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TERMS OF SERVICE

InterOperate Terms of Service ("Master Service Agreement")

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INTEROPERATE 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. 

WHEREAS: 

(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. 

The Parties hereby agree as follows: 

1.   Statements of Work; Projects. 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.

2.   Term.

2.1     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. 

2.2     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. 

 

3.   Cooperation

3.1     Appointment. 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.  

3.2     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. 

3.3     Third Party Terms.  Customer must accept and agree to any associated end-user license agreement or related terms with applicable Third Party Partner(s) prior to project to commencement.

3.4     Teams

3.4.1     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. 

3.4.2     Customer shall in good faith provide such cooperation as reasonably required to enable InterOperate to fulfil 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 fulfil 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. 

3.5   Technical Assumptions. 

3.5.1     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. 

3.5.2     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. 

3.5.3     All InterOperate Services shall be provided in English. 

3.5.4     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. 

3.5.5     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 work hours pursuant to the terms and conditions of each applicable SOW. 

3.5.6     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. 

3.5.7     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. 

4.   Intellectual Property. 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; or (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. 

5.   Payment Terms and Conditions. 

5.1     Invoicing and Payments. Except as otherwise indicated in an applicable SOW, InterOperate will invoice Customer for each SOW engagement in full upon signature of the SOW. Customer shall pay such invoice within thirty (30) 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. 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 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). Any legal or other costs that InterOperate incurs in pursuing overdue amounts will be added to the overall amount due. 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. 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. 

5.2 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. 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. 

5.3 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. InterOperate Services are delivered remotely unless otherwise agreed in writing. 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. 

6.3     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. InterOperate will have fulfilled its obligations under this SOW when all deliverables are completed. 

7.   Warranties and Disclaimer of Warranties. 

7.1     InterOperate represents and warrants that (i) the Services will be performed in a professional workmanlike manner by an adequate staff knowledgeable about the Services; and (ii) all Services will be performed in accordance with the applicable SOW. InterOperate does not warrant or guarantee in any way the results from the Services.  Customer agrees to provide and maintain systems and materials reasonably required by InterOperate to perform the Services, including as applicable, but not limited to:  program content and materials; Customer or third party databases; forecasts; current process performance statistics; Customer or third party software, hardware, systems, routing and network addresses and configurations; and key contacts for problem escalation (collectively the “Customer Systems and Materials”).  InterOperate shall not be liable hereunder relating to the Customer Systems and Materials including the failure by Customer to timely provide the Customer Systems and Materials.

7.2     Each party represents and warrants to the other that: (a) its execution and performance of this Agreement and the applicable SOW will not violate any provision of law, rule, regulation to which such party is subject; and (b) such party will comply with all laws, rules and regulations pursuant to which such party conducts its business. 

7.3     Each party represents and warrants to the other that: (a) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the applicable SOW; (b) the execution, delivery and performance of this Agreement and the applicable SOW have been duly authorized by such party; (c) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained by it in order for it to enter into and perform its obligations under this Agreement and the applicable SOW; and (d) the signatory to this Agreement and the applicable SOW possesses all necessary authority to enter into the Agreement and applicable SOW.

7.4     Customer represents and warrants that: (a) the Customer systems, materials and will be in compliance with all laws, rules, regulations; and (b) Customer is solely responsible for the content and rights to use the Customer Systems and Materials and InterOperate’s use of the Customer Systems and Materials shall not violate the rights of any third party or any law, rule or regulation. Upon request, Customer shall provide reasonable proof of compliance with the provisions set forth in this section and InterOperate shall have no obligation to provide Services where InterOperate reasonably believes that Customer has not so complied. 

7.5     EXCEPT AS EXPRESSLY PROVIDED HEREIN, INTEROPERATE MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND INTEROPERATE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. INTEROPERATE EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE.

8.   Liability

8.1     EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER.  THE TOTAL LIABILITY OF INTEROPERATE FOR ANY REASON, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO INTEROPERATE BY CUSTOMER UNDER THE SOW APPLICABLE TO THE EVENT GIVING RISE TO SUCH ACTION DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.  THE LIMITS ON LIABILITY IN THIS SECTION SHALL APPLY IN ALL CASES INCLUDING IF THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT PRODUCT LIABILITY, AND EVEN IF THE PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE OR FORESEEABLE.

8.2     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 its pre-existing IPR. 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. Any goodwill arising from use of a trademark embedded or comprising the IPR or Services shall inure to the benefit of such trademark’s owner; a Party’s marks may be removed with its prior written consent only.  

9.2     Except as set forth in subsection c. below or otherwise specified in a Statement of Work, all deliverables that are identified under an applicable SOW (“Deliverables”) (or any portion or a Deliverable) to be authored, developed, conceived, or created for Customer by InterOperate, either alone or in collaboration with third party subcontractors, (collectively, “Work Product”) are the exclusive property of InterOperate, and all right, title and interest to Work Product automatically vests in InterOperate.  InterOperate grants to Customer a nonexclusive, worldwide, royalty-free, irrevocable, perpetual license to use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works of the Work Product, including any preexisting proprietary information, InterOperate-owned materials,  document templates, or project tools used by InterOperate to deliver the Services (collectively, “InterOperate Intellectual Property”) included therein, and authorize others to do any or all of the foregoing in connection with Customer’s use of the Deliverables or Services.  

10.   Termination. This MSA and any SOW may be terminated as follows: (a) by either Party upon the failure by the other Party to perform any material obligation related to this MSA or such SOW that is not cured within thirty (30) days after receipt of written notice and demand for cure from the affected Party; (b) by either Party upon the violation by the other Party of any applicable state or federal law, statute, rule or regulation in relation to its performance of the SOW; provided that such right to terminate shall only be available for 30 days from the time that the non-violating Party is aware or should have been aware of such breach; or (c) by InterOperate, upon fourteen (14) days written notice if undisputed payments are in arrears. In addition, InterOperate may take any or all of the following actions any time undisputed payments are more than fourteen (14) days in arrears: (i) suspend the Services; or (ii) withhold data, materials or reports.

11.   Confidentiality

11.1     Each Party may disclose (the “Discloser”) confidential and proprietary information (“Confidential Information”) to the other Party (the “Recipient”).  In each such case, the Recipient shall hold such Confidential Information in confidence and shall not disclose such Confidential Information except to a party’s Affiliates, employees or agents who have a need to know such Confidential Information in order to perform such party’s obligations under this Agreement.  Client’s Confidential Information shall include of all information relating to the trade secrets or business affairs of Client including consumer data, merchandising plans, marketing plans and product design and information. Provider’s Confidential Information shall include the computers, systems and software operating the Services and all documentation, development tools, know-how and data related thereto, and any derivative works thereof as well as physical property, analytical procedures, techniques, skills, ideas, models, research, development, trade secrets or business affairs of Provider.  Neither party shall have any rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information upon the termination of the applicable SOW or the request of the Discloser.  Notwithstanding the foregoing, the parties acknowledge that Recipient shall not be required to return to Discloser or destroy those copies of Confidential Information residing on Recipient’s backup, disaster recovery, or business continuity systems and the obligations hereunder with respect to such Confidential Information shall survive until such Confidential Information is destroyed.

11.2     Notwithstanding any other term hereof, the term “Confidential Information” shall not include information that: (a) was already in the lawful possession of the Recipient prior to receipt thereof, directly or indirectly, from the Discloser; (b) lawfully becomes available to Recipient on a non-confidential basis from a source other than Discloser that is not under an obligation to keep such information confidential;  (c) is generally available to the public other than as a result of a breach of this Agreement by Recipient or its representative(s); or (d) is subsequently and independently developed by employees, consultants or agents of the Recipient without reference to the Confidential Information disclosed hereunder.  In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a competent governmental body provided that, promptly upon receiving any such request and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure in order that the other party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. 

11.3     To the extent that Services require InterOperate’s processing of Customer date subject to GDPR, the Parties shall enter into a data processing agreement annex to this MSA.

12.   General.

12.1     Choice of Law and Venue. This MSA is construed and enforced in accordance with the laws of the State of North Carolina without regard to its conflict-of-law provisions, and the Parties agree that in any dispute exclusive jurisdiction and venue must be in the state and federal courts located in ______, North Carolina.  The Parties mutually acknowledge and agree that they will not raise, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with this provision.  The Parties acknowledge and agree that this MSA relates solely to the performance of services (not the sale of goods) and, accordingly, is not governed by the Uniform Commercial Code of any state. 

12.2     Independent Contractors.  Customer and InterOperate are acting under this MSA as independent contractors.  InterOperate is not considered or deemed to be an agent, employee, joint venturer or partner of the other Party.  InterOperate is responsible for the conduct of its personnel.  Neither Customer nor InterOperate has the right to exercise any control over the other Party.  Each Party is solely responsible for hiring, firing, promoting, demoting, rates of pay, taxes, benefits and other terms and conditions in regard to its own personnel. 

12.3     Solicitation of Personnel.  Without the prior written consent of the other Party, during the applicable SOW Term and continuing through the first anniversary of the termination of the applicable SOW Term, neither Party shall, and shall ensure that its Affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any employees or agents of the other Party who are directly involved in carrying out the obligations of such Party related to the Services.   If any employee or agent of a Party, as a result of active recruitment solicitation by the other Party, becomes employed by such other Party within the time periods defined above, such other party agrees to pay the party at the time of such employment an amount equal to seventy-five percent (75%) of the employee’s or agent’s estimated income during the first year of employment. This paragraph does not pertain to unsolicited individuals that voluntarily approach a Party for employment or respond to general advertising.

12.4     Injunctive Relief.  Unless otherwise specified in this MSA, all rights, remedies and powers of a Party are irrevocable and cumulative, and not alternative or exclusive, and are in addition to all other rights, remedies and powers given under this MSA or any laws now existing or subsequently enacted.  Each Party acknowledges and agrees that if it breaches any obligations under this MSA or a Statement of Work related to a Party’s confidential information or IPR, the other Party may suffer immediate and irreparable harm for which monetary damages alone are not a sufficient remedy, and that, in addition to any other remedies the non-breaching Party may have, the non-breaching Party is entitled to seek injunctive relief, specific performance or any other form of relief in a court of competent jurisdiction, including, but not limited to, equitable relief, to remedy the breach or threatened breach by the breaching Party and to enforce this MSA and/or the applicable Statement of Work.  

12.5     Identification, Advertising & Publicity.  Customer agrees that it will not identify InterOperate as the provider of the Services to the media or any governmental, regulatory, or other official without prior notice to InterOperate and InterOperate’s prior consent, unless required by legal process, law, rule or regulation, in which case Customer shall still notify InterOperate of such requirement.  Except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this MSA or SOWs, nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent. Notwithstanding the foregoing, InterOperate may use Customer’s name and trademarks in a list of customers, or in connection with written sales or promotional materials.

12.6     Assignment.  This MSA and SOWs may not be assigned or transferred by a Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, InterOperate may freely assign this MSA and SOWs to an acquirer of all or part of InterOperate’s business or assets, whether by merger or acquisition. 

12.7     Integrated MSA.  This MSA, attached Exhibits and all executed SOWs constitute the complete integrated agreement between the Parties concerning the subject matter contained in this MSA.  All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this MSA are superseded and canceled in their entirety.  In the event of a conflict between the terms of this MSA, any Exhibits and Statement(s) of Work, the order of precedence (with the first being the controlling) is:  (i) this MSA (including its Exhibits) and (ii) the applicable Statement of Work.  Sections in this MSA may be expressly modified in an applicable Statement of Work; provided that, to be effective, the modification must specifically state that it amends and modifies the specific Sections in this MSA. 12.8     Waiver.  No waiver of any provision of this MSA may be deemed or constitute a waiver of any other provision of this MSA, whether or not similar, nor may the waiver constitute a continuing waiver unless otherwise expressly so provided in writing.  The failure of either Party to enforce at any time any of the provisions of this MSA, or the failure to require at any time performance by either Party of any of the provisions of this MSA, may in no way be construed to be a present or future waiver of provisions or in any way affect the ability of a Party to enforce each and every provision after such event.  

12.9     Severability.  If any provision of this MSA is adjudged by a court to be invalid, void or unenforceable, the Parties agree that the remaining provisions of this MSA will not be affected by such determination, that the provision in question must be replaced by the lawful provision that most nearly embodies the original intention of the Parties and that this MSA will in any event otherwise remain valid and enforceable.

12.10     Amendments.  No alteration, amendment, waiver, cancellation or any other change in any term or condition of this MSA is valid or binding on either Party unless mutually assented to in writing by authorized representatives of both Parties.  

12.11     Notices.  All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and deemed to have been duly given (i) when delivered by hand; (ii) one (1) day after delivery by receipted overnight delivery; or (iii) three (3) days after being mailed by certified or registered mail, return receipt requested, with postage prepaid to the Party at the address set forth above to the attention of the person executing this MSA, and with a copy to the attention of the legal department, or to any address as either Party furnishes to the other Party in writing pursuant to this Section.

12.12     Interpretation.  The Parties acknowledge that they have participated jointly in the negotiation and drafting of this MSA.  If an ambiguity or question of intent or interpretation arises, this MSA will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this MSA.  Unless the context requires otherwise, all words used in this MSA in the singular number extend to and include the plural, all words in the plural number extend to and include the singular, and all words in any gender extend to and include all genders. 

12.13     Captions and Headings.  The captions and headings used in this MSA are used for convenience only and are not to be given any legal effect.

12.14     Further Assurances.  Each Party agrees that it is required, from and after the date of this MSA, to execute and deliver other documents and take other actions as may be reasonably requested by the other Party to effect the transactions contemplated under this MSA.

12.15     Counterparts.  This MSA may be executed in counterparts or duplicate originals, all of which are regarded as one and the same instrument.  The Parties consent to use of facsimile, electronic and/or digital signatures in the execution of this MSA, and the same are binding upon the Parties as if they were an original signature.  Facsimile, electronic and digital copies of this MSA, including properly executed PDF versions of this MSA, are regarded as an original instrument by the Parties.

13.   Definitions. In this MSA, unless the context otherwise requires:

13.1     “MSA” means this MSA signed by the Parties together with any SOWs, which may be added to this MSA from time to time. 

13.2     “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. 

13.3     “GDPR” means Regulation (EU) 2016/679 (General Data Protection Regulation). 

13.4      “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. 

13.5     “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. 

13.6     “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. 

13.7     “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).