Master Services Agreement

Master Services Agreement

1 DEFINITIONS; SAAS SERVICES

1.1 Definitions. Services” means the specific hosted Sevco services ordered by Customer pursuant to the Order Form, as such services may be modified, enhanced and/or updated from time to time. “Software” means the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services. “Order Form” means the Sevco Security, Inc. Order Form, or any other Sevco order form, which incorporates these Terms and Conditions. “Trial Access” means free, trial or evaluation access to the Services. “Customer Data” means non-public customer data provided to Sevco to enable the Services, and any data relating to the provision, use and performance of the Services.

1.2 Services. Subject to the terms of this Agreement, Sevco will use commercially reasonable efforts to provide Customer the Services, in accordance with: (a) the Service Level Agreement available at ; (b) the Security Protocols available at ; (c) the Support Agreement available at ; and (d) the Documentation available at

1.3 Restrictions. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the Software (except as allowed by and in compliance with applicable law); (b) use the Services or Software other than in connection with Customer’s internal business; (c) cause or permit others to access or use the Services or Software in order to build or support, and/or assist a third party in building or supporting, software or services competitive to Sevco; (d) without Sevco’s prior written consent, perform on the Services or Software network discovery, port and service identification, vulnerability scanning, remote access testing or penetration testing; (e) modify, translate or create derivative works based on the Services or Software (except to the extent expressly permitted by Sevco or authorized within the Services); (f) use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (g) remove any proprietary notices or labels from the Services or Software.

1.4 Trial Access. If Sevco has made available to Customer Trial Access, Customer may use such access solely to evaluate purchase of a subscription from Sevco.. The Trial Access is limited to thirty (30) days from the date Customer activates the Trial Access, unless otherwise specified by Sevco (the “Trial Period”). Notwithstanding any other provision of this Agreement, the Trial Access is provided “AS IS” without warranty or support of any kind, express or implied. Sevco may terminate Customer’s Trial Access at any time for any reason and without liability of any kind.

 

2 CONFIDENTIALITY; PROPRIETARY RIGHTS

2.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Sevco Proprietary Information includes non-public information regarding features, functionality and performance of the Services. Customer Proprietary Information includes Customer Data. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information; and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

2.2 Confidentiality Exceptions. The Disclosing Party agrees the foregoing shall not apply if the Receiving Party can document the information: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.

2.3 Customer Data. As between Customer and Sevco, Customer shall own all Customer Data. Customer hereby grants to Sevco, its affiliates and contractors a worldwide, limited license to host, copy, transmit and display Customer Data as reasonably necessary for Sevco to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Customer is solely responsible for the accuracy and content of all Customer Data, and Customer represents and warrants to Sevco that: (a) Customer has sufficient rights in the Customer Data to authorize Sevco to process, distribute and display the Customer Data as contemplated by this Agreement; (b) the Customer Data and its use hereunder will not violate or infringe the rights of any third party; and (c) Customer’s use of the Services and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions. In addition, during and following the Term, Sevco may use the Customer Data, on an aggregated and de-identified basis only, for any Sevco business purpose, including without limitation improving and enhancing the Services and marketing and promoting the Services.

2.4. Sevco Proprietary Rights. Sevco shall own and retain all right, title and interest in and to: (a) the Services and Software, and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with support; and (c) all intellectual property rights related to any of the foregoing. Customer hereby grants Sevco and its affiliates a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its users relating to the Services.

2.5 Use of Customer Name and Logo. Sevco may use Customer’s name and logo to identify Customer as a Sevco customer of the Services, including without limitation on Sevco’s website. Sevco agrees that any such use shall be subject to Sevco complying with any written guidelines that Customer may deliver to Sevco regarding the use of its name and logo and shall not be deemed Customer’s endorsement of the Services.

 

3 FEES

3.1 Payment Terms. Customer will pay Sevco the fees set forth in the Order Form for the Services (the “Fees”). Unless otherwise expressly set forth on the Order Form, all Fees will be billed as follows:

      1. for monthly subscriptions, all Fees will be invoiced monthly in arrears; and
      2. for annual subscriptions, all Fees will be invoiced in advance, on the Start Date as set forth on the Order Form or, if no Start Date is specified, on the Effective Date of the Order Form.

Unless otherwise expressly set forth on the Order Form, payment of all invoices shall be due within thirty (30) days of the date of invoice. If Customer’s use of the Services exceeds the number of devices or other service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. If Customer believes that Sevco has billed Customer incorrectly, Customer must contact Sevco no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Sevco’s customer support department.

    1. Fee Changes. Sevco reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to Customer (which may be sent by email). Such changes will take effect: (a) for monthly subscriptions, beginning on the first day following such thirty (30) day notice period; and (b) for annual subscriptions, beginning on the next renewal term.
    2. Late Payments. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services.
    3. Taxes. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Sevco’s net income.

 

4 TERM AND TERMINATION

4.1 Term. Subject to earlier termination as provided below, this Agreement commences on the Effective Date of the first Order Form between Sevco and Customer and continues until otherwise terminated, by written agreement of the parties, in accordance with Section 4.2 or 4.3 hereof, or upon the expiration of the last subscription term or renewal thereof of all Order Forms (the “Term”).

4.2 Renewals. For monthly subscriptions, unless otherwise expressly set forth in the Order Form, the Term shall automatically renew on a monthly basis until either party terminates with at least thirty (30) days’ written notice prior to the end of the month in which such termination is to be effective. For annual subscriptions, unless otherwise expressly set forth in the Order Form, the Term shall automatically renew for additional periods of the same duration as the Initial Service Term unless either party terminates the Agreement with written notice at least thirty (30) days’ prior to the end of the then-current Initial Service Term or renewal term.

4.3 Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided, and if Customer terminates this Agreement pursuant to this Section 4.2, then Sevco will refund Customer any prepaid Fees applicable to periods following the termination date. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

4.4 Data Destruction and Transition Assistance. Upon any termination, all Customer Data will be available, in a standard format, for electronic retrieval for a period of thirty (30) days. If requested in writing prior to the end of the Term, Customer may receive Sevco’s assistance exporting Customer Data in alternative formats. Customer agrees to reimburse Sevco for any non-trivial engineering services at commercially reasonable hourly rates.

 

5 CUSTOMER REPRESENATIONS; WARRANTY AND DISCLAIMER

5.1 Customer Representations. Customer represents, covenants and warrants that Customer will use the Services only in compliance with Sevco’s standard published policies then in effect, the Documentation, and all applicable laws and regulations. Customer shall be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

5.2 Warranty. Sevco warrants that the Services will substantially conform to the Documentation. This warranty does not apply if the Services have been altered, except by Sevco or its authorized representative. As Customer’s sole and exclusive remedy for the Services to fail to meet this warranty, Sevco will use commercially reasonable efforts to repair or replace the affected Services. If the foregoing remedies are not commercially practicable, Sevco may, in its sole discretion, terminate the applicable Order Form upon providing Customer with written notice thereof, and, as Customer’s sole and exclusive remedy, refund to Customer any Fees prepaid by Customer with respect to the expired portion of the current Initial Service Term or then current renewal term, as applicable, for the non- conforming Services. Sevco shall use commercially reasonable efforts to minimize errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Sevco or by third-party providers, or because of other causes beyond Sevco’s reasonable control, but Sevco shall provide advance notice in writing or by e-mail of any scheduled service disruption.

5.3 DISCLAIMER. SEVCO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SEVCO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.

 

6 INDEMNITY

6.1 Sevco Indemnification Obligations. Sevco hereby agrees to indemnify and hold harmless Customer against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Sevco is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Sevco will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services: (a) not supplied by Sevco; (b) combined with other products, processes or materials where the alleged infringement relates to such combination; (c) where Customer continues allegedly infringing activity after being notified thereof; or (d) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Sevco to be infringing, Sevco may, at its option and expense: (x) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (y) obtain for Customer a license to continue using the Services; or (z) terminate this Agreement.

6.2 Customer Indemnification Obligations. Customer hereby agrees to indemnify and hold harmless Sevco against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from a violation or alleged violation of its representations, warranties or obligations under this Agreement or otherwise from Customer’s use of Services. Although Sevco has no obligation to monitor Customer’s use of the Services, Sevco may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement

6.3 LIMITATION OF LIABILITY

    1. LIABILITY EXCEPTIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SEVCO AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (B) FOR ANY MATTER BEYOND SEVCO’S REASONABLE CONTROL;
    2. MAXIMUM LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR SEVCO’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 HEREOF OR FOR A BREACH BY SEVCO OF ITS CONFIDENTIALTIY OBLIGATIONS SET FORTH IN SECTION 2 HEREOF, SEVCO AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (B) FOR ANY CLAIM EXCEEDING THE FEES PAID BY CUSTOMER TO SEVCO FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE MONTH IN WHICH THE CLAIM OCCURRED.
    3. MISCELLANEOUS If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Sevco’s prior written consent. Sevco may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Sevco in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e- mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws provisions.