Speak with Smartwyre

Master Services Agreement

Master Services Agreement

This document describes the relationship between Smartwyre, Inc., a Delaware corporation (“Company”) and the customer identified in the Initial Order Form (“Customer”) (each a “Party” and collectively, the “Parties”).

The “Terms and Conditions” (the “Terms”) outlined here describe and set forth the general legal terms governing the relationship between the Parties (collectively, the “Agreement”).  This Agreement, including the below Terms, will become effective when an Initial Order Form is executed by authorized representatives of both Parties (the “Effective Date”).

TERMS AND CONDITIONS
  1. Definitions. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
    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.
    2. Authorized User” means Customer’s employees who are authorized to access the Company Solution pursuant to Customer’s rights under this Agreement.
    3. Company Solution” means the Company software-as-a-service application identified in an Order Form that allows Authorized Users to access certain features and functions through a web interface.
    4. Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
    5. Documentation” means the technical materials provided by Company to Customer in hard copy or electronic form describing the use and operation of the Company Solution.
    6. Error” means a reproducible failure of the Company Solution to substantially conform to the Documentation.
    7. Initial Order Form” means the first order form that is signed by both Parties and references this Agreement. The date of execution by the Customer will represent the effective date of the Agreement.
    8. Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
    9. Order Form” means an additional order form that is signed by both Parties and references this Agreement.
    10. Product Regulatory Data” means product regulatory data Company obtains from a third party data provider (“TP Data Provider”) and provides to Customer through the Company Solution.
    11. Professional Services” means professional services provided by Company to Customer as described in an SOW (defined in Section 6).
    12. Reports” means results and reports generated for Customer through the use of the Services.
    13. Services” means any services provided by Company to Customer under this Agreement as set forth in an Order Form and SOW, including, but not limited to, provision of the Company Solution and Professional Services.
    14. Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Company as required for use of the Company Solution. The current requirements are described in the Documentation.
    15. Vendor” means Customer’s chemical, seed, fertilizer suppliers, or any other third party whose content and information Customer may manage using the Company Solution.
    16. Vendor Content” means content and information regarding a Vendor’s SKU’s, discounts, rebates and incentives, provided or submitted by, or on behalf of, Customer or a Vendor.
  2. Provision of Services
    1. Access.  Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), Company will provide Customer with access to the Company Solution.  On or as soon as reasonably practicable after the Effective Date, the Parties will work together to coordinate the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Company Solution in accordance with the Access Protocols.  Customer will ensure that only Authorized Users will access the Company Solution.  Customer is responsible for maintaining the confidentiality of its Access Protocols, and is solely responsible for all activities that occur through the use thereof.  Customer agrees (a) not to allow a third party to use its account, username or password at any time, and (b) to notify Company promptly of any actual or suspected unauthorized use of Customer’s account, username or password.  Company reserves the right to change or update the Access Protocols in Company’s sole discretion from time to time.  Company also reserves the right to suspend or terminate any username and password, or other method of Customer access, that Company reasonably determines may have been used by an unauthorized third party.
    2. Support Services. Subject to the terms and conditions of this Agreement, Company will exercise commercially reasonable efforts to (a) provide support for the use of the Company Solution to Customer, and (b) keep the Company Solution operational and available to Customer, in each case in accordance with its standard policies and procedures, as set forth in Exhibit B.
    3. Hosting.  Company will, at its own expense, provide for the hosting of the Company Solution, provided that nothing herein will be construed to require Company to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Company Solution from the Internet.
  3. Access
    1. Company Solution. Subject to the terms and conditions of this Agreement, Company will make the Company Solution available to Customer solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form.  Customer can access and use (a) the Company Solution in accordance with the Documentation, and (b) the Documentation solely to support Customer’s use of the Company Solution.  Customer may permit any Authorized Users to access and use the features and functions of the Company Solution as contemplated by this Agreement.  Customer acknowledges and agrees that the Reports provided hereunder by Company are purely predictive in nature, are based on the Customer Content and Vendor Content and Company’s interpretations thereof, and that Company does not provide financial or accounting advice or make revenue recognition or other accounting decisions.  Customer is solely responsible for determining and obtaining any discounts, rebates and incentives it receives from its Vendors, and its financial decisions and accounting determinations based thereon.
    2. Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Company Solution, Reports or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Company Solution, Reports or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Company Solution or Documentation 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, Reports, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement.  Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Company or its licensors on the Report or any copies thereof.
    3. Ownership. The Company Solution and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers.  All rights in and to the Company Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Company and its suppliers.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Company Solution or Documentation, or any part thereof.
    4. Use of Reports. Subject to the terms and conditions of this Agreement, Company grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 12.5), non-sublicensable license to use the Reports solely for Customer’s internal business purposes.
    5. 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 provided by Customer, including Authorized Users, relating to the Services.  Company will not identify Customer as the source of any such feedback.
    6. TP Data Provider. If set forth in an Order Form, Customer will have access to Product Regulatory Data.  Access to and use of the Product Regulatory Data is subject to the terms set forth in Exhibit A.
  4. Fees and Expenses; Payments
    1. Fees. In consideration for the access rights granted to Customer and the Services performed by Company under this Agreement, Customer will pay to Company the Fees.  Except as otherwise provided in an Order Form, 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 to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term.  Company will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Company has furnished such documentation for authorized expenses as Customer may reasonably request.  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.  Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
    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.
    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.
  5. Customer and Vendor Content
    1. Rights. Customer is solely responsible for any and all obligations with respect to the completeness, accuracy and quality of Customer Content and Vendor Content provided to Company by Customer (collectively, the “Content”).  Customer will obtain all third party licenses, consents and permissions needed for Company to use the Content to provide the Services.  Without limiting the foregoing, Customer will be solely responsible for obtaining from Vendors all necessary rights for Company to use the Content submitted by or on behalf of Customer for the purposes set forth in this Agreement.  Customer grants Company a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Content as necessary for purposes of providing and improving the Services, (b) to use the Customer Content in an aggregated and anonymized form to: (i) improve the Company Solution and Services, and Company’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent.  The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer.  All rights in and to the Customer Content not expressly granted to Company in this Agreement are reserved by Customer.
    2. Data Exchange. Using the Company Solution, Customer may elect to share certain Customer Content with Vendors it selects, and access certain Vendor Content from Vendors that elect to share it with Customer.  Customer acknowledges and agrees that Company is not responsible, and shall bear no liability, for Vendor’s access to and use of Customer Content and Customer’s access to and use of Vendor Content, and that Customer is solely responsible for any agreement with Vendor with respect thereto.
    3. Customer Warranty. Customer represents and warrants that any Content will not (a) infringe upon any third party’s rights; (b) misappropriate any trade secret; (c) be unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; and (e) otherwise violate the rights of a third party.
    4. Data and Security. Customer and its Authorized Users will be responsible for all changes to and/or deletions of Content and the security of all passwords and other Access Protocols required in order to access the Company Solution.  Customer will have the ability to export Reports and Content out of the Company Solution and is encouraged to make its own back-ups of the Reports and Content.
  6. 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 mutually executed statement of work (“SOW”).  The SOW 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 will incorporate the terms and conditions of this Agreement.  To the extent that a conflict arises between the terms and conditions of an SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the SOW expressly states that it supersedes specific language in the Agreement.
  7. Warranties and Disclaimers
    1. Limited Warranty. Company represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards.  Provided that Customer notifies Company in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Company will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Company’s option, refund the fees paid by Customer for the Services which gave rise to the breach.  Company further warrants to Customer that Company will use commercially reasonable efforts to operate the Solution free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Company Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Company Solution in combination with other products, equipment, software or data not supplied by Company; or (c) any modification of the Company Solution by any person other than Company or its authorized agents.  Provided that Customer notifies Company in writing of any breach of the foregoing warranty during the Term, Company will, as Customer’s sole and exclusive remedy, provide the support described in Section 2.2.
    2. Disclaimer.  THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Services, REPORTS AND Documentation ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE COMPANY SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.  COMPANY SHALL NOT BE RESPONSIBLE FOR, AND IS EXPRESSLY RELIEVED OF RESPONSIBILITY FOR ITS REASONABLE RELIANCE ON, ANY INACCURATE OR INCOMPLETE CONTENT PROVIDED TO IT HEREUNDER.  The company solution may be subject to limitations, delays and other communications problems inherent in the use of the internet, and company is not responsible for any delays, delivery failures or other damages resulting from such problems.
  8. Limitation of Liability
    1. Types of Damages. 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.
    2. Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY customer TO COMPANY DURING THE twelve (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.  IN NO EVENT WILL Company’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.  NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE CUSTOMER’S OBLIGATION TO PAY FEES OWED TO COMPANY HEREUNDER, OR breaches of section 3.2 or 9, or LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS, OR FOR DEATH OR PERSONAL INJURY.
    3. Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 8 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.
  9. Confidentiality
    1. Confidential Information. Confidential Information” means any nonpublic 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 Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Company.  The confidentiality terms set forth herein shall replace and supersede any prior non-disclosure agreement entered into between the Parties or their predecessors.
    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 Disclosing Party, 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 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.  At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
    3. Exceptions. The confidentiality obligations set forth in Section 9.2 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) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information.  In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights 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.
  10. Indemnification
    1. By Company. Company will defend at its expense any suit brought against Customer, 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 by any third party alleging that the Company Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America.  If any portion of the Company Solution becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Company Solution; (b) replace the Company Solution with non-infringing software or services which do not materially impair the functionality of the Company Solution; (c) modify the Company Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Company Solution and Documentation.  Notwithstanding the foregoing, Company will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (i) any use of the Company Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Company Solution in combination with other products, equipment, 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 (collectively, the “Exclusions” and each, an “Exclusion”).  This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
    2. By Customer. Customer will defend at its expense any suit brought against Company, 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 arising out of or relating to (a) an Exclusion, or (b) Company’s use of Content.  This Section 10.2 states the sole and exclusive remedy of Company and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
    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. Term And Termination
    1. Term.  This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”).  Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for the longer of one (1) year or the term stated on the Order From, unless earlier terminated in accordance with the Agreement.  Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either Party gives written notice of non-renewal to the other Party at least sixty (60) days prior to the expiration of the then-current term.
    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.
    3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each Party will comply with the obligations to return all Confidential Information of the other Party, as set forth in the Section 9; and (c) any amounts owed to Company under this Agreement will become immediately due and payable.  Sections 1, 3.2, 3.3, 3.5, 4, 7.2, 8, 9, 10, 11.3, 11.4, and 12 will survive expiration or termination of this Agreement for any reason.
    4. Reports.  For twenty (20) days after the end of the Term, as applicable, Company will make Reports available to Customer through the Company Solution on a limited basis, unless Company is instructed by Customer to delete such data before that period expires.
  12. Miscellaneous
    1. 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 Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Denver, Colorado for any lawsuit filed there against Customer by Company arising from or related to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
    2. Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
    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.
    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.
    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.
    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, Reports and Documentation.
    7. Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of Fees 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, 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.
    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.
    9. Notices. All notices required or permitted under this agreement must be delivered in writing, if to Company, by emailing info@smartwyre.com and if to Customer by emailing the Customer Point of Contact email address listed on the Initial Order Form, 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 Initial Order Form 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.
    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.
    11. 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.

 

DATA SECURITY ADDENDUM

This Data Security Addendum (“Addendum”) supplements the Master Services Agreement between the Parties (the “Agreement”).

  1. Compliance. Company shall comply with (a) all applicable legal requirements (federal, state, local and international laws, rules and regulations and governmental requirements) currently in effect and as they become effective, relating in any way to the privacy, confidentiality or security of Customer Content; (b) all applicable industry standards concerning privacy, data protection, confidentiality or information security, and (c) applicable privacy policies, statements or notices that are provided to Companying writing (collectively referred to as “Privacy Laws”).
  2. Security Program. Company agrees and represents that it currently maintains information protection practices and procedures (“Security Program”) that comply with industry standard, or better, practice and applicable Privacy Laws.  Company’s Security Program includes, at a minimum:
    • Appropriate administrative, technical, and physical safeguards and other security measures designed to ensure the security and confidentiality of Customer Content;
    • A security design intended to prevent any compromise of its own information systems, computer networks or data files by unauthorized users, viruses, or malicious computer programs which could in turn be propagated to Customer Parties; and
    • Appropriate internal practices including, but not limited to, encryption of data in transit; using appropriate firewall and antivirus software; maintaining these countermeasures, operation systems and other applications with up-to-date virus definitions and security patches; appropriate logging and alerts to monitor access controls and assure data integrity and confidentiality; installing and operating security mechanisms in the manner intended to avoid disruption of business operations; permitting only authorized users access to systems and applications; and preventing unauthorized access to systems via the Company’s networks and access codes.
  3. Training and Supervision. Company represents that it maintains adequate training and education programs to ensure that its employees and any others acting on its behalf are aware of and adhere to its Security Program.  Company shall exercise necessary and appropriate supervision over its employees and any others acting on its behalf to maintain appropriate confidentiality and security of Customer Content.
  4. Third Parties. Company will ensure that any third party it may use to perform any of the Services, including but not limited to data storage services, shall have a Security Program that complies with industry standard, or better, practices and applicable Privacy Laws.  As of the Effective Date of the Agreement, Company uses Microsoft Azure as its Monitoring Service Provider, subject to Microsoft Azure’s standard terms and practices.  Company reserves the right to switch to a different Monitoring Service Provider upon written notice to Customer.
  5. Mobility and Transfer of Data. All electronic data transfers of Customer Content must be via secure FTP or other Customer approved protocol and/or in approved encrypted form.
  6. Segmentation. Company warrants that all Customer Content is maintained so as to preserve segmentation of Customer Content from data of others.

 

Exhibit A
TP DATA PROVIDER terms

The product information displayed in the Product Regulatory Data is provided ” AS IS,” without warranty express or implied, and for information purposes only.  Although the TP Provider endeavors to present current and accurate information, search results contain information created and maintained by a variety of external sources that may not be current or complete.  The TP Provider does not control, monitor or guarantee the timeliness or accuracy of the information provided by such external sources.  Inclusion of a product in the Product Regulatory Data does not constitute endorsement of that product.  It is your responsibility to review the official manufacturer product label information, applicable regulations, and otherwise research the accuracy, completeness and usefulness of all information, claims and opinions contained in the Product Regulatory Data.  In no event will the TP Provider or its data providers be responsible or liable directly or indirectly for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any information contained in the Product Regulatory Data, including information that is outdated or incorrect.  The Product Regulatory Data is provided under a limited, non­exclusive license, and may not be redistributed or used to develop a stand-alone database.  Further, the Product Regulatory Data may include materials covered by registered copyrights and trademarks.  All rights not expressly granted herein are reserved by the intellectual property owners.  In no event shall the liability of the TP Provider, its officers, directors and agents hereunder exceed $100 in the aggregate.

 

 

Exhibit B
SUPPORT (SLA)
  1. DEFINITIONS. The following capitalized terms will have the definitions set forth below:
    • Force Majeure” means any act, event, or occurrence beyond Company’s reasonable control, including, without limitation, issues arising from bugs or other problems in the software, firmware or hardware of Company’s suppliers, outages or issues with upstream providers or network carriers, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, and acts of terror.
    • Normal Business Hours” means 5:00 a.m. to 8:00 p.m. Mountain Time Monday through Friday, excluding holidays.
    • Scheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Company Solution due to planned system maintenance performed by Company. Company will exercise reasonable efforts to perform scheduled system maintenance between the hours of 10:00 p.m. and 3:00 a.m. Mountain Time.  Company will provide Customer with reasonable prior notice of such Scheduled Downtime.
    • Total Monthly Time” means the total minutes in the relevant calendar month less Scheduled Downtime. For any partial calendar month during which Customer subscribes to the Company Solution, availability will be calculated based on the entire calendar month, not just the portion for which Customer subscribed.
    • Unscheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which the Customer is not able to access the features and functions of the Company Solution, other than Scheduled Downtime, as defined above.  Unscheduled Downtime shall not include any period during which the Company Solution is unavailable as a result of (i) non-compliance by Customer with any provision of the Agreement or this SLA; (ii) incompatibility of Customer’s equipment or software with the Company Solution; (iii) actions or inactions of Customer or third parties; (iv) Customer’s use of the Service after Company has advised Customer to modify its use of the Company Solution, if Customer did not modify its use as advised; (v) acts or omissions of Customer or Customer’s employees, agents, contractors, or vendors, or anyone gaining access to the Company Solution by means of Customer’s passwords or equipment; (vi) performance of Customer’s systems or the Internet; (vii) any systemic Internet failures; (viii) network unavailability or Customer’s bandwidth limitations; or (ix) Scheduled Downtime.
    • System Availability” means, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the Total Monthly Time, and thereafter dividing the difference so obtained by the Total Monthly Time. Represented algebraically, System Availability for any particular calendar month is determined as follows:
  2. System Performance
    • System Availability: Company will undertake commercially reasonable measures to ensure that System Availability equals or exceeds ninety-nine point nine percent (99.9%) during each calendar month (the “Service Standard”).
    • Access to Support; Response Times: Customer may report Unscheduled Downtime at any time (“24x7x365”) by sending Company an e-mail to support@smartwyre.com.  During Normal Business Hours, Company will exercise commercially reasonable efforts to respond to reports of Unscheduled Downtime within 15 minutes of each such report.
    • System Monitoring and Measurement: Company uses a third party service provider (“Monitoring Service Provider”) to monitor System Availability on an ongoing basis.  All measurements of System Availability will be calculated on a monthly basis for each calendar month during the Term based on the records of such Monitoring Service Provider.  The Monitoring Service Provider’s records regarding System Availability will be final and each party agrees not to dispute such records.  As of the Effective Date of the Agreement, Company uses Microsoft Azure as its Monitoring Service Provider; provided, however that Company reserves the right to switch to a different Monitoring Service Provider upon written notice to Customer.
  3. MASTER DATA SERVICES PERFORMANCE
    • Access to Master Data Services Operations Team; Response Times: Customer may report new Vendor Content or changes to Vendor Content at any time (“24x7x365”) by sending Company an e-mail to support@smartwyre.com.  Company will exercise commercially reasonable efforts to add or amend Vendor Content, as applicable, to the Company Solution within the following intervals of its receipt thereof.
Vendor Content Response Time
Price Change 24 Normal Business hrs
New Price List 48 Normal Business hrs
New Rebate Program – Local Program 72 Normal Business hrs
New Rebate Program – National Program 72 Normal Business hrs

 

Between August 1 and December 31, these response times are extended as follows due to increased seasonal volumes of new Vendor Content:

 

Vendor Content Response Time
Price Change 48 hrs
New Price List 96 hrs
New Rebate Program – Local Program 4 Business Days
New Rebate Program – National Program 10 Business Days

 

  • New Vendor Configurations: As of the Effective Date, the Company Solution is compatible with currently known Vendor rebate and incentive programs.  In the event that new Vendor Content requires the Company to develop new software features or capabilities, Company will immediately notify Customer and provide an estimate of the time required for necessary development.
  1. Customer Requirements. Customer is responsible for maintenance and management of its computer network(s), servers, and software, and any equipment or services related to maintenance and management of the foregoing.  Customer is responsible for correctly configuring its systems in accordance with any instructions provided by Company, as may be necessary for provision of access to the features and functions of the Company Solution and Services.