assets or business of such Party related to this MSA, without such consent. However, a Party will provide the other Party with written notice of any such assignment, or change of control or other acquisition, within five (5) days after the consummation thereof, and if the acquirer is a competitor of the other Party, the other Party will have the right to terminate this MSA (and all SOWs) immediately upon written notice to the assigning Party. Neither Party shall have the right to subcontract or otherwise delegate all or any of its rights or obligations under this MSA.
14.2 Nothing in this MSA shall create, or be deemed to create, a partnership, joint venture or the relationship of principal and agent, or employer and employee relationship between the Parties. At no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party. Each Party is solely responsible for the supervision of its personnel.
14.3 No person who is not a Party to this MSA may enforce any of its provisions. For the avoidance of doubt, Third Party Partners and third party suppliers are not a Party.
14.4 This MSA may not be modified except by an instrument in writing duly executed by or on behalf of each Party or as otherwise expressly stated in this MSA. This MSA supersedes any and all previous agreements or arrangements between the Parties relating to the subject matter of this MSA, and any other such agreement or arrangement shall, with effect from the Effective Date, be deemed to be terminated by mutual consent of the Parties; and, except for any accrued right or liability of any of the Parties at the Effective Date, none of the Parties shall be deemed to have any further right or obligation, or any accrued right or liability, under any such agreement or arrangement.
14.6 This MSA, which includes these terms and conditions, each SOW and Change Order, and each Schedule constitutes the entire agreement and understanding between the Parties in relation to the subject matter hereof. Each Party acknowledges that, in entering into this MSA, it does not rely on any representation, warranty or other provision except as expressly provided in this MSA, and any conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law, but nothing in this MSA shall affect the liability of any Party for any fraudulent misrepresentation.
14.7 If any provision of this MSA is held by any court or other competent authority to be invalid or unenforceable in whole or in part or is so rendered by any applicable code, regulation or law, such provision or the relevant part of the affected provision, as the case may be, shall be deemed deleted without prejudice to the remainder of the affected provision and the remaining provisions of this MSA which shall continue in full force and effect notwithstanding such deletion and the Parties shall promptly after such deletion negotiate in good faith to agree to a substitute provision or provisions complying with the said code, regulation or law.
14.8 No failure or delay by either Party in exercising any of its rights under this MSA shall be deemed to be a waiver of that right, or otherwise prejudice, affect or restrict the rights or remedies of that Party in relation to the other Party, and no waiver by either party of a breach of any provision of this MSA shall be deemed to be a waiver of any subsequent breach of the same or any other provision of this MSA.
14.9 The Parties agree that they will comply with the anti-bribery provisions of the United States Foreign Corrupt Practices Act, the Bribery and Corruption Act 2018 and any other associated legislation and with any equivalent legislation in the jurisdictions in which the Parties operate (or is established) and the territory all as may be updated from time to time. Each Party agrees that it shall disclose immediately to the other Party if any government official acquires any direct or indirect ownership interest in it or in this MSA. Each Party shall provide the other Party with any information reasonably requested by it with respect to this provision. A breach by either Party of this clause shall give the other Party the ability to terminate this MSA immediately.
14.10 Except as expressly provided in this MSA, the rights and remedies provided under this MSA are in addition to, and not exclusive of, any rights or remedies provided by law, in equity or otherwise in this MSA
15.1 Those provisions in this MSA which by their nature should survive termination of the MSA, including the provisions relating to Intellectual Property Rights and Confidential Information, proprietary rights, disclaimers, indemnification, limitations of liability and termination shall survive notwithstanding the termination.
16. Governing Law, Dispute Resolution and Waiver of Right to Trial by Jury.
16.1 This MSA and any disputes or claims arising out of, or in connection with, its subject matter, arising between the Parties, are governed by and construed in accordance with the laws of the State of North Carolina.
16.2 Any controversies or claims arising out of or related to this MSA, which cannot be amicably settled by and between the Parties, shall be submitted to binding arbitration conducted in accordance with the rules of the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services as in effect on the Effective Date of this Agreement or its successor. The place of arbitration shall be Charlotte, North Carolina. Either party may submit the matter to arbitration. Such disputes will be resolved by a sole arbitrator as mutually agreed upon by the Parties and shall be conducted in English. Award for such dispute will be rendered by a single, neutral, mutually agreeable arbitrator. The Parties specifically consent and agree that the appropriate courts located in Charlotte, North Carolina will have exclusive jurisdiction over enforcement of any arbitration decisions.
16.2 The Parties acknowledge that damages alone would not be an adequate remedy for the breach of any of the provisions of this MSA. Accordingly, without prejudice to any other rights and remedies it may have, each Party shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this MSA. The Parties hereby irrevocably waive all right to trial by jury in any proceeding (whether based in contract, tort or otherwise) arising out of or relating to this MSA (including, but not limited to, any termination of employment) or any transaction or agreement contemplated hereby or the actions of any Party hereto in the negotiation, administration, performance or enforcement hereof.
17. Drafting Agreement.
17.1 The Parties hereto, have both had the opportunity to be represented by legal counsel, have jointly participated in negotiation and drafting this MSA, including its exhibits and any attachments. In the event of an ambiguity or question of intent or interpretation arises, this MSA shall be construed as if jointly drafted by the Parties and no presumption, inference or burden of proof shall arise favoring or disfavoring a party by virtue of authorship of any or all of the MSA provisions.
18. Non-Exclusive Arrangement.
18.1 None of the activities performed by InterOperte under this MSA are exclusive to Customer, and InterOperate has the right to perform similar services for other parties.
19.1 Counterparts; Electronic Signatures.
19.1 This MSA may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement. The counterparts of this MSA may be executed and delivered by facsimile, email, or other electronic means by a Party to the other Party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile, email, or other electronic means as if the original had been received. Each Party agrees that the electronic signatures of the parties included on this MSA are intended to authenticate this writing and to have the same force and effect as manual signatures. “Electronic signature” means any electronic symbol and/or process attached to or logically associated with a document and executed by a party with the intent to sign such document, including facsimile, e-mail, or other electronic signatures.