Master Services Agreement
MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is effective upon receipt of signed quote, receipt of purchase order (“Effective Date”), and is by and between CAMEYO, Inc. (the “Company”), a Delaware corporation, with its principal place of business at 5000 Centre Green Way, Suite 500, Cary, NC 27513, and the Company or Other Entity entering into an executed order hereunder (“Client”).
1. Services Provided
Company shall provide the Client non-exclusive access to the virtual application delivery platform and services pursuant to the terms and conditions set forth in this Agreement and any purchase order or other ordering document for the Services (“Order”):
1.1 Company agrees to provide technical support at no charge to the Client pursuant to Section 4 Support Services.
1.2 Company grants to Client a worldwide, non-exclusive, license for the Term to access and use the Services in connection with Client’s provision of services to its customers/end-users. Client shall use the Service solely for its business purposes in accordance with this Agreement.
2. Fees and Payment
2.1 As consideration for Company’s provision of the Services pursuant to this Agreement, Client agrees to pay fees for the Services set forth in the Order. Client shall pay all invoices within 30 days after Client receives the applicable invoice. Company’s invoice must identify the Service, the Client’s Order number (if applicable), and payment amount due.
2.2. Fees do not include any sales, use, excise, transaction, or other similar taxes. If such taxes are applicable, Company will separately state them on the invoice,
2.3 In no case will Company’s prices increase during the Initial Term or during each successive Renewal Term.
2.4 Unless otherwise specifically permitted in this Agreement, there is no additional charge to Client for Company to perform its obligations or for Client to exercise its rights under this Agreement.
3. Annual License Term
3.1 The initial term of this Agreement will begin on the Effective Date and will be in force for 12 months (“Initial Term”). This Agreement will automatically renew for additional 12-month increments (each, a “Renewal Term”) unless Client notifies Company of its intent to cancel no later than 30 days prior to the end of the Initial Term or the then-current Renewal Term. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
4. Support Services
4.1 During the Term, at the Company’s own expense, the Company shall provide the Client with the following support services (“Support”):
(a) Telephone or electronic support during the 7:00 a.m. to 6:00 p.m. EST in order to help the Client locate and correct problems with the Services and any software used by Company to provide the Services (“Software”), and
(b) Company’s internet-based support system shall be available seven days a week, twenty-four hours a day. The Company assesses priority and responds to support issues within 24 hours during the off-hour times.
(c) If the issue is deemed critical by Company, such as the Software or the Services have stopped actively transacting or are unavailable, then Company shall respond to phone and email requests within 30 minutes.
4.2 Support Requests. To ensure each issue is logged and tracked properly, please use one or both of the following methods of communication:
(a) Email: [email protected]
(b) Website: Fill out a support request form located at https://www.cameyo.com/contact-support/
Client acknowledges that failure to use the methods listed above may result in support resolution delays.
5. Confidentiality Obligations
5.1 Confidential Information. “Confidential Information” means information that is disclosed by a party (“Discloser”) to the other party (“Recipient”), or which Recipient has access to in connection with this Agreement, and that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself. Confidential Information may be disclosed in written or other tangible form or by oral, visual or other means. Confidential Information includes, without limitation, information of or relating to the Discloser’s present or future products, know-how, formulas, designs, processes, ideas, inventions and other technical, business and financial plans, processing information, pricing information, specifications, research and development information, customer lists, the identity of any customers or suppliers, forecasts and any other information relating to any work in process, future development, marketing plans, strategies, financial matters, personnel matters, investors or business operations of the Discloser, as well as the terms of this Agreement. All Client data and Client customer data is considered Client’s Confidential Information.
5.2 Protection of Confidential Information. Recipient shall not use any Confidential Information for any purpose not expressly permitted by the Agreement and shall disclose the Confidential Information to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient shall protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
5.3 Exceptions. Recipient’s obligations under Section 5.2 with respect to any Confidential Information shall terminate if such information: (a) was already known to Recipient at the time of disclosure; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to or use of Confidential Information. In addition, Recipient shall be allowed to disclose Confidential Information to the extent that such disclosure is: (i) approved in writing by Discloser; (ii) necessary for Recipient to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
5.4 Return of Confidential Information. Except as otherwise expressly provided in this Agreement, Recipient shall return to Discloser or destroy all Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of Discloser. Recipient shall certify in writing signed by an officer of Recipient that it has fully complied with its obligations under this Section 5.4.
6.1 If Client terminates an Order for cause, Company will cooperate to transition the Services to Client or to a third party chosen by Client, for a period not to exceed 180 days from the date of termination. Upon termination, for cause and at Client’s request, Company agrees to transfer the most recent Client data to Client or to a third party chosen by Client. The transfer shall be provided in a format acceptable to Client. The parties will amend the Order, specifying all details necessary to assure an orderly transition. During the transition period, Client will pay Company rates.
6.2 Section 5 shall survive termination of this Agreement for any reason.
7. Outage Credits
7.1 Service Outage is defined as the amount of time that the Services are unavailable or inoperable, not including planned maintenance or repair. Company shall provide a credit to Client for any Service Outage experienced by Client calculated as a percentage of the subscription fees paid during the period that the Service Outage occurred.
7.2 Unless otherwise notified by Company, planned maintenance and updates will occur weekly.
8. Representations and Warranties
8.1 Company’s Representations and Warranties: Company represents and warrants that:
(a) the Software and any materials used by Company in connection with the provision of the Services will not infringe on the intellectual property rights of any third party or any rights of publicity or privacy;
(b) the Software and Services will perform in accordance with the applicable documentation and this Agreement; and
(c) will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime.
8.2 Client’s Representations and Warranties: Client represents and warrants that it has the right to use the Client data as contemplated by this Agreement.
8.3 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.1 Claims Against Client.
(a) Company shall defend Client, at Company’s expense, against any claim, demand, suit, or proceeding brought against Client by a third party alleging that the Software or Services infringe or is a misappropriation of such third party’s Intellectual Property Rights (each, a “Client Claim”), and Company will indemnify and hold Client harmless from and against any damages, attorney’s fees and costs arising from or related to any such Client Claim, or for any amounts paid under a settlement of a Client Claim. Client shall: (i) notify Company promptly in writing of the Client Claim, (ii) not make any admission of liability, agreement or compromise in relation to any Client Claim without the prior written consent of Company (such consent not to be unreasonably conditioned, delayed or withheld) (iii) give Company sole control of the defense thereof and any related settlement negotiations, (iv) reasonably cooperate and, at Company’s request and expense, assist in such defense; and (v) wherever and whenever possible takes all reasonable steps to mitigate its losses that are the subject of the Client Claim.
(b) Injunction. If Client use of the Software or Services becomes, or in Company’s opinion is likely to become, the subject of an infringement claim, Company shall, at no cost to Client either: (i) procure for Client the right to continue using the Software and Services, (ii) replace or modify the Software and Services so that they are non-infringing and remain functionally equivalent; or (iii) if in Company’s reasonable opinion, neither option (i) or (ii) is commercially reasonable, Client may termination this Agreement on the date specified in Client’s written notice of termination and Company shall refund to Client all amounts paid by Client for Services not provided after termination.
9.2 Claims Against Company.
(a) Client shall defend Company, at Client’s expense, against any claim, demand, suit, or proceeding brought against Company by a third party that is based upon an allegation that Client doesn’t have the rights to the applicable Client data (each, a “Company Claim”), and Client will indemnify Company from any damages, attorney’s fees and costs finally awarded against Company as a result of, or for amounts paid by Company under a settlement approved by Client in writing of, a Company Claim provided that Company: (i) notifies Client promptly in writing of the Company Claim, (ii) does not make any admission of liability, agreement or compromise in relation to any Company Claim without the prior written consent of Client (such consent not to be unreasonably conditioned, delayed or withheld) (iii) gives Client sole control of the defense thereof and any related settlement negotiations, (iv) reasonably cooperates and, at Client’s request and expense, assisting in such defense; and (v) wherever and whenever possible takes all reasonable steps to mitigate its losses that are the subject of the Company Claim.
(b) Exclusions. Notwithstanding the foregoing, Client shall have no obligation under this Section or otherwise with respect to any claim to the extent based on any use of Client data by Company in violation of this Agreement.
10. Limitation of Liability
NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED FIVE TIMES THE FEES PAID TO COMPANY HEREUNDER. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 5 OR A PARTY’S OBLIGATIONS UNDER SECTION 8.
11. Access to Customer Data
As between the parties, Client is the sole owner of data. The Company will only access data and content stored in the Client’s environment when an authorized administrator from the Client grants Company explicit permission to do so.
12. Acceptable Use
12.1 Security Violations. You may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network computing device (collectively “System”). Prohibited activities include:
(a) Unauthorized Access – Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measure used by the System.
(b) Interception – Monitoring of data or traffic on a System without permission.
12.2 Illegal, Harmful, or Offensive Content. You may not use, or encourage, promote, facilitate or instruct others to use the Services, System, or Site for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Prohibited Activities include.
(a) Illegal Activities – Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.
(b) Harmful or Fraudulent Activities – Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions or otherwise engaging in deceptive practices.
(c) Infringing Content – Content that infringes or misappropriates the intellectual property or proprietary rights of other.
(d) Offensive Content – Content that is defamatory, obscene, abusive, excessively violent, incites violence, harassing, unfair or deceptive, creates a risk to someone’s health and safety, compromises national security, improperly exposes trade secrets or confidential information, promotes illegal drugs, violates export control laws, is invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
(e) Harmful Content – Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any System, program, or data, including viruses, Trojan horses, worms, time bombs, or cancel bots.
12.3 Copyrighted Materials. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf we will respond expeditiously to any claims of copyright infringement related to our services if such claims are properly reported.
12.4 Content. You are solely and exclusively responsible for any material you distribute, copy, create or otherwise make available through our Services or the System.
13.1 Compliance with Laws. Each party shall perform all of its obligations under this Agreement in compliance at all times with all foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection and applicable export and import control laws and regulations.
13.2 Choice of Law. This Agreement is to be governed by and construed in accordance with the laws of the State of Delaware without reference to any principles of conflicts of laws, which might cause the application of the laws of another state.
13.3 Remedies. Each party reserves all remedies available to it at law or equity for any disputes that arise under this Agreement. In the event of a suit or proceeding under this Agreement, each party agrees to pay all attorneys’ fees if the federal or state court renders judgment substantially in the prevailing party’s favor. Any actual or threatened breach of Section 5 will constitute immediate, irreparable harm to the other party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
13.4 Assignment. Neither party shall have the right to assign or transfer this Agreement or any of its rights under the Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed; except that a party may assign this Agreement, without consent, to any successor to all or substantially all its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement is binding upon and inures to the benefit of the parties, and to their permitted successors and assigns.
13.5 Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and delivered by one of the following methods: (a) personal delivery; (b) registered or certified mail, in each case, return receipt requested and postage prepaid; or (c) nationally recognized overnight courier specifying next day delivery and notification of receipt. Operational approvals and consents required under this Agreement may be delivered by e-mail. A notice meeting all requirements of this Section will be deemed effectively received: (i) upon personal delivery to the party to be notified; (ii) three (3) business days after having been sent by registered or certified mail; (iii) one business day after deposit with a nationally recognized overnight courier; or (iv) on the date on which such notice is delivered by e-mail transmission. A party shall deliver notices to the address, e-mail address number set forth on the applicable Order or to such other address, e-mail address or facsimile number as a party may designate by ten (10) days’ advance written notice to the other parties.
13.6 Waivers. No delay or failure of a party to exercise any of its rights, powers or remedies or to require satisfaction of a condition under this Agreement will impair any such right, power, remedy, or condition, nor will any delay or omission be construed to be a waiver of any breach, default or noncompliance under this Agreement. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of the same provision on any other occasion. To be effective, a waiver must be in writing signed by the party granting the waiver and will be effective only to the extent specifically set forth in such writing.
13.7 Severability. If a provision of this Agreement is unenforceable, invalid, or illegal, then the intent of the parties is that (a) the validity, legality, and enforceability of the remaining provisions of the Agreement are not affected or impacted in any way and the remainder of this Agreement is enforceable between the parties, and (b) the unenforceable, invalid, or illegal provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law.
13.8 Construction. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
13.9 Counterparts. The parties may execute the Agreement in several counterparts, each of which will constitute an original and all of which, when taken together, will constitute one agreement.
13.10 Entire Agreement. This Agreement, together with all exhibits, attachments, and Orders, constitutes the final agreement between the parties and is the complete and exclusive expression of the parties’ agreement to the matters contained in the Agreement. The Agreement supersedes and merges all prior and contemporaneous understandings, agreements or representations by or among the parties, written or oral, that may have related in any way to the subject matter hereof. This Agreement may be amended only by a written instrument signed by each of the parties. Client may issue a purchase order to Company to confirm the Order, and the terms of any such purchase order or similar document submitted by Client (whether additional or contradictory) shall apply to this Agreement.