Last Updated: July 12th, 2024
Master Services Agreement
This Master Services Agreement (the “MSA”) is entered into on the Effective Date (as defined herein) by and between Foresight Software Inc., a Delaware for-profit corporation having a principal office located at 500 Harpeth Trace Drive, Nashville, Tennessee 37221, U.S.A. (“FSI”), and “Client”. FSI and Client may be referred to in the singular as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, FSI is engaged in the business of, among other things, creating, developing, authoring, implementing, and providing business-to-business software solutions and services for various organizations and their salesforces, for the purpose of, among other things, assisting and supporting these organizations in identifying pain points in their current or prospective customer’s business, educating current or prospective customers on their business needs, and synthesizing learnings from the pain points and needs of the current or prospective customer and its business (collectively, “FSI’s Services”);
WHEREAS, to facilitate, provide, and deliver the FSI Services, FSI has created, developed, and authored a software-as-a-service platform entitled Foresight™ (the “FSI Platform”), featuring a number of tools therein, including but not limited to Value Map™, Value Assessment™, and Value Intelligence™ (each, a “Platform Tool”) (collectively, the “FSI Platform” and the “Platform Tools” shall be referred to as the “FSI Properties”);
WHEREAS, Client is engaged in the business of, among other things, software development and licensing software solutions to its customer base (collectively, the “Client’s Services”).
WHEREAS, for the purpose of assisting, facilitating, and/or supporting the Client’s Services, Client desires to retain FSI to perform software services, such services described in this MSA and/or in separately executed Schedules, Exhibits, and/or Addenda, each of the terms and conditions set forth in this MSA.
NOW, THEREFORE, in consideration of the mutual covenants and terms hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
TERMS AND CONDITIONS
- Definitions.
- Authorized User. “Authorized User” means an end user that accesses and/or uses the FSI Properties, the end user being authorized to access and/or use the FSI Properties vis-à-vis the Client’s permission to authorize such pursuant to this MSA. For the avoidance of doubt, an “Authorized User” may only be a director, officer, employee, independent contractor or agent of the Client.
- Contact. “Contact” means any Person who is a current customer of Client, or who has been identified, selected, or targeted by Client as a prospective customer of Client.
- Affiliate. “Affiliate” means any Person (as defined herein), other than the Parties, that directly or indirectly controls, is controlled by, or is under common control with a Party.
- Confidential Information. “Confidential Information” means any information that is treated as confidential by a Party, the Party’s Affiliates, and/or the Party’s or its Affiliates’ Representatives (as defined herein), in oral, written, electronic, or other form or media, whether or not such information is marked, designated, or otherwise identified as “confidential,” and includes any information that, due to the nature of its subject matter or circumstances surrounding its disclosure, would reasonably be understood to be non-public, confidential, or proprietary, including (without limitation): (i) all business plans, product plans, computer software, source code, object code, technical and non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, blueprints, designs, design plans, future designs, future design plans, processes, financial data, financial plans, product plans, or lists of actual or potential customers, manufacturers, or suppliers; (ii) notes, materials, applications, drafts, or documents pertaining to Intellectual Property protections not otherwise available to the public; (iii) reports, analyses, notes, or other information prepared by the Party, the Party’s Affiliates, and/or the Party’s or its Affiliates’ Representatives (as defined herein) that are based on, contain, or reflect any Confidential Information; (iv) Personally Identifiable Information (as defined herein); and (v) all other products, services, or operations, whether considered non-public, confidential, or proprietary, including, but not limited to, trade secrets.
- Deliverable. “Deliverable” means all content, services, and deliverables that FSI is required to provide and deliver to Client under this MSA, as set forth in this MSA and all Schedules, Exhibits, and Addenda attached hereto. “Deliverable” further means and includes, but is not limited to, the “Implementation Services,” as set forth in Schedule A, and the “Subscription,” as set forth in Schedule A.
- Deliverable Schedule. “Deliverable Schedule” means the timetables, deadlines, and schedules provided for in the Schedules, Exhibits, and Addenda attached hereto.
- Effective Date. “Effective Date” means the final date signed and executed by duly authorized Representatives (as defined herein) of the Parties.
- Implementation Services. “Implementation Services” means certain implementation services included with the Deliverable Schedule set forth in Exhibit 1 to this Schedule A.
- Intellectual Property. “Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) trademarks, service marks, marks, signs, symbols, logos, insignia, and trade dress, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing; (ii) copyrightable (and non-copyrightable) works of authorship and copyrights, including all applications and registrations related to the foregoing; (iii) trade secrets and confidential know-how; (iv) patentable (and non-patentable) inventions, patents, patent applications, and continuations, continuations-in-part, and divisional applications related thereto (and the continuations, continuations-in-part, and divisional applications to the foregoing); (v) websites and internet domain-name registrations; (vi) other intellectual property and related proprietary rights, interests, and protections; and (vii) all modifications, updates, enhancements, augmentations, improvements, customizations, changes, edits, alterations, or derivative works of the foregoing.
- Person. “Person” means any individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
- Personally Identifiable Information. “Personally Identifiable Information” or “PII” means any information that can be used to distinguish or trace an individual or an individual’s identity, either alone or when combined with other personal or identifying information, that is linked or linkable to a specific individual.
- Process. “Process” or “Processing” means any operation or set of operations that is performed on PII or on sets of PII, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, transfer, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
- Representative. “Representative” means a Party’s or its Affiliates’ director, officer, supervisor, agent, employee, consultant, and/or legal, technical, and business advisor.
- FSI Intellectual Property. “FSI Intellectual Property” means all Intellectual Property owned by, or under the control of, FSI necessary for use or performance of FSI Properties or FSI Services, which includes: (i) Intellectual Property that was made, invented, authored, developed, created, conceived, filed before the Effective Date, or reduced to practice by FSI; (ii) Intellectual Property that was made, invented, authored, developed, created, conceived, or reduced to practice by FSI apart from FSI’s performance of its duties and obligations under this MSA, and the Schedules, Exhibits, and Addenda attached hereto; (iii) Intellectual Property in, constituting, underlying, embodying, embracing, pertaining to, related to, or applicable to the FSI Properties; or (iv) Intellectual Property in, constituting, underlying, embodying, embracing, pertaining to, related to, or applicable to the Work Product (as defined herein).
- Client Intellectual Property. “Client Intellectual Property” means all Intellectual Property owned by Client, which includes: (i) Intellectual Property that was made, invented, authored, developed, created, conceived, filed before the Effective Date, or reduced to practice by Client; (ii) Intellectual Property that was made, invented, authored, developed, created, conceived, reduced to practice by Client separate from Client’s use of FSI Properties or apart from Client’s performance of its duties and obligations under this MSA, and the Schedules, Exhibits, and Addenda attached hereto, (iii) all User-Generated Content and (iv) all Client Data.
- Work Product. “Work Product” means all documents, files, results, things, and materials made, invented, developed, designed, constructed, advanced, fashioned, conceived, reduced to practice, or otherwise created by FSI as a result of this MSA, and the Schedules, Exhibits, and Addenda attached hereto. “Work Product” further means and includes, but is not limited to, the Deliverables. “Work Product” does not include User-Generated Content, Client Data or other Client Intellectual Property or any materials containing Client’s Confidential Information.
- Third-Party Materials. “Third-Party Materials” mean materials and information, in any form or medium, including any software (including, without limitation, open-source software, such as software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, Berkeley Source Distribution (BSD) licenses, or any other license that is approved by the Open Source Initiative), documents, data, content, specifications, products, equipment, or components of or relating to the FSI Properties that are not proprietary to FSI.
- Territory. “Territory” means global.
- Updates. “Updates” mean any updates, bug fixes, patches, maintenance releases, error corrections, enhancements, improvements or other changes to the user interface (UI), user experience (UX), functionality, compatibility, capabilities, performance, efficiency or quality of the FSI Properties.
- User-Generated Content. “User-Generated Content” means any output, in any form or medium, generated by the use of FSI Properties.
- Client Data. “Client Data” means any information, content, materials, names, logos, reports, and data provided or made available by Client or that is collected by FSI in connection with use of the FSI Properties by Client, including information pertaining to its Contacts. For the avoidance of doubt, Client Data includes Solution Data, Opportunity Data and all information, data, files, links, and other materials submitted to the FSI Properties by or on behalf of Client or its Contacts, that FSI receives through the FSI Platform or that is accessed, processed or collected by FSI on behalf of Client in connection with providing the FSI Platform, including any Personally Identifiable Information.
- Engagement; Services
- Engagement; Software Solutions. Pursuant to the terms and conditions of this MSA, Client engages FSI, and FSI accepts such engagement, to furnish, advance, implement, and/or provide software and services, including the FSI Properties and FSI Services, to facilitate, assist, or support the Client’s Services, such software and services described in separately executed Schedules, Exhibits, and Addenda (collectively, the “Software Solutions”). During the Term (as defined herein), FSI shall provide and deliver to the Client the Software Solutions. The specifications, features, components, elements, and other aspects of the Software Solutions, and the Deliverables related thereto, shall be set forth in the Schedules, Exhibits, and Addenda attached hereto.
- Subcontractors. FSI, in its sole and absolute discretion, and from time to time, may engage third-party Persons to perform, facilitate, furnish, or support the Software Solutions set forth in this MSA and all Schedules, Exhibits, and Addenda attached hereto. FSI shall ensure that all such third-party Persons comply with this Agreement and shall be fully responsible for all of the acts and omissions of such third-party Persons and for the payment of their compensation.
- Delivery of Deliverables; Failure or Delay. FSI shall deliver to the Client each Deliverable on or prior to the date established in the Deliverable Schedule, as set forth in the Schedules, Exhibits, and Addenda attached hereto. During the Term (as defined herein), FSI will use commercially reasonable efforts to meet all deadlines, milestones, or dates set forth in an applicable Schedule, Exhibit, or Addendum; provided, however, Client acknowledges and agrees that all such deadlines, milestones, and dates are estimates only and FSI shall have no liability to Client for any failure to meet such deadlines, milestones, or dates. FSI is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by the Client’s delay in performing, or failure to perform, any of its obligations under this MSA.
- Changes. Either Party may, at any time during the Term (as defined herein), request, in writing, changes to the Software Solutions described, specified, or outlined in an applicable Schedule, Exhibit, or Addendum (each, a “Change Request”). The Parties shall evaluate each Change Request in good faith and, if agreed, implement such changes in accordance with the Change Request. No changes will be effective unless and until memorialized in a written agreement signed by duly authorized Representatives of both Parties.
- Payment Terms
- Invoices. In consideration of the commitments and obligations hereunder, within thirty (30) days of receiving any invoice from FSI, the Client shall tender payment to FSI for all properly billed and undisputed amounts according to the prices and billing conditions set forth in the Schedules, Exhibits, and Addenda attached hereto.
- Method of Payment; Taxes. The Client shall make all payments hereunder in United States (US) dollars by Bank Transfer or Credit Card. All fees and other amounts payable by Client under this MSA are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder excluding taxes on FSI’s income, property and personnel.
- Untimely Payment. In the event of an undisputed payment being more than sixty (60) days overdue, FSI shall be entitled to a late payment surcharge equivalent to five percent (5%) of the overdue payment accruing on a monthly basis. If such failure continues for ninety (90) days following written notice thereof, FSI may disable, withhold, suspend, or revoke any licenses or access granted under the Schedules, Exhibits, and/or Addenda, or FSI may withhold or cease performance of the Software Solutions, until all past due amounts and interest thereon have been paid to FSI.
- Books, Accounts, and Records. Each Party will maintain complete and accurate books, accounts, and records concerning the pricing and billing conditions set forth in the Schedules, Exhibits, and Addenda attached hereto.
- Intellectual Property Rights
- Intellectual Property of the FSI Properties. Unless specified otherwise in a Schedule, Exhibit, or Addendum, all Work Product arising out of, or derived from, the Software Solutions, or otherwise developed, designed, furnished, advanced, invented, authored, or otherwise created in performance of the MSA and the Schedules, Exhibits, and Addenda, are and shall be the sole and exclusive property of FSI, and FSI shall be deemed the owner of all Work Product. Unless specified otherwise in a Schedule, Exhibit, or Addendum, and for the avoidance of doubt, Client hereby irrevocably assigns all right, title, and interest in the Work Product to FSI, including any and all Intellectual Property in, constituting, underlying, embracing, embodying, relating to, or applicable to the Work Product.
- Client Obligations. Where necessary, Client shall execute and deliver to FSI such further instruments and documents, as FSI may request, for the purpose of establishing, evidencing, registering, perfecting, and enforcing or defending FSI’s ownership and perfection of all right, title, and interest in and to Work Product. Client agrees to reasonably cooperate with FSI, at FSI’s reasonable expense, in establishing, evidencing, registering, perfecting, and enforcing or defending FSI’s ownership and perfection of all right, title, and interest in and to the Work Product. Client irrevocably waives any and all claims Client may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Work Product.
- Reservation of Rights. All right, title, and interest in and to the FSI Intellectual Property, the FSI Properties, and the Work Product shall remain solely with, and inure to the sole and exclusive benefit of, FSI. All rights not expressly granted to Client in the FSI Intellectual Property, the FSI Properties, and the Work Product are reserved by and for FSI. All right, title, and interest in and to the Client Intellectual Property shall remain with the Client. All rights not expressly granted to FSI in the Client Intellectual Property are reserved by and for Client.
- Data Categories and Data Rights
- Definitions of Data Categories. Any and all data, data points, or data sets touching or affected by the FSI Properties or this MSA, as well as any Schedule, Exhibit, or Addendum attached hereto, are defined as follows:
- “Public Domain Data” shall include any and all data that is generally available to the public and not proprietary or confidential. For the avoidance of doubt, “Public Domain Data” may include data for any Contact, such as job titles and locations of the Contact, as well as the metadata directed to the foregoing (to the extent the Contact is an individual), and “Public Domain Data” may further include data for any company type, investment scale, or location of the company, as well as the metadata directed to the foregoing (to the extent the Contact is an entity).
- “Industry Data” or “Market Data” shall include any and all data that is generally available to the public regarding a Contact and its industry, trade, practices, past and current operations, sales patterns and forecasting, or other publicly known efforts related to the foregoing. For the avoidance of doubt, “Industry Data” does not include any unique or specific information directed to the Contacts engaged or sought to be engaged by and through the use of the Client’s Confidential Information.
- “Solution Data” or “Technology/Offering Data” shall include any and all data documenting, collecting, or organizing specific solutions, solution areas, capabilities, products, or services for the Client’s Contact, as well as why and in what manner the solutions, solution areas, capabilities, products, or services are advantageous for the Client’s Contact.“
- Opportunity Data” or “Prospect Data” shall include any and all information on Contacts the Client is engaging, or seeking to engage, including the name, company name or type, commercial opportunity, or relevant business need that may be provided to FSI by Client by manual means of transfer or through integration with a customer relationship management (CRM) technology.
- Data Rights. Unless otherwise stated in this MSA or any applicable Schedule, Exhibit, or Addendum, Client shall own all right, title, and interest in and to the Solution Data and the Opportunity Data. During the Term (as defined herein) of this MSA, Client irrevocably grants to FSI a non-exclusive, paid-up, non-transferable, and sublicensable license to use the Solution Data and Opportunity Data solely in connection with providing the FSI Properties to Client. Both Parties shall have unfettered and restricted access to and use of Public Domain Data and Market Data.
- Data Comprising PII. In facilitating, delivering, or providing the Software Solutions, or by and through the Client’s and its Authorized User’s use of or access to the FSI Properties, FSI may collect, receive, store, or otherwise Process Personally Identifiable Information. In accordance with Section 8 of this Agreement, FSI shall treat such uncombined, non-anonymized, and non-aggregated PII as “Confidential Information.” In the event of a Security Breach (as defined below), FSI will notify Client immediately. Such notice will describe the breach, the status of FSI’s investigation, and, if applicable, the potential number of persons affected. In addition, such notice shall include a detailed description of the incident, the type of Client Data that was the subject of the Security Breach, and any other information that Client may reasonably request concerning the Security Breach. FSI will not communicate with any third party regarding any Security Breach except as (a) required by applicable law (with prompt written notice to Client); or (b) specified by Client. FSI agrees to act promptly, at its own expense to investigate the incident and to identify, prevent and mitigate the effects of any such Security Breach, and to carry out any recovery necessary, in its reasonable judgement, to remedy the impact, including providing notification to all individuals affected by such Security Breach. For the purposes of this sub-section, the term “Security Breach” means a potential or confirmed exposure that could lead to unauthorized or inappropriate collection, use, access, disclosure or modification of any data that is provided (either directly or indirectly) by or through a user of the FSI Properties. In the event of a Security Breach FSI will reasonably cooperate with Client so that Client may determine its legal obligations with respect to notifying its impacted individuals, regulators, and/or law enforcement, if any. FSI shall provide Client any documentation reasonably necessary to make such communication(s). In the event of a suspected Security Breach or a Security Breach, Client shall have the right to (a) demand immediate return of all Client Data; (b) recover actual damages incurred by reason of such event, including, without limitation, the costs of notification to and credit monitoring for impacted and potentially impacted individuals (which notification and credit monitoring shall be done within Client’s sole discretion) and its attorneys’ fees and costs and pursue any other remedy available hereunder or at law or in equity.
- Definitions of Data Categories. Any and all data, data points, or data sets touching or affected by the FSI Properties or this MSA, as well as any Schedule, Exhibit, or Addendum attached hereto, are defined as follows:
- Information Security & Data Privacy
- Information Security. The Parties have implemented, and will continue to implement, industry-standard measures to maintain information-security and data-privacy protocols, so as to protect against and prevent any security breach of, or any unauthorized access, disclosure, or misuse of, any Confidential Information and PII in connection with the Software Solutions, as set forth in this MSA and any Schedule, Exhibit, or Addendum attached hereto (the “Information Security Protocol”).
- Data-Privacy Compliance. The Parties, the Parties’ Affiliates, and their Affiliates and Representatives, together with any third-party Persons the Parties may engage in connection with the Software Solutions activities under this MSA and the Schedules, Exhibits, and Addenda attached hereto, have complied, and are presently in compliance, with their privacy and security policies and with all obligations under applicable laws and regulations regarding Processing of PII or any other legally protected information collected from or provided by third-party Persons.
- Term, Expiration, and Termination
- Term. The initial term of this MSA commences on the Effective Date and will continue for a period of twelve (12) months (the “Term”). The Term is subject to earlier termination otherwise provided for by this Agreement (“Termination”). Upon expiration of the Term, this MSA will not automatically renew and may only be renewed upon the mutual written agreement of both parties.
- Termination as a Matter of Course. Either Party may terminate this MSA if the other Party: (i) becomes insolvent or is generally unable to pay, defaults on, or fails to pay, its debts as they become due; (ii) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other such relief with respect to it or its debts; (iii) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; (iv) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; or (v) makes or seeks to make a general assignment for the benefit of its creditors.
- Termination for Breach. Either Party may terminate the Agreement with written notice to the other Party for a material or persistent breach by the breaching Party of any term of this Agreement, and either the material or persistent breach cannot be cured or, if the material or persistent breach can be cured, it is not cured by within thirty (30) days of the breaching Party receiving written notice of such material or persistent breach from the non-breaching Party. If FSI terminates under this section, Client shall pay, within sixty (60) days after its receipt of an invoice for the final billing, the amount through the date of the uncured breach event. If Client terminates under this section, FSI shall promptly refund to Client the prepaid, unused portion of any fees paid in advance.
- Effect of Termination or Expiration. Upon Expiration or Termination, and unless stated otherwise in this MSA or the Schedules, Exhibits, or Addenda attached hereto, all rights, interests, and licenses granted under this MSA and the Schedules, Exhibits, or Addenda attached hereto shall cease, and Client shall have no further right or interest in and to the Work Product or the FSI Properties and no further obligation under this MSA or any current Order Form. Client shall certify to FSI upon request, in a written instrument, that it has complied with the foregoing. Upon Expiration or Termination, and unless stated otherwise in this MSA or the Schedules, Exhibits, or Addenda attached hereto, all rights, interests, and licenses granted under this MSA and the Schedules, Exhibits, or Addenda attached hereto shall cease, and FSI shall have no further right or interest in and to the Client Intellectual Property. FSI shall certify to Client upon request, in a written instrument, that it has complied with the foregoing.
- Survival. The rights and obligations of the Parties set forth in Sections 4, 7D, this 7E, 8, 10B, 11 and 12, and any right or obligation of the Parties in this MSA, and any Schedule, Exhibit, or Addenda attached hereto, which, by its express terms or nature and context, is intended to survive Termination or Expiration of this MSA, will survive any such Termination or Expiration.
- Confidentiality
- Recognition of Confidentiality. Each Party (in its capacity as a “Receiving Party”) acknowledges that in connection with this MSA and any Schedule, Exhibit, or Addendum, it will gain access to Confidential Information of the other Party (in its capacity as a “Disclosing Party”).
- Exclusions from Confidential Information. To the extent either Party can demonstrate by competent written proof, “Confidential Information” does not include information that: (i) is now, or hereafter becomes, through no act or failure to act on the part of either Party, generally known or available; (ii) is known to the Receiving Party prior to disclosure hereto, as evidenced by the Receiving Party’s records; (iii) is hereafter furnished to the Receiving Party by a third-party Person, as a matter of right (i.e., absent direct or indirect solicitation and/or circumvention in breach of this MSA) and without any restriction on disclosure or (iv) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
- Non-Use; Non-Disclosure. The Receiving Party shall not: (i) use the Disclosing Party’s Confidential Information other than as necessary to perform its obligations under the MSA or any applicable Schedule, Exhibit, or Addendum; (ii) reverse engineer, disassemble, decompile, deconstruct, manipulate, exploit, circumvent, copy, or otherwise use, by any means (or attempt the foregoing) the Disclosing Party’s Confidential Information, unless otherwise authorized in a Schedule, Exhibit, or Addendum. The Receiving Party shall hold in confidence all Confidential Information disclosed by the Disclosing Party. A Receiving Party may only use the Confidential Information according to the terms of this MSA and may not disclose the Confidential Information, except as authorized by the Disclosing Party in writing, to anyone other than their adequately trained Representatives on a “need to know” basis. In protecting the Confidential Information, the Receiving Party shall exercise at least the same degree of care as it uses with its own Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify, in writing, the Disclosing Party upon discovery of any unauthorized disclosure of Confidential Information, or use of Confidential Information other than in pursuance of the purpose of the disclosure. Each Party will cooperate with the other in every reasonable way to help the Disclosing Party regain possession of its Confidential Information and prevent further unauthorized uses or disclosures of the Confidential Information.
- Compelled Disclosure. If the Receiving Party is required by law or ordered by a court or governmental agency of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall promptly notify, in writing, the Disclosing Party. Both Parties shall seek to restrain such disclosure and to obtain a protective order or other appropriate relief from the court or agency. If a protective order or other relief is not obtained, the Receiving Party may disclose only that portion of the Confidential Information that is legally required and minimally necessary.
- Duration of Confidentiality. A Receiving Party’s duty to protect and prevent the disclosure of Confidential Information shall cease only after the Disclosing Party provides written notice to the Receiving Party that the Confidential Information, or a particular portion of the Confidential Information identified by the Disclosing Party, is no longer considered Confidential Information. With respect to Confidential Information that constitutes any other form of confidential Intellectual Property rights, including trade secrets, the rights and obligations set forth in this section shall survive such Termination or Expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Receiving Party or its Representatives.
- Return or Destruction of Confidential Information. Upon request from the Disclosing Party, or in the event of Termination or Expiration, the Receiving Party shall return the Confidential information specified in the request, and any copies thereof, to the Disclosing Party within thirty (30) days of the date of the request, or the date of Termination or Expiration, whichever is earlier. In the event it is commercially impracticable or impossible to return the Confidential Information, the Receiving Party shall destroy and certify the destruction of the Confidential Information, and any copies thereof, within thirty (30) days of the date of the request, or date of Termination or Expiration, whichever is earlier.
- Representations & Warranties
- Mutual Representations and Warranties. Each Party represents and warrants to the other Party the following: (i) it is duly organized, validly existing, and in good standing as a business association, or other entity, as represented under the law of its jurisdiction; (ii) it has the full right, power, and authority to enter into this MSA and to perform its obligations hereunder; (iii) the execution of this MSA by its Representatives, whose signatures are set forth at the end hereof, has been duly authorized by all necessary actions of such Party; (iv) when executed and delivered by the Parties, this MSA will constitute the legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms; and (v) it is not a party to any restrictive covenant, agreement, or contract with any third-party Person that limits the performance of its duties and responsibilities under this MSA or under which such performance would constitute a breach or violation of the terms and conditions of such covenant, agreement, or contract.
- Client’s Representations and Warranties. Client represents and warrants to FSI the following: (i) Client is the valid owner of the rights, title, and interest in and to the Client Intellectual Property, and thereby has the right and authority to grant rights, licenses, and authorizations under the terms and conditions of this MSA or applicable Schedule, Exhibit, or Addendum; (ii) Client will not knowingly engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of FSI or FSI’s Services, or cause confusion as to the ownership of the FSI Intellectual Property, the FSI Properties, and the Work Product; and (iii) the Client Intellectual Property does not infringe, misappropriate, or violates the Intellectual Property rights, data-privacy rights, privacy rights, or other legal rights of any third-party Person.
- FSI’s Representations and Warranties: FSI represents and warrants to the Client the following: (i) FSI is the valid owner of the rights, title, and interest in and to the FSI Intellectual Property and the FSI Properties, and thereby has the right and authority to grant rights, licenses, and/or authorizations under the terms and conditions of this MSA or applicable Schedule, Exhibit, or Addendum; (ii) FSI will not knowingly engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of the Client or the Client’s Services, or cause confusion as to the ownership of the Client Intellectual Property and (iii) the FSI Intellectual Property and the FSI Properties will not contain or introduce into any Client Systems any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code.
- Product Warranty:FSI warrants that: (i) it will provide the FSI Services in a manner consistent with generally accepted industry standards, (ii) the FSI Services will perform substantially as described in the applicable Documentation when used in the hardware, software, and browser operating environment described therein and supported by FSI, and (iii) the configuration of the FSI Services will conform in all material respects to this Agreement and/or the applicable Order Form. In the event of breach of (i)-(iii) above, Client’s sole and exclusive remedies are those described in the section titled “Term, Expiration and Termination.” Notwithstanding the foregoing, FSI is not obligated to correct errors caused by: (a) unauthorized modification to the FSI Services by Client, (b) Client modifications, (c) use of the FSI Services other than as described in the Documentation, (d) non-FSI software provided by Client, or (e) Client combining the FSI Services with any other hardware or software not approved or recommended any FSI.
- Professional Services Warranty. FSI warrants that any Professional Services performed under an Order Form to this Agreement will be performed in a professional and workmanlike manner by appropriately qualified personnel. FSI’s only obligation, and Client’s only remedy, for a breach of this warranty will be, at FSI’s option and expense, to either: (i) promptly re-perform any Professional Services that fail to meet this warranty, or (ii) terminate the Order Form and refund any unused prepaid Fees for the FSI Services and all fees paid for the defective Professional Services.
- Disclaimer; Limitation of Liability; Equitable Relief
- Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED FOR UNDER THIS MSA, THE FSI PROPERTIES AND WORK PRODUCT ARE PROVIDED “AS IS” AND FSI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND FSI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, FSI MAKES NO WARRANTY OF ANY KIND THAT THE FSI PROPERTIES, DELIVERABLES, OR WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN FSI AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
- Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED FOR UNDER THIS MSA, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLIENT, FSI, THEIR RESPECTIVE AFFILIATES, OR ANY OF CLIENT’S FSI’S OR THEIR AFFILIATES’ REPRESENTATIVES, BE LIABLE UNDER THIS MSA TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS, OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH THIS MSA, OR ANY SCHEDULE, EXHIBIT, OR ADDENDUM ATTACHED HERETO, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. UNDER NO CIRCUMSTANCE WILL CLIENT’S OR FSI’S CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES ARISING OUT OF OR RELATING TO THIS MSA, OR ANY SCHEDULE, EXHIBIT, OR ADDENDUM ATTACHED HERETO, EXCEED THE TOTAL FEES OR AMOUNTS PAID AND PAYABLE TO FSI BY CLIENT UNDER THIS MSA (OR ANY SCHEDULE, EXHIBIT, OR ADDENDUM ATTACHED HERETO) FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE LIABILITY OCCURRED (THE “CAP”). THE FOREGOING LIMITATIONS WILL NOT APPLY TO A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A PARTY’S BREACH OF SECTION 8, FSI’S INDEMNIFICATION OBLIGATIONS IN SECTION 11 AND FSI’S LIABILITY WITH RESPECT TO A SECURITY BREACH. INSTEAD, FSI’ LIABILITY WITH RESPECT TO A SECURITY BREACH WILL NOT EXCEED THE GREATER OF THREE (3) TIMES THE CAP AND $200,000.
- Equitable Relief. Each Party acknowledges that a breach by the Party of this MSA, or any Schedule, Exhibit, or Addendum attached hereto, may cause the other Party irreparable damage for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a temporary restraining order, preliminary and/or permanent injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which such Party may be entitled at law or in equity.
- Indemnification
- Indemnification by FSI. FSI will defend, indemnify and hold harmless Client and its Affiliates, and each of their officers, directors, managers, shareholders, members and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert and consulting fees) arising out of or relating to any third party claim (1) that the use of the FSI Intellectual Property and FSI Properties in accordance with this Agreement infringes or misappropriates third party patent, copyrights, trademarks or trade secrets; (2) arising from any breach of a representation, warranty or covenant made by FSI under this Agreement, (3) arising from any death or personal injury to employees subcontractors of FSI or third parties or as a result of any negligent act or omission of FSI; (4) arising from the gross negligence or willful misconduct of FSI and or its employees, contractors and agents; (5) arising from a failure on the part of FSI and/or its employees, contractors and agents to comply with applicable law in performing this Agreement, (6) any breach of the Confidentiality provisions herein and/or (7) arising from any governmental determination that FSI has failed to maintain its independent contractor status or litigation determining a change of FSI’s independent contractor status, including liability for taxes and other penalties assessed upon Client because of the FSI’s change or lack of independent contractor status provided, however, that the foregoing obligations shall be subject to Client (i) promptly notifying FSI of the claim, (ii) providing FSI with reasonable cooperation in the defense of the claim at FSI’s cost and (iii) providing FSI with sole control over the defense and negotiations for a settlement or compromise (subject to Section 11B).
- Procedure for Indemnification. Client shall notify FSI of any and all Losses and Third-Party Claims. Client shall cooperate with FSI at the FSI’s sole cost and expense. FSI shall take control of the defense and investigation and shall employ counsel of its choice to handle and defend the same, at FSI’s sole cost and expense. FSI shall not settle any matter in a manner that adversely affects the rights of Client without Client’s prior written consent. Client may participate in and observe the proceedings at Client’s own cost and expense.
- General Terms & Conditions
- Export Control. The Parties will not use, distribute, transfer, or transmit any products, software, or technical information (even if incorporated into other products or services) provided under this MSA and any Schedule, Exhibit, or Addendum attached hereto, except in compliance with U.S. export laws and regulations, including the U.S. Department of Commerce’s Export Administration Regulations (EAR) and the U.S. Department of State’s International Traffic in Arms Regulations (ITAR) (the “Export Control Laws”). The Parties will not, directly or indirectly, export or re-export the following items to any country which is in the then-current list of prohibited countries specified in the applicable Export Control Laws: (i) software or technical data disclosed or provided to Client by FSI (or vice versa); or (ii) the direct product of such software or technical data. Each Party agrees to promptly inform the other Party, in writing, of any written authorization issued by the U.S. Department of Commerce or U.S. Department of State to export or re-export any such items referenced in (i) or (ii). The obligations stated above in this Section will survive the Term of this MSA or any other related agreement.No Relationship. The relationship of the Parties to this MSA is strictly limited to a licensor-licensee or independent contractor relationship, and nothing in this MSA creates, or is intended to create, a special relationship between the Parties, such as an association, trust, agency, partnership, joint venture, joint enterprise, or any other entity or similar legal relationship between the Parties, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to either Party. Neither Party will have the authority to, and will not, act as agent for or on behalf of the other Party or represent or bind the other Party in any manner.Integration. Each Schedule, Exhibit, and/or Addendum that refers explicitly to this MSA and is signed by both Parties will be deemed an integrated part of this MSA. The Parties may terminate any individual Schedule, Exhibit, and/or Addendum, without affecting the remaining MSA or any other Schedule, Exhibit, and/or Addendum. Following the Effective Date of the MSA, as well as any Schedule, Exhibit, and/or Addendum, the Parties may choose to enter into future projects or statements of work, which shall be identified and described in each additional Schedule, Exhibit, and/or Addendum. Each additional Schedule, Exhibit, and/or Addendum shall refer to this MSA, and shall be signed by both Parties, such that each additional Schedule, Exhibit, and/or Addendum will be deemed an integrated part of this MSA.Precedence. To the extent the provisions of the MSA and the Schedules, Exhibits, and/or Addenda address the same, similar, or substantially similar subject matter, the provisions shall be read in the manner giving full effect to all provisions, so as to avoid a conflict in the terms and conditions. Unless stated otherwise in a statement of work or any Schedule, Exhibit, and/or Addendum that forms an integrated part of this MSA, in the event there is a conflict between the terms and conditions of this MSA and any Schedule, Exhibit, and/or Addendum, the terms and conditions MSA shall be controlling.Governing Law & Jurisdiction. This MSA, as well as all Schedules, Exhibits, or Addenda, shall be governed, construed, and enforced in accordance with the laws of the State of Delaware and the United States of America, without regard to its conflict-of-laws rules. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of any state or federal court located within or embracing Delaware, United States of America, in connection with any matter arising out of this MSA.Entire Agreement; Amendment & Modification; Waiver. The Parties intend and agree that this MSA, together with all Schedules, Exhibits, and Addenda: (i) represent the final expression of the Parties’ intent; (ii) contain all the terms the Parties agreed to; and (iii) replace all of the Parties’ previous discussions, understandings, and agreements relating to the subject matter of this MSA, whether written or oral, occurring prior to the Effective Date. No amendment or modification to this MSA (including Schedules, Exhibits, or Addenda) is effective unless it is in writing and duly executed (i.e., signed) by an authorized Representative of each Party. The waiver or failure of either Party to exercise in any respect any right provided under this MSA shall not be deemed a waiver of any further right under this MSA.Severability. If any term or provision of this MSA, or any Schedule, Exhibit, or Addendum, is invalid or illegal, or declared unenforceable by any court of final jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this MSA, or any Schedule, Exhibit, or Addendum, or invalidate or render unenforceable such term or provision in any other jurisdiction.Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (other than payment obligations), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: acts of God; flood, fire, or explosion; war, invasion, riot, or other civil unrest; actions, embargoes, or blockades; or pandemics or epidemics beginning after the Effective Date of this Agreement (each of the foregoing, a “Force Majeure Event”). A Party whose performance is affected by a Force Majeure Event shall give notice to the other Party, stating the period of time the occurrence is expected to continue, and shall use commercially diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The affected Party will use reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible. In the event that FSI is the affected party and is not able to perform for thirty (30) days Client may terminate the MSA and will receive a refund of any prepaid, unused fees hereunder.Assignment. Neither party may assign its rights and obligations hereunder under this MSA, in whole or part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed (except in connection with a merger or corporate reorganization, by operation of law, or in connection with a sale of all or substantially all of the party’s assets, for which no consent shall be required).Headings. The section and subsection headings in this MSA are inserted solely as a matter of convenience and for reference, and shall not be considered in the construction or interpretation of any provision hereof.Counterparts. This MSA, and all Schedules, Exhibits, or Addenda attached hereto, may be signed in any number of counterparts, each of which is an original and all of which together form one single document. Signatures delivered by email in PDF format shall be effective.
- Notices. The Parties shall give all notices and communications (each, a “Notice”) between the Parties in writing by: (i) personal delivery; (ii) an internationally recognized next-day courier service; (iii) first-class registered or certified mail, postage prepaid; or (iv) electronic mail to the Party’s address specified in this MSA, or to the address that a Party has notified to be that Party’s address for the purposes of this Section. A Notice given under this MSA will be effective on: (i) the other Party’s receipt of it; (ii) if mailed, the earlier of the other party’s receipt of it or the third business day after mailing; or (iii) if sent via next-day courier service or electronic mail, the next business day after sending.
Schedule A
Implementation, Licensing, and Support of Certain FSI Properties
This Schedule A, in conjunction and accordance with the “Master Services Agreement” (the “MSA”) entered into by and between Foresight Software Inc. (“FSI”) and Omnigo (“Client”), sets forth the rights, specifications, features, and components in connection with FSI’s implementation, licensing, and support of certain FSI Properties, for the benefit of the Client. Unless provided for herein, this Schedule A incorporates all definitions, terms, and conditions of the MSA. The terms and conditions of this Schedule A are as follows:
- Implementation
- Implementation Services. FSI agrees to deliver and provide certain implementation services and Deliverables to the Client, in accordance with the Deliverable Schedule set forth in Exhibit 1 to this Schedule A (the “Implementation Services”). Specifically, FSI shall provide, deliver, and implement the following Platform Tools of the FSI Platform: Value Map™, Value Assessment™, and Value Intelligence™. The function of each of the foregoing Platform Tools is described as follows:
- Value Map™: FSI will codify the Client’s business needs into FSI’s propriety data model, incorporating and/or integrating the Market Data;
- Value Assessment™: FSI will deploy FSI’s proprietary data model, capturing insights and use cases for certain Contacts, incorporating and/or integrating the Solution Data; and
- Value Intelligence™: FSI will create an interactive database allowing the Client to identify and target certain needs for Contacts, including the provision of market insights for said Client, incorporating and/or integrating Opportunity Data.
- Facilitating the Implementation Services. In order for FSI to deliver and provide the Implementation Services in accordance with the Deliverable Schedule set forth in Exhibit 1 to this Schedule A, Client agrees to the following: (i) Client shall provide FSI with any and all materials pertinent to Client’s software platform and the relevant Contacts, which shall be used in creation and deployment of the Value Assessment™ and Value Intelligence™ tools; (ii) Client shall enable FSI to access a baseline set of data or other data required for implementation regarding the Client’s contacts; and (iii) Client shall promptly provide ongoing feedback to FSI, as FSI may request from time to time.
- Implementation Services. FSI agrees to deliver and provide certain implementation services and Deliverables to the Client, in accordance with the Deliverable Schedule set forth in Exhibit 1 to this Schedule A (the “Implementation Services”). Specifically, FSI shall provide, deliver, and implement the following Platform Tools of the FSI Platform: Value Map™, Value Assessment™, and Value Intelligence™. The function of each of the foregoing Platform Tools is described as follows:
- Subscription Services; Intellectual Property Rights
- License of the Online Platform. During the Term of the MSA, FSI hereby grants to Client and its Authorized Users a limited, revocable (upon termination), non-transferable, non-exclusive, and non-sublicensable right to use and access the FSI’s online platform entitled the “Foresight Portal” (and any FSI Intellectual Property required to use the Foresight Portal) and all other FSI Properties and Work Product provided by FSI to Client, which comprises the results and/or achievements of the Implementation Services, in and limited to the Territory and solely in connection with the Client’s Services under this MSA (hereinafter, the “Subscription”).
- Intellectual Property Rights. FSI shall retain all right, title, and interest in and to the Foresight Portal, as well as all Intellectual Property rights in, constituting, embodying, embracing, relating to, pertaining to, or applicable to the Foresight Portal.
- Support and Maintenance Services; Updates
- Support Services. During the Term, FSI shall provide Client with the support and maintenance services described on Exhibit 1 to this Schedule A (the “Support Services”). The Support Services provided to Client will ensure that the FSI Properties, including the Foresight Portal, are reliable, secure, and available to meet the needs of the Client and its Authorized Users. Any additional Support Services requested by Client, and for which there is an additional charge, must be pre-approved in writing by both Parties.
- Updates. During the Term, FSI shall provide to Client all Updates in and to the applicable FSI Properties, including the Foresight Portal.
Exhibit 1 to Schedule A
In accordance with Schedule A, the milestones for the Deliverables, the payment terms in connection with the Deliverables, and the Support Services are set forth as follows:
- Deliverables and Deliverable Schedule for Initial Term. For the Initial Term, the Deliverables shall be furnished, produced, developed, advanced, or otherwise performed in accordance with the following Deliverable Schedule:
Deliverable | Deliverable Schedule | Rate (Fee or Expense) |
Access to Foresight Portal (Subscription) | Date of Signature | Documented in order form |
- Support Services. During the Term, FSI shall provide the Client with Support Services in accordance with the terms and conditions below:
Support Service | Rate (Fee or Expense) | Occurrence |
Scheduled Maintenance and Updates | n/a | No more than once per month unless an Update includes repair to functionality of FSI Properties or the Update is required to assure security or stability of the FSI Properties |
Backup & Recovery | n/a | No more than once per day, FSI will capture and store a backup and access and usage data of the FSI Properties. |
Technical Support | n/a | As necessary, an FSI Representative will provide responses to queries regarding the technical performance, operability, or functionality of the FSI Properties, including troubleshooting |