Terms and Conditions

This Master Services Agreement (the “Master Services Agreement” or “MSA”) is made and entered into by and between YourPass (YOUR PASS, s.r.o., Prague 4 - Chodov, Türkova 2319/5b, 149 00 Czech Republic, Company ID: 24809888, file no. C 176332 maintained by the Municipal Court in Prague, or YOUR PASS GmbH, Edisonstraße 63, 12459 Berlin-Oberschöneweide, Steuer-Nr.: 301/5855/0673, USt-IdNr: DE31725081, maintained by Amtsgericht Charlottenburg (Berlin) HRB 194946 B, or another YourPass group company with which you concluded the Agreement) and Client as of the Order Form Effective Date set forth therein and sets forth the terms under which Client may use certain YourPass Services and purchase certain Professional Services.

1. Definitions

1.1.       “Account” means Client’s dedicated space within the Platform accessible by Client.

1.2.       “Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights or controls or is under common control with that legal entity. “Control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract or otherwise. Any such company shall be considered an Affiliate for only such time as such interest or control is maintained.

1.3.       “Agreement” means this Master Services Agreement and any Order Form referencing this Master Services Agreement, and any other schedules, Service Descriptions, statements of work, exhibits or appendices thereto, whether attached or incorporated by reference.

1.4.       “Client” means the entity or individual identified in an applicable Order Form, that has consented to this Agreement by execution of an Order Form that references this Master Services Agreement or by any other legally binding method of acceptance of this Agreement. 

1.5.       “Client Content” means any material that is (i) entered into the Account by Client or on behalf of or under the direction of Client or (ii) published through the Account to the User(s).

1.6.        “Contract Year” or “Annual” means each consecutive twelve (12) month period commencing on the Order Form Effective Date or any anniversary thereof during the Subscription Term.

1.7.       “Documentation” means Provider's then-current technical, legal and functional documentation for the Platform which is made available to Client with the Platform, including, but not limited to, data protection agreement, SLAs, service descriptions, user guides, configuration workbooks or release notes, as applicable. 

1.8.       "Fees" means the fees set out in any Order Form.

1.9.       “Intellectual Property Right” means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, and any applications or right to apply for registration therefore, internet domain names, logos, designs, slogans, and general intangibles of like nature, computer software programs or applications, tangible or intangible proprietary information, know-how, proprietary processes, formulae, algorithms, or any other intellectual property right, whether registered or unregistered, and whether first created before or after the Order Form Effective Date.

1.10.      “Month” (or “Monthly”) means a calendar month during the Subscription Term.

1.11.     “Order Form” means all written or online order forms or other ordering documentation entered into by the Provider and the Client containing the pricing, subscription term and other specific terms and conditions applicable to the Services.

1.12.     “Platform” means Provider’s proprietary digital card services, accessed by Client and individual Users via the internet, as specified in an applicable Order Form, including upgrades and updates thereto made generally available by Provider to its clients.

1.13.     "Platform Availability" means the average percentage of total time during which the production version of the Platform is available to Client during a calendar month, excluding (i) any maintenance windows (including any maintenance windows defined in a supplement to this Agreement); (ii) delays due to conditions beyond the reasonable control of Provider, including, but not limited to communication disruptions in Client’s internal network, Internet connectivity or Channel availability originating from a party other than Provider, general internet outages, network or services availability issues related to denial of service attacks and other flooding techniques, or force majeure events; (iii) delays caused by systems outside of the Platform, including, but not limited to, Client’s network, equipment and systems; (iv) micro outages (meaning an inaccessibility that lasts less than fifteen (15) minutes, provided that there are no more than three (3) micro outages within a calendar month); and (v) inaccessibility due to Client’s requests or where Client approved the same in advance.

1.14.     “Professional Services” means deployment, configuration, training, and other similar services related to the Platform that may be offered from time to time and that Client elects to receive as described in an executed Order Form or statement of work.

1.15.     “Provider” (or “YourPass”) or means the entity identified by the Order Form as providing the Services to Client.

1.16.     “Services” means the Platform and Professional Services.

1.17.     “Service Description” means the additional terms and conditions that apply to the Platform as updated from time to time by Provider and that is incorporated in an Order Form. Service Description is a subset of Documentation and can be viewed at: https://yourpass.eu/legal/terms

1.18.     "Usage Metric" means the usage limit(s) applicable to Client’s use of the Services as specified in the applicable Order Form (e.g., number of Users or Cards, or otherwise).

1.19.     “User” means an individual who is authorised by Client to use the Platform and to whom Client has made the Platform’s services (eg., a digital card) available, such as Client's customer, employee, agent, contractor, consultant, supplier or other.

1.20.     “Work Product” mean any materials produced by or with Provider pursuant to this Agreement, including in the course of providing any support or Professional Services to Client. Work Product includes materials created for or in cooperation with Client, but do not include any Client Content, Client Confidential Information or the Services. For clarity, Professional Services may be performed under a statement of work, which statement of work will be governed by the terms and conditions of this Master Services Agreement.

2. Usage Rights

2.1.       Grant of Rights. Provider grants to Client rights to use the Platform as set out in the then-current valid Provider’s EULA.. Permitted uses and restrictions of the Platform also apply to Work Product and Documentation.

2.2.       Users. Client may permit Users to use the Platform. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Client is responsible for breaches of the Agreement caused by Users.

2.3.       Acceptable Use. With respect to the Platform, Client will not: (a) except to the extent such rights cannot be validly waived by law, disassemble, decompile, reverse-engineer, copy, translate or make derivative works, (b) transmit any content or data that is unlawful or infringes any Intellectual Property Rights, (c) circumvent or endanger its operation or security, (d) use the Services for purposes of a third party or otherwise for the benefit of a third party (other than an Affiliate as permitted hereunder); or (e) use or view the Platform for the purposes of developing, directly or indirectly, a product or service competitive to the Services. Client shall manage the Client Content and administer the Platform using the interfaces thereof in a lawful manner and without infringing the rights of any person, including Intellectual Property Rights and data privacy rights.

2.4.       Verification. Client will monitor its own use of the Platform and report any use in excess of the Usage Metrics and volume. Provider may monitor use to verify compliance with Usage Metrics, volume and the Agreement.

2.5.       Suspension of Use. Provider may suspend use of the Platform if continued use may result in material harm to the Platform or its users. Provider will promptly notify Client of the suspension. Provider will limit the suspension in time and scope as reasonably possible under the circumstances.

2.6.       Free Trial. If Client is granted access under this Agreement to a free (no fee) version of the Platform, to the extent permitted by applicable law, Client agrees that (i) Provider has no obligation to provide any particular service level or support services; and (ii) Provider may cease providing the Platform at any time without notice. This 2.6 supersedes any conflicting term of this Agreement.

3. Provider Responsibilities and Obligations

3.1.       Customer Support. A description of the support Provider will provide for the Platform will be set forth in the applicable Order Form. 

3.2.       Security. Provider uses reasonable security technologies in providing the Platform. 

3.3.       Modification. Provider may change or modify the Platform at any time. Provider can diminish the functionality of the Platform during the term of the Order Form subject to a reasonable prior notice to the Client, allowing the Client to terminate the Agreement or any respective Order Form prematurely. Furthermore, the Service may contain elements designed for interoperability with third party applications. In order to use such elements, it may be necessary to obtain access to relevant third-party applications. If the provider of the relevant third-party application ceases to enable the interconnection of the relevant elements of the Service with the application under reasonable conditions, the Provider has a right to end or suspend the provision of such elements of the Service without compensation or prior notice.

3.4.       Analytics. Client acknowledges and agrees that Provider may during the Subscription Term create analyses utilizing, in part, Client Content and information derived from Client’s use of the Platform and Professional Services. Analyses will anonymize and aggregate information and will be treated as Work Product. Examples of how analyses may be used include: optimizing resources and support; research and development; automated processes that enable continuous improvement, performance optimization and development of new products and services; verification of security and data integrity; internal demand planning; and data products such as industry trends and developments, indices and anonymous benchmarking. Both during and after the Subscription Term, Provider may use and disclose such analyses to determine and report Services usage patterns by customers and end users generally, and for any other legitimate purpose

4. Professional Services

4.1.       This Agreement does not include services other than Professional Services purchased in an Order Form or a separate statement of work. If Client elects to have any services for the Platform provided by a third party, Provider shall have no liability for any defect or failure of the Platform caused by such third-party services, and Client shall not be entitled to any reduction in fees for the Platform. Provider may deny access to the Platform to any third-party service provider which Provider determines in its reasonable discretion poses a security or confidentiality risk to Provider systems, data or Intellectual property.

5. Client Responsibilities and Obligations

5.1.       Client Content and Channels. Subject to Section 12 below, Client grants to Provider the nonexclusive right to use Client Content for the sole purpose of and only to the extent necessary for Provider to provide the Platform, unless otherwise set forth in a Service Description or Order Form. Client shall be responsible for entering its Client Content into the Platform and Client shall be responsible for the content of the Client Content supplied by it. Client grants to Provider during the term of this Agreement a royalty-free, non-exclusive, non-transferable, worldwide right and license: (i) to copy, cache, store, reproduce, perform, display, use, distribute, transmit and generally make available the Client Content in electronic form via the Internet, through wireless communications services and social media through the Platform in order to provide the Services to Client in accordance with this Agreement; and (ii) to access Client’s accounts on the Channels in order to provide the Services..

5.2.       Compliance. Client agrees that it has collected and shall maintain and handle all Client Content in compliance with all applicable data privacy and protection laws, rules and regulations. Further, Client is solely responsible for determining the suitability of the Platform for Client's business and complying with any regulations, laws, or conventions applicable to the Client Content and Client’s use of the Platform(s). Rights and obligations of the Provider and the Client relating to personal data protection are governed by a separate Data Protection Agreement. Unless expressly agreed otherwise, the conditions of the Data Protection Agreement will apply. 

5.3.       Security. Client shall maintain commercially reasonable security standards for its and its Users use of the Platform.

6. Charges and Payment

6.1.    Fees and Payment Terms. Unless agreed otherwise in the Order Form, Client will pay fees as stated in the Order Form, within thirty (30) days of invoice date. All fees not paid when due shall accrue late charge of 1.5% per month or the maximum rate permitted by law. Additionally, in the event any Fees or expenses are more than fifteen (15) days overdue, Provider may (i) suspend its performance of the Services (including but not limited to Client’s ability to access and use the Platform) and (ii) require full payment before Provider resumes performance. Client cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All Order Forms are non-cancellable and fees non-refundable. 

6.2.    Taxes. Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Client’s account. Client is responsible for all taxes, other than Provider’s income and payroll taxes. Client must provide to Provider any valid tax-exemption permits or certificates prior to signing an Order Form. If Provider is required to pay taxes (other than its income and payroll taxes) or if Client requires Provider to provide any tax certificate or similar document (e.g. tax residency certificate), Client will reimburse Provider for those amounts and costs associated with issuance and provision of such certificates and indemnify Provider for any taxes and related costs paid or payable by Provider attributable to those taxes. Instruction on international wire transfer charges shall be set to OUR (Client pays all bank's transfer charges) or SHA (each party pays its bank's transfer charges) or their equivalents, otherwise Client shall indemnify Provider for any charges and costs paid or payable by Provider attributable to those international wire transfer charges related to Clients’s payment.

6.3.    Expenses. Client shall reimburse Provider for all reasonable, pre-approved (by Client in writing) and appropriately documented travel and related expenses incurred by Provider in performing any support or Professional Services for Client under this Agreement.

6.4.    Purchase Order. If Client requires a purchase order to pay vendors, Client will provide Provider with approved purchase order information and complete and accurate billing and contact information upon execution of the Order Form. If a purchase order is required, Client shall ensure that its purchase order is sufficient to cover all fees in the Order Form, all variable fees that become due under the Order Form, and all applicable taxes. Terms of a purchase order will not modify the Agreement, and the content of such purchase order shall not be binding upon either party except to reaffirm Client’s payment obligation under the applicable Order Form.

7. Term and Termination

  

7.1.       Term. The term of this Agreement begins on the Effective Date set forth in the applicable Order Form and shall continue in effect for the duration of the term of a Services subscription identified in the applicable Order Form (also referred to as the “Subscription Term”), including all renewals. Termination of individual Order Forms shall leave other Order Forms unaffected.

7.2.       Renewal and Renewal Term Fees. Unless a party gives written notice of non-renewal at least one (3     ) months in advance of the end of end of the Subscription Term and each period of renewal thereafter as applicable, term of this Agreement shall automatically renew for consecutive one-year periods (each a “Renewal Term”), and Client shall pay Provider the applicable Renewal Term fees. The Renewal Term fees for the applicable Renewal Term shall be due on the first day of the Renewal Term, and Client shall pay such Renewal Term fees pursuant to the payment terms set forth in the Order Form. The Renewal Term fees shall be equal to the subscription fees in place at the end of the prior term (or the previous Renewal Term as applicable), provided that Provider may increase rates by no more than five percent (5%) for each applicable year of each Renewal Term, unless Provider provides Client a notice of different pricing at least 60 days prior to the applicable Renewal Term.  Notwithstanding anything to the contrary above, renewal of promotional or one-time priced subscriptions will be subject to Provider’s applicable list price in effect at the time of the applicable renewal.

7.3.       Termination. A party may terminate the Agreement: (a) upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty day period, (b) as permitted under Sections 8.1, or 9.1(c) (with termination effective thirty days after receipt of notice in each of these cases), or (c) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, otherwise materially breaches Section 12 or materially breaches the applicable Data Protection Agreement. The Provider can also remove the Account or any of its parts if, as a result of Client’s use of the Services (including any cards in the wallet in the Account), the companies Apple or Google (or other similar third persons) become entitled to withdraw the certificates they provided to the Client for the applications Apple Wallet or Android Pay or similar.

7.4.       Refund and Payments. For termination by Client in accordance with 7.3 above or an 9.1(c) termination, Client will be entitled to: (a) a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and (b) a release from the obligation to pay fees due for periods after the effective date of termination. In case of termination of the Provider for reasons on the part of Client, the fees shall be non-refundable.

7.5.       Effect of Expiration or Termination. Upon the effective date of expiration or termination of the Agreement: (a) Client’s right to use the Platform and all Provider Confidential Information will end, (b) Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and (c) termination or expiration of the Agreement does not affect other agreements between the parties.

7.6.       Survival. Sections 1, 6, 7.4, 7.5, 7.6, 9, 10, 11, 12 and 15 will survive the expiration or termination of the Agreement.

8. Warranties by Provider

8.1.       Limited Platform Warranty. Provider warrants that the Platform will substantially conform to the specifications stated in the Documentation. The foregoing warranty shall not apply to the extent: (a) the Platform is not being used in accordance with this Agreement and/or any Documentation; or (b) any non-conformity is caused by third party products, content or service being accessed through the Platform that are identified as third-party products, content or service; or (c) the Platform being used was provided for no fee or is a trial license of the Platform. Subject to Section 8.3, Client's sole and exclusive remedy, and Provider's entire liability for breach of the limited warranty in this Section 8.1, shall be correction of the warranted non-conformity or, if Provider fails to correct the warranted non-conformity after using reasonable commercial efforts, Provider may terminate access to the non-conforming Platform and refund the subscription fees paid by Client for such Platform (as identified in the applicable Order Form) for the remainder of the subscription term (starting on the date Client reported the non-conformity).

8.2.       Limited Professional Services Warranty. Provider warrants that (a) it will perform any Professional Services in a workmanlike and professional manner consistent with generally accepted industry practices, and (b) the Professional Services and Work Product will conform in all material respects with the descriptions set forth in the applicable Order Form, statement of work or deployment descriptions, as applicable. Subject to Section 8.3, Client’s sole and exclusive remedy, and Provider’s entire liability for breach of the limited warranty in this Section 8.2, shall be the re-performance of such deficient Professional Services; and if Provider fails to re-perform such Professional Services as warranted, Client shall be entitled to recover the fees paid to Provider for such deficient Professional Services.

8.3.       Warranty Claim Procedure. Client shall provide Provider with prompt written notice of any non-conformity described in this Section 8 as follows: (a) for any non-conformity of the Platform, within thirty (30) days of Client’s discovery of such non-conformity, and (b) for any non-conformity of any Professional Service, within sixty (60) days of completion of the applicable Professional Service.

8.4.       Platform Availability. Provider warrants at least ninety-nine-point-five percent (99.5%) Platform Availability over any calendar month. Should Provider fail to achieve ninety-nine-point-five percent (99.5%) Platform Availability over a calendar month, Client shall have the right to receive a credit equal to one percent (1%) of its subscription fees for the Platform for that month, for each one-half of one percent (0.5%) (or portion thereof) by which Provider fails to achieve such level, up to one hundred percent (100%) of the fees for such month. This is Client’s sole and exclusive remedy for any breach of this service level warranty. Claims under this service level warranty must be made in good faith and by submitting a support case within ten (10) business days after the end of the relevant period.

8.5.       Disclaimer. To the maximum extent permitted by law, the sole and exclusive warranties and warranty remedies are set forth in this section and, except as expressly stated in this Agreement, the Services, including all functions thereof, are provided on an "as is" basis, without representations or warranties of any kind whatsoever, whether express, implied, oral or written, including without limitation, accuracy of content, non-infringement, non-interference, merchantability or fitness for a particular use or purpose or that the Services will be uninterrupted, timely or error-free. Client agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Provider, including any roadmaps, with respect to future functionality or features.

9. Third Party Claims

9.1.       Claims Brought Against Client. (a) Provider will defend Client against claims brought against Client and its Affiliates by any third party alleging that Client’s and its Affiliates’ use of the Services (excluding the Client Content and use of the Channels Authorization) infringes or misappropriates a patent claim, copyright, or trade secret right belonging to such third party. Provider will indemnify Client against all damages finally awarded against Client (or the amount of any settlement Provider enters into) with respect to these claims. (b) Provider’s obligations under Section 9.1 will not apply if the claim results from (i) Client’s breach of Section 2, (ii) use of the Services in conjunction with any product or service not provided by Provider, or (iii) use of the Services provided for no fee. (c) In the event a claim is made or likely to be made, Provider may (i) procure for Client the right to continue using the Services under the terms of the Agreement, or (ii) replace or modify the Services to be non-infringing without a material decrease in functionality. If these options are not reasonably available, Provider or Client may terminate Client’s subscription to the affected Services upon written notice to the other.

9.2.       Claims Brought Against Provider. (a) Client will defend Provider against claims brought against Provider, and its subcontractors by any third party related to Client Content. (b) Client will indemnify Provider against all damages finally awarded against Provider and its subcontractors (or the amount of any settlement Client enters into) with respect to these claims.

9.3.       Third Party Claim Procedure. (a) The party against whom a third-party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defence and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defence. (b) The party that is obligated to defend a claim will have the right to fully control the defence. (c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.

9.4.       Exclusive Remedy. The provisions of Section 9 state the sole, exclusive, and entire liability of the parties, their Affiliates and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party Intellectual Property Rights.

10. Limitation of Liability

10.1.       Unlimited Liability. Neither party will exclude or limit its liability for damages resulting from (a) death or personal injury caused by negligence, (b) breach of the obligations imposed by s.12, Sales of Goods Act 1979 or s.2, Supply of Goods and Services Act 1982, (c)wilful misconduct (d) fraud or fraudulent misrepresentation, (e) unauthorised use or disclosure of Confidential Information, (f) either party’s breach of its data protection and security obligations that result in an unauthorised use or disclosure of personal data, (g) their respective obligations under Section 9, (h) any failure by Customer to pay any fees due under the Agreement, (i) any other liability which cannot be excluded or limited by applicable law.

10.2.       Liability Cap. Subject to Section 10.1 above, the aggregate liability of each party to the other (or its respective Affiliates or Provider’s subcontractors) or any other party in connection with this Agreement, shall not exceed an amount of damages exceeding the amount of the fees paid for the applicable Services in the twelve (12) month period preceding the date of the incident giving rise to such liability.

10.3.       Exclusion of Damages. Save as provided in Section 10.1 above, and regardless of the basis of liability, under no circumstances shall either party (or their respective Affiliates or Provider’s subcontractors) be liable to the other or any other party, for any loss or damage (whether or not the other party had been advised of the possibility of such loss or damage) in any amount, to the extent that such loss or damage is (a)consequential, indirect, special or punitive; or (b) for any loss of profits, loss of business, loss of business opportunity, loss of goodwill, loss resulting from work stoppage or loss of revenue or anticipated savings, whether any such loss or damage is direct or indirect. The Parties acknowledge and agree that the Services are provided, among others, using standard external hosting and similar services over which the Provider can execute only a limited amount of control. Should any liability of the Provider arise due to reasons on the part of its external standard services providers such as hosting providers (AWS etc.), the Provider shall be liable to the other or any other party, mutatis mutandis, solely in the extent and under the conditions of the liability of the respective standard services provider.

10.4.       Risk Allocation. The provisions of this Agreement allocate the risks between Provider and Client. The Services fees reflect this allocation of risk and limitations of liability herein. The aforementioned liability limitations shall include any claims against employees of, subcontractors of, or any other persons authorised by either party.

11. Intellectual Property Rights

11.1.       Provider Ownership. Provider and its licensors own all Intellectual Property Rights in and related to the Platform, Work Product, Documentation, Professional Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Client are reserved to Provider and its licensors.

11.2.       Client Ownership. Client owns all right, title and interest in and to all Client Content uploaded, stored, processed or transmitted through the Platform under the Account. 

11.3.       Non-Assertion of Rights. Client covenants, on behalf of itself and its successors and assigns, not to assert against Provider and its licensors, any rights, or any claims of any rights, in any Platform, Work Product, Documentation, or Professional Services.

12. Confidentiality

12.1.       Confidential Information. “Confidential Information” means information, disclosed by a party to the other in connection to this MSA, which is either marked confidential or disclosed in circumstances in which a reasonable person would consider the information to be confidential. Without limiting the generality of the foregoing, the terms of this Agreement, personal data, Platform, the present or future functionality of the Platform, and all technical information underlying such functionality are Confidential Information. Confidential Information does not include information that the receiving party can demonstrate (a) was in receiving party’s possession before receipt from the disclosing party, (b) is or becomes publicly available other than through a breach of this Agreement, or (c) is rightfully received from a third party without a duty of confidentiality. If Confidential Information is required to be disclosed pursuant to applicable law, regulation or court order, the receiving party must provide prompt advance notice thereof (except to the extent otherwise prohibited by applicable law, regulation or court order) to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.

12.2.       Protection of Confidential Information. The receiving party shall use at least the same degree of care as it uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care, to prevent (a) use of the disclosing party’s Confidential Information for any purpose other than to carry out the terms of this Agreement, and (b) disclosure of such Confidential Information to any person or party other than those who need to know such Confidential Information to carry out the terms of this Agreement and who are bound by written confidentiality agreements, with terms no less restrictive than those included in this Agreement. This MSA may be disclosed in confidence to legal counsel or other professional advisors with a need to know in the context of a merger, financing or similar transaction or for securities or other regulatory filings. Each party acknowledges that unauthorized disclosure of the other party’s Confidential Information would cause irreparable harm to the other party and would entitle the other party to seek injunctive relief upon disclosure or threatened disclosure, without a requirement to prove irreparable harm or the posting of a bond.

13. Security

13.1.       Security Practices. Provider uses reasonable security technologies in providing the Platform.

13.2.       Security Incidents. In the event of a Security Incident, Provider shall provide notice to Client without undue delay and shall provide timely information and cooperation as required for Client to fulfil its data breach reporting obligations under applicable Data Protection Law and other applicable law. Provider shall further take all commercially reasonable measures to remedy or mitigate the effects of the Security Incident and shall keep Client informed of all such activities in connection with the Security Incident.

14. Trademarks

14.1. Neither party grants the other party any rights to use its trademarks, service marks, or other proprietary symbols or designations ("Trademarks") without the written consent of the other party, except as otherwise described herein. Neither party will combine the other's Trademarks so as to effectively create a unitary composite mark, nor shall it use any product name or trademark in a manner that is confusingly similar to the other party's Trademark.

15. Miscellaneous

  

15.1.       Feedback. If Client chooses to provide Provider with ideas or suggestions regarding any Provider products or services, Client agrees that Provider is free to use any such ideas and suggestions for any purpose, including, without limitation, developing, improving and marketing products and services, without any liability or payment of any kind to Client.

15.2.       Publicity. Client agrees that Provider may issue a mutually agreeable news release regarding Client's selection of the applicable Platform or Professional Service. Once a press release has been issued, Provider may publicly refer to Client as being a customer of Provider and use the Client's name in any publicity material regarding Client's selection and use of Provider’s Platform and / or Professional Services.

15.3.       Severability. It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.

15.4.       No Waiver. If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.

15.5.       Counterparts. This Master Services Agreement and any Order Form may be signed in two counterparts, each of which shall be deemed an original. Signatures sent by electronic means (facsimile or scanned and sent via e-mail or signed by electronic signature service where legally permitted) shall be deemed original signatures.

15.6.       Compliance with Laws. The Platform, Documentation and other Provider materials are subject to the export control laws of various countries, including without limitation the laws of the United Kingdom. Client agrees that it will not submit the Platform, Documentation or other Provider materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of Provider, and will not export the Platform, Documentation and Provider materials to countries, persons or entities prohibited by such laws. Client shall also be responsible for complying with all applicable governmental regulations of the country where Client is registered, and any foreign countries with respect to the use of the Platform, Documentation or other Provider materials by Client and its Users.

15.7.       Anti-Corruption. Client agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Provider employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. Client further agrees that if it learns of any violation of the above restriction, Client will use reasonable efforts to promptly notify Provider’s Legal Manager.

15.8.       Governing Law. This Agreement and any claims arising out of or relating to this Agreement and its subject matter shall be governed by and construed under the laws of England, excluding its conflict of laws provisions and the parties hereby submit to the exclusive jurisdiction of the English courts located in London. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Either party must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within one (1) year from the date when such party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).

15.9.       Notices. All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to the legal department. Notices by Provider relating to the operation or support of the Platform may be in the form of an electronic notice to Client’s authorized representative or primary contact identified in the Order Form. 

15.10.     Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the effective date of this Agreement and which are beyond the reasonable control of the Parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.

15.11.     Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between Provider and Client in connection with the parties’ business relationship related to the subject matter hereof, and all previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by this Agreement and the parties disclaim any reliance on any such representations, discussions and writings. This Agreement may be modified only by a writing signed by both parties. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order furnished by one party to the other, and any additional terms and conditions in any such purchase order shall have no force and effect, notwithstanding the non-furnishing party’s acceptance or execution of such purchase order. Unless the context requires otherwise, wherever used herein the singular shall include the plural and vice versa.

15.12.     Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Provider will refund to Client any prepaid fees allocable to the remainder of the term of all Platform subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

15.13.     Order of Precedence. The following order of precedence shall be applied in the event of conflict or inconsistency between the components of this Agreement: (i) the Order Form; (ii) the schedules, Service Description, exhibits and appendices included with or referenced by the Order Form; (iii) and this Master Services Agreement.

15.14.     Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. Notwithstanding any other provision in this Agreement, nothing in this Agreement shall create or confer (whether expressly or by implication) any rights or other benefits whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person not a party hereto.

MSA Effective Date: April 8, 2020