Last Updated: July 15, 2021
This online Master Services Agreement (the "Agreement") describes the relationship between Correlated Labs, Inc., a Delaware corporation ("Company")and the customer identified below ("Customer") (each of Company and Customer, a "Party" and collectively, the “Parties”). This Agreement consists of the terms set forth below entitled “Terms and Conditions” (the “Terms”) and any Order Forms which together describe and set forth the general legal terms governing the relationship between the Parties. If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services through any online provisioning, registration or order process or (b) the effective date of the first Order Form.
1. Definitions. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Company Solution.
1.2 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Company Solution pursuant to Customer’s rights under this Agreement.
1.3 “Company Solution” means the Company’s software-as-a-service platform and related applications that are made available as a Company-hosted solution.
1.4 “Customer Information” means any data and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use in connection with the Services, including without limitation any such personally identifiable information.
1.5 “Professional Services” means professional services provided by Company to Customer as described in any Statement of Work (as set forth in Section 3.1), including any integration services set forth therein.
1.6 “Services” means the services provided by Company to Customer under this Agreement including, but not limited to, provision of the Company Solution and Professional Services as may be applicable.
2. Provision of Services.
2.1 Access. Subject to the terms and conditions of this Agreement, Company will provide the Services, including by giving Customer remote access to the Company Solution in connection therewith. On or as soon as reasonably practicable after the Effective Date, Company will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the Company Solution in accordance with this Agreement. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Company Solution, and notify Company promptly of any such unauthorized use known to Customer.
2.2 License Grant. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.4) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, to access and use the Company Solution in connection with the Services. Customer may only permit Authorized Users to access and use the features and functions of the Company Solution as contemplated by this Agreement. All rights not expressly granted to Customer in this Agreement are reserved by Company.
2.3 Customer Obligations. The Company Solution, together with any related software, technology, intellectual property rights or improvements, are the exclusive property of Company. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Company Solution, except as expressly allowed herein; (b) modify, adapt, alter or translate the Company Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Company Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Company Solution, except as permitted by law; (e) interfere in any manner with the operation of the Company Solution or the hardware and network used to operate the Company Solution; (f) modify, copy or make derivative works based on any part of the Company Solution or Documentation; (g) access or use the Company Solution to build a similar or competitive product or service; (h) attempt to access the Company Solution through any unapproved interface; or (i) otherwise use the Company Solution in any manner inconsistent with applicable law. Customer bears responsibility to obtain any telecommunications or computer hardware or software required by Customer or any Authorized User to access the Company Solution.
2.4 Feedback. Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Customer, including Authorized Users. Company will not identify Customer as the source of any such feedback.
3. Professional services & Change Requests; NO OTHER SERVICES.
3.1 Professional Services. Where the parties have agreed to Company’s provision of Professional Services, the details of such Professional Services will be set out in a separate, mutually executed statement of work (“Statement of Work”). The Statement of Work will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Statement of Work will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of a Statement of Work and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Statement of Work expressly states that it supersedes specific language in the Agreement.
3.2 Change Requests. A party desiring to make a change (the “Requestor”) to the Services in an Order Form or to a Statement of Work must submit a written change request (“Change Request”) to the other party (the “Requestee”). The Requestee will use commercially reasonable efforts to promptly notify the Requestor of its acceptance or rejection of the Change Request, provided that no acceptance will be valid unless the Change Request is mutually signed by both parties. If Customer is the Requestor, Company will use commercially reasonable efforts to advise Customer on the likely impact of the Change Request on the scope or timing of the Services and whether additional costs or fees may be applicable. If either party rejects a Change Request submitted by the other party, this Agreement will remain in effect with no change to the Services or Statement of Work.
3.3 No Other Obligations. Except as expressly provided in an Order Form (as may be amended pursuant to a Change Request) or a subsequent Statement of Work, no other services or offerings of Company shall be provided or implied. Company is solely responsible for its own strategic, operational, regulatory compliance and other business and legal decisions with regard to its business and employees, and Company shall bear no responsibility or liability for any decisions, actions or inactions by Customer or any third party acting on its behalf.
4. Customer Information.
4.1 Customer Responsibility. The Customer Information is the exclusive property of Customer. Customer is solely responsible for the accuracy, quality and legality of Customer Information. Customer will obtain all consents and permissions needed for Company to use the Customer Information to provide the Services. Customer and its Authorized Users will have access to the Customer Information and will be responsible for all changes to or deletions of Customer Information and the security of all passwords and other Access Protocols required in order the access the Company Solution. Customer has the responsibility to employ appropriate security measures to protect the Customer Information, to comply with applicable laws in connection with the use of the Services and Customer Information, and to make its own back-ups of the Customer Information.
4.2 Company Responsibility. Company shall comply with all applicable laws in connection with the provision of the Services, including as relates to its processing of any Customer Information. Company will maintain reasonable physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of theCompany Solution and the Customer Information.
5.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Company under this Agreement, Company will be paid the fees as set forth in an Order Form or a separate Statement of Work (“Fees”).
5.1 Payments. Except as otherwise provided in an Order Form or an applicable Statement of Work, all Fees are billed at the end of the month due and payable within thirty (30) days of the date of the invoice. Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Company Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full.
5.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Company Solution to Customer. Customer will make all payments of Fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such taxes have been paid.
5.3 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%)per month, or the maximum legal rate if less, from the due date until paid.
6.1 Confidential Information. “Confidential Information” means any non public information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Company Solution will be considered ConfidentialInformation of Company. The CustomerInformation will be considered Confidential Information of Customer.
6.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the DisclosingParty, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Company). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
6.3 Exceptions. The confidentiality obligations set forth in Section 6.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce itsrights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
7. Term And Termination.
7.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement (the “Term”). This Agreement will automatically renew for additional terms of one (1) year each unless either party gives written notice of non-renewal to the other party at one hundred eighty (180) days prior to the expiration of the then-current term.
7.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
7.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason,Customer’s use of and rights to the Services and Company Solution shall cease and any amounts owed to Company under this Agreement will become immediately due and payable. Sections 2.3, 2.4, 5, 6, and 8 to 11 will survive expiration or termination of this Agreement.
8. Warranties and Disclaimers.
8.1 Mutual Warranties. Each Party represents and warrants the following: (i) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (ii) that it has the full power and authority to consent to and perform this Agreement; and(iii) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
8.2 Company Warranties. Company represents and warrants that it will provide the Service and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards and in compliance with applicable laws, rules and regulations.
8.3 Customer Warranties. Customer represents and warrants that Customer has all consents and permissions necessary to provide the Customer Information hereunder, and will not, and will not permit others to, violate any applicable law, rule or regulation in connection with its use of the Services or Company Information.
8.4 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND COMPANT SOLUTION ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY. COMPANY DOES NOT WARRANT THAT THE COMPANY SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
9. Limitation of Liability
9.1 Types of Damages. EXCEPT FOR AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN SECTION 10.2, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. EXCEPT FOR AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN SECTION 10.2, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO COMPANY IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL COMPANY HAE ANY LIABILITY ARISING OUT OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING OTHER SERVICE PROVIDERS. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10.1 By Company. Company will defend at its expense any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the CompanySolution infringes such third party’s patents, copyrights or trade secret rights under applicable laws within the United States of America.Notwithstanding the foregoing, Company will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Company Solution not in accordance with this Agreement; (ii) any use of theCompany Solution in combination with other products, services, software or data not supplied by Company; or (iii) any modification of the Company Solution by any person other than Company or its authorized agents.
10.2 By Customer. Customer will defend at its expense any claim, action or suit brought against Company (including reimbursement of Company’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to (a) Customer’s breach of its warranties hereunder, (b) any employment-relating matters or disputes, including without limitation allegations of payroll errors or omissions or wage, hour or classification claims, or (c) the acts or omissions of any third party or other service provider engaged by or on acting on behalf of Customer.
10.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11.1 Marketing. Customer grants the Company the right to use its name and logo in promotional materials on the Company’s website, sales and marketing materials or in other appropriate venues.
11.2 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The parties hereby expressly consents to the exclusive personal jurisdiction and venue in the state and federal courts for New York,New York for any lawsuit, claim or dispute arising from or related to thisAgreement. The United Nations Convention on Contracts for the InternationalSale of Goods does not apply to this Agreement.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Licensed Material and Documentation.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment ofFees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8 Independent Contractors. Customer’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.
11.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Company, by emailing email@example.com and if toCustomer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
11.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Company.