Master Services Agreement
This MASTER SERVICES AGREEMENT (the “Agreement”) is made and entered into, by and between Ember IT, LLC (“EMBER”), a Pennsylvania limited liability company headquartered at 1004 W 9th Ave Suite 115, King of Prussia, PA 19406, and the Client (together with the Client, the “Parties” and each a “Party”), as outlined below.
I. Services. This Agreement states the terms and conditions under which EMBER will provide Client with Services as specified in one or more Statements of Work and Client’s obligations with respect to such Services. As used herein: (1) “Services” means any one or more of the services specified in a Statement of Work; and (2) “Statement of Work” means a document referring to this Agreement that: (a) specifies services to be provided to Client under this Agreement; (b) provides scheduling and payment terms for the services specified; (c) states additional terms and conditions applicable to those services, if any; and (d) is executed by both parties. The parties acknowledge that, as part of the implementation process, certain variations in Services that are not reflected in Statements of Work may be required to meet Client’s needs and expectations. Either party may request amendment of any one or more Statements of Work to reflect these variations at any time. Client’s use of Services delivered by EMBER that vary from Statements of Work shall constitute Client’s agreement that each of those Services, as provided, is subject to the terms and conditions of this Agreement in all respects.
II. Equipment. The Services may include EMBER’s assistance in acquiring equipment to be used in conjunction with the Services, managing equipment previously acquired by Client, or both. The following terms apply in these circumstances:
1. Acquisition. At Client’s request, EMBER shall use reasonable efforts to facilitate Client’s arrangements to lease or finance equipment. If EMBER is required to purchase equipment for Client under any one or more Statements of Work, Client shall pay EMBER for such equipment: (a) in advance, without first requiring EMBER to submit any order or enter into any agreement on Client’s behalf; or (b) as EMBER otherwise reasonably requests.
2. Equipment Warranties. Warranties, if any, made with respect to the equipment leased or purchased by Client under this Agreement are made solely by its manufacturer, vendor, or lessor. EMBER makes no warranties whatsoever as to any equipment.
3. Acknowledgement. Client acknowledges that the delivery and installation of equipment may be a prerequisite to EMBER’s delivery of any one or more of the Services. EMBER may treat Client’s compliance with its obligations under agreements concerning such equipment, including the payment obligations, as: (a) a condition precedent to EMBER’s performance hereunder; and (b) a material obligation of Client, as part of Client’s overall obligation to cooperate with EMBER in its efforts to provide Services hereunder as agreed.
4. Maintenance. EMBER shall manage and maintain Client’s equipment as any one or more Statements of Work specify. Client hereby authorizes EMBER to submit warranty claims in Client’s name for each item of equipment that EMBER manages on Client’s behalf.
III. Client’s Obligations.
1. Client Responsibility. Client shall be solely responsible for all transmissions, use of, and all content distributed, copied, created, or obtained via EMBER’s Services, in whole or in part, regardless of whether intentional or unintentional or made with or without Client’s authorization or in violation of any internal Client policy.
2. Unlawful Activity. Client will not engage in any unlawful or inappropriate activity, including without limitation misappropriation of trade secrets, wire fraud, invasion of privacy, defamation, or transportation or sale of tobacco, controlled substances and firearms. Without limiting the foregoing, Client will not cause or contribute to interference or disruption with third-party users, services or equipment, including but not limited to distribution of unsolicited advertising, spam chain letters or other mass emails, harassment, improper impersonation, identity theft, propagation of computer viruses, or unauthorized entry to any computer, system, device, or network. In addition, and without limiting the foregoing, Client will not (a) violate privacy rights, including but not limited to collecting and distributing information about persons without their permission and in violation of applicable law; (b) intentionally omit, delete, forge, or falsify address information or modify transmission of headers, return address information, IP addresses, or take any other action intended to destroy or modify the identity or contact information of a user, sender, or recipient.
3. Terms of Service Compliance. Client will comply with the terms of service, terms and conditions, end-user license agreement or acceptable use policy (“Terms of Service”) of any website or network-enabled location that Client visits via EMBER services, in whole or in part. Client accepts the Terms of Service of the vendors and third parties listed on https://emberit.com/agreements and authorizes EMBER to accept on Client’s behalf the Terms of Service of any third-party service or product employed by EMBER.
4. Robo-Calling. In connection with VoIP service, violations of this Agreement include but are not limited to operating predictive dialers, continuous call forwarding, excessive calling to high-cost termination locations, auto-dialing, fax or voice blasting/broadcasting, telemarketing, call centers, any atypically high-volume calling operations, or violation of any laws.
5. Cooperation. Client shall support EMBER in maintaining the integrity of the network and will cooperate with EMBER in enforcing this Agreement. Client further agrees that it shall affirmatively notify EMBER of any material violations of this Agreement of which Client becomes aware.
6. Violations. Users who violate systems or network security may incur criminal or civil liability. EMBER will cooperate fully with all investigations of violations of systems or network security, including but not limited to cooperation with law enforcement authorities in the investigation of criminal violations.
7. Monitoring. Client acknowledges that EMBER has no obligation to monitor Services in any way unless otherwise specified by this Agreement, but that EMBER has a right to monitor its networks or components of the Services from time to time and to disclose any information as necessary pursuant to Section VIII.6 below. EMBER may refuse to post, distribute, or remove any information or materials, in whole or in part, that, in EMBER’s sole discretion, is unacceptable, undesirable or in violation of law.
8. Notifications. Client shall notify EMBER in writing of each change in or to Client’s systems that relates to the Services at the earliest practicable time, and whenever possible, by no later than seventy-two (72) hours prior to the time at which that change is scheduled to occur.
9. Cyberattack Insurance. Client shall carry first-party insurance coverage for cyberattacks and ransomware with a minimum policy limit of one million dollars ($1,000,000.00).
IV. Licenses, Rights of Access, Authorization.
1. Client Access. EMBER hereby authorizes Client, during the Term, to access and use solely those portions of EMBER’s systems that are each required to: (a) access and use the Services as this Agreement permits; and (b) exercise its rights and discharge its obligations as specified in this Agreement. Client’s rights of access are non-exclusive, nontransferable, and may be used solely for its internal business purposes.
2. EMBER Access. Client grants EMBER the non-exclusive right, during the Term, to access and use its systems, facilities and such information in Client’s possession, custody, or control, as EMBER may reasonably request for the sole and limited purposes of: (a) providing supporting, administering and managing any one or more of the Services, (b) exercising its rights and discharging its obligations hereunder and (c) complying with applicable law. EMBER may state, in lawful promotions, that Client uses the Services.
3. No Reverse Engineering; No Other Rights of Access or Use; No Transfers. Neither Party shall reverse engineer, disassemble or decompile, modify, copy or create derivative works from any one or more products, services, resources, or any features, functions, or components of any of the foregoing made available to it by the other Party. Each Party acknowledges and agrees that: (a) its rights of access to the other’s systems arise solely pursuant to this Agreement; (b) it has no other rights, title or interest in or to, or any other right to access or use, the other Party’s products, services, resources, or data; and (c) the Agreement does not transfer to either Party any proprietary or other interest in the present or any future version of, or successor to, any product, service, other intellectual property, data, or resource owned by the other Party. In addition, Client will not, and will not permit unaffiliated third parties to, (x) use the Services on a time-sharing, outsourcing, service bureau, hosting, application service provider or managed service provider basis; (y) alter any aspect of any software or equipment used by EMBER to provide the Services; or (z) assign, transfer, distribute, or otherwise provide access to any of the Services to any unaffiliated third party or otherwise use any Product with or for the benefit of any unaffiliated third party.
V. Fees & Payment.
1. Fees. Client shall pay EMBER’s fees for Services in accordance with the Statements of Work specifying those Services and this Agreement.
2. Expenses. Unless a Statement of Work otherwise provides, Client shall reimburse EMBER for: (a) its actual, reasonable, out-of-pocket travel and other expenses incurred by EMBER in performing hereunder; and (b) as EMBER may request, increases in fees charged by vendors unaffiliated with EMBER for the products and services those vendors provide that are part of, or that Client uses in conjunction with, the Services.
3. Taxes. Client shall either: (a) pay all taxes and surcharges on the Services, excluding taxes based on EMBER’s income; or (b) provide EMBER with proof of Client’s tax-exempt status, in a form reasonably satisfactory to EMBER. EMBER reserves the right to amend invoices and tax charges and surcharges made out to Client to comply with this provision and applicable law.
4. Invoices; Payments; Payment Disputes.
(a) EMBER may issue invoices for fees for services rendered, related expenses and taxes as this Agreement and each Statement of Work permit. Unless a Statement of Work otherwise provides, EMBER may issue invoices to Client for: (i) recurring monthly charges, in advance of EMBER’s provision of Services; (ii) usage-based charges, at any time after those charges are incurred; (iii) phased deployments, in appropriate increments as determined by EMBER; and (iv) for the full amount of any one or more unpaid charges for the lease or purchase of equipment in connection with this Agreement.
(b) Client shall either pay, or if warranted, dispute invoices pursuant to Section V.4(d) of this Agreement, within thirty days of the invoice date, except that undisputed charges invoiced pursuant to Section V.4(a)(iv) of this Agreement, if any, shall be payable upon receipt of the invoice therefor.
(c) Client shall pay all undisputed amounts set forth in EMBER’s invoices issued under this Agreement in full, with no deductions of any kind. Whenever fees for Services include deposits, advance payments, minimum monthly payments, or payments for other vendors’ products or services that are part of, or that Client uses in conjunction with, the Services, EMBER may: (i) treat the receipt of payment from Client as a condition precedent to providing Services, and where applicable, delivering equipment; and (ii) apply those payments to any undisputed unpaid charge set forth in an invoice issued hereunder.
(d) Payment Disputes.
(i) Provided that it has a good faith basis for doing so, Client may dispute any item on each invoice issued by EMBER hereunder by sending a written communication to EMBER: (a) specifying each item stated in the invoice that Client believes may be incorrect; and (b) setting forth Client’s good faith basis for its position that each item specified may be incorrect.
(ii) Client: (a) acknowledges that it may not be feasible to verify facts or circumstances pertinent to billing disputes that are initiated more than thirty (30) days after the issuance of the invoice in question (“Delayed Billing Disputes”); and (b) agrees that EMBER may decline to adjust fees due hereunder on the basis of Client’s Delayed Billing Disputes. If an invoice contains disputed and undisputed items, Client agrees to pay each undisputed item set forth in that invoice in accordance with the terms of this Agreement. EMBER may construe objections to unpaid invoices made by Client without the information specified above, without payment of undisputed amounts, or in any other manner other than that specified above as a Material Breach (as defined below) of Client’s obligation to pay for Services as agreed.
(e) EMBER may, in the event that Client does not pay or dispute any invoice for Services rendered as this Agreement requires, suspend the operation of any one or more Services by notifying Client, in writing and at least five (5) days in advance, that: (i) one or more Services will be suspended for non-payment; and (ii) the last date on which Services will be provided. EMBER shall have no liability for any loss, damage, or disruption that may result from suspensions of Services pursuant to this provision.
(f) EMBER may, upon written notice, charge Client interest, at the rate of one and one-half percent (1.5%) per month or the highest interest rate permitted by law, on any one or more undisputed charges set forth in any invoice that remain unpaid more than thirty (30) days after the date on which that invoice was issued. Client shall pay interest charged to it in accordance with this Agreement.
(g) Client agrees to pay EMBER’s actual expenses reasonably incurred in collecting payments due from Client under this Agreement, including collection agency fees and attorney’s fees.
VI. Term and Termination.
1. Term. The term of this agreement (the “Term”) shall be the period between the Effective Date and the last day of the first period of six (6) consecutive months during which EMBER provided no Services to Client.
2. Termination by Client. Client may terminate the Agreement if EMBER breaches any one or more material provisions of this Agreement (any such breach, a “Material Breach”), and EMBER fails to cure the breach within thirty (30) days of receipt of a written notice of breach from Client.
3. Termination by EMBER.
(a) EMBER may terminate the Agreement or any one or more Statements of Work: (i) if Client commits a Material Breach, and Client fails to cure that breach within thirty (30) days of receipt of a written notice of breach from EMBER; (ii) if Client breaches its payment obligations hereunder, and Client fails to cure that breach within five (5) days of receipt of a written notice of breach from EMBER; or (iii) immediately, if Client, any person or entity acting on Client’s behalf, or any person or entity who Client permits to access its systems, creates a substantial risk to EMBER’s continuing ability to provide services to its customers as determined in the exercise of EMBER’s reasonable business judgment. While Client is in breach of a Statement of Work and during any associated cure period, Client’s remedies under the service-level agreements associated with that Statement of Work, if any, are suspended. Option at the end of a Statement of Work.
(b) EMBER may terminate this Agreement upon written notice if Client: (i) becomes the subject of a voluntary or involuntary proceeding under Title 11 of the United States Code (the “Bankruptcy Code”); (ii) becomes insolvent or commits any act of bankruptcy under the Bankruptcy Code or any state’s insolvency law; (iii) makes an assignment for the benefit of, or enters into a composition with, its creditors, or appoints or consents to the appointment of a receiver or other custodian for all or a substantial part of its property; or (iv) fails to meet any significant financial obligation, including the financial obligations imposed by this Agreement.
4. Effect of Termination or Expiration.
(a) Upon the termination or expiration of any Statement of Work, all rights of access to or use of the Services specified in that Statement of Work shall cease. Upon the termination or expiration of this Agreement, each Party agrees that it will cease holding itself out as having a contractual relationship with the other Party.
(b) Except as specifically set forth in this section, neither the termination of this Agreement nor any Statement of Work shall excuse or release Client from making any or more payments that become due under the unexpired portion of their respective terms, including payments to third-party providers. If this Agreement or any Statement of Work is terminated prior to the expiration of its then-current term, for any reason other than EMBER’s uncured Material Breach thereof, Client shall pay: (i) any and all early termination fees and other payments imposed by other vendors, either on Client or on EMBER on Client’s behalf, arising from the early termination, and (ii) 50% of the fees for Services in the unexpired portion of the then-current term of this Agreement or each terminated Statement of Work. Each party shall pay all undisputed amounts due to the other hereunder within thirty (30) days of the termination or expiration of this Agreement or any one of more Statements of Work. The Parties acknowledge that no payment required by this section is or should be construed to be a penalty.
(c) Within ten (10) days of the expiration or termination of this Agreement or applicable Statement of Work (“Post-Contract Equipment Grace Period”), Client shall (i) return all EMBER equipment located in Client’s facilities in satisfactory condition; and (ii) contact EMBER to make mutually acceptable arrangements for the return or other disposition of any and all Client equipment then in EMBER’s possession, custody or control. At any time after the expiration of the Post-Contract Equipment Grace Period, EMBER may, in its sole discretion, without prejudice to any other claims, rights, or remedies it may then have: (a) impose a fee for the handling, storage, and protection of Client equipment or data left in EMBER’s possession, custody or control, in addition to whatever fees Client may then owe for Services rendered hereunder; (b) return that equipment to Client; or (c) engage a vendor to store and safeguard Client’s equipment. Any arrangements that EMBER may make with respect to Client’s equipment after the expiration of the Post-Contract Equipment Grace Period shall be at Client’s expense. Client shall bear any and all risk of loss of, or damage to, equipment, whatever data may then be stored on that equipment, or both, that Client permits to remain in EMBER’s possession, custody, or control after the expiration of the Post-Contract Equipment Grace Period. Other than as specifically set forth above or in Statements of Work, EMBER shall have no obligations or responsibilities in connection with any Client equipment or data after the expiration of the Post-Contract Equipment Grace Period. To the fullest extent permitted by law, EMBER may refuse to relinquish, transfer, or provide access to Client equipment or data until such fees and/or all invoices are paid. Except as a Statement of Work may specify, after expiration or termination of this Agreement or applicable Statement of Work, EMBER shall have no obligations or responsibilities in connection with any Client equipment other than those set forth above.
(d) Upon receipt of a notice of termination or notice of intention not to renew of any one or more Statements of Work issued hereunder, EMBER shall provide Client with a letter describing the process for decommissioning the Services specified in each terminated or expiring Statement of Work, and where applicable, transitioning those services to a new environment (the “Decommission Letter”). As used herein, “Standard Decommissioning Services” means any one or more of the services EMBER provides to Client as specified in its Decommission Letter. The parties shall work together to accomplish the processes described in the Decommission Letter efficiently and in accordance with Client’s reasonable instructions. EMBER shall continue to provide Services and Client shall pay for those Services in accordance with the terms and conditions of this Agreement until the date specified in the notice of termination or notice of intention not to renew or another date agreed to by the parties. After receipt of a notice of termination or notice of intention not to renew any one or more Statements of Work: (a) EMBER may provide Client with transitional information technology services, other than Standard Decommissioning Services, as Client may reasonably request in writing (any one or more such Services, “Special Transition Services”); and (b) Client shall pay EMBER for Special Transition Services at EMBER’s then-current standard rate for the services requested or on such other terms as the Parties may then agree to in writing. Notwithstanding the foregoing, in the event that on the date on which EMBER receives notice of termination or notice of intention not to renew, Client has not paid any undisputed amount due under this Agreement, EMBER shall have the right to treat either payment of that amount or Client’s execution of a written agreement reasonably acceptable to EMBER for the payment of that amount as a condition precedent to any one or more of its obligations under this Section VI.4(d). For the avoidance of doubt, Section V.4 of this Agreement shall apply with respect to fees for Special Transition Services.
(e) Neither party shall disparage or criticize the other party or its members, managers, shareholders, directors, officers, employees, agents, products or services in any communication at any time.
VII. Representations and Warranties.
1. EMBER represents and warrants as follows:
(a) EMBER has the full power, capacity and authority to enter into and perform the obligations in this Agreement and to make the grant of rights contained herein, and EMBER’s performance of the Services does not violate or conflict with any agreement to which EMBER is a party;
(b) Neither EMBER nor any of its personnel are listed on the United States Office of Foreign Assets Control’s Specially Designation Nationals list;
(c) There is no pending or threatened litigation that would have a material adverse impact on EMBER’s performance under this Agreement;
(d) EMBER’s performance of the Services shall comply in all material respects with all applicable local, state, federal, and international laws, ordinances, rules, regulations, and court orders; and
(e) EMBER will not knowingly infringe on any person’s or entity’s U.S. copyright, patent or trade secret in existence as of the Effective Date.
2. Client represents and warrants as follows:
(a) Client has the full power, capacity and authority to enter into and perform the obligations in this Agreement and to make the grant of rights contained herein, and Client’s performance of its obligations does not violate or conflict with any agreement to which Client is a party;
(b) Neither Client nor any of its personnel are listed on the United States Office of Foreign Assets Control’s Specially Designation Nationals list;
(c) There is no pending or threatened litigation that would have a material adverse impact on Client’s performance under this Agreement;
(d) Client’s use of the Services and performance of its obligations under this Agreement shall comply in all material respects with all applicable local, state, federal, and international laws, ordinances, rules, regulations, and court orders, and will not infringe upon the intellectual property rights of any third party; and
(e) Client (a) owns or has the legal right, as applicable, to copy, display, publish, sublicense, distribute, perform, process, or otherwise use with the Services each item of content, information, personal data, software and hardware that it utilizes, transfers, or makes available on, through, or otherwise using any one or more of the Services; and (b) has the legal right to use every service and facility that it accesses or uses in conjunction with the Services.
(f) Client represents and warrants that it is not a national, provincial, federal, state, county or municipal government or any governmental agency, department, subdivision, instrumentality, body, corporation or other arm or extension of any of the foregoing and, in executing and delivering this Agreement and receiving the Services hereunder, is not acting under the authority or color of authority of any of the foregoing.
(g) Client represents and warrants that neither it, nor any of its Affiliates or agents are on any list maintained by the United States Treasury Department’s Office of Foreign Assets Control of persons, entities, or prohibited or restricted jurisdictions. Client agrees that it will promptly notify EMBER in writing if Client becomes aware of any changes to this warranty or if to Client’s knowledge any change is threatened. In such event, EMBER shall have the ability to terminate this Agreement without affording the Client an opportunity to cure.
VIII. Confidential Information.
1. Confidential Information – Defined. “Confidential Information” means all information supplied by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) that is generally regarded in the Disclosing Party’s industry as confidential or proprietary, or that the Receiving Party reasonably should have known would be regarded by the Disclosing Party as confidential or proprietary, including, without limitation, (i) source code, prices, trade secrets, databases, designs and techniques, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials; and (ii) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, information relating to Client’s customers, third party providers, business partners, and personnel, personal data, and unpublished financial information, including information concerning revenues, profits and profit margins. Confidential Information will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary.” Confidential Information shall not include information that: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement, obligation or duty; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party.
2. Treatment of Confidential Information. Each Party recognizes the importance of the other’s Confidential Information. In particular, each Party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither Party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Accordingly, the Receiving Party will not disclose any, and will hold in strictest confidence all, Confidential Information of the Disclosing Party, and will use and permit use of Disclosing Party’s Confidential Information solely for the purposes of performing this Agreement and as otherwise authorized herein. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance, which shall not be less than the standard of care imposed by applicable laws and regulations relating to the protection of such information and, in the absence of any legally imposed standard of care, the standard shall be that of a reasonable person under the circumstances. The Receiving Party may disclose or provide access to its responsible employees, agents, and independent contractors who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder. The Receiving Party currently has, and for so long as it possesses Confidential Information of the Disclosing Party, it will maintain in effect and enforce, rules and policies to protect against access to or use or disclosure of Confidential Information, including without limitation written instruction to and agreements with employees, agents, and independent contractors who are bound by an obligation of confidentiality no less restrictive than set forth herein to ensure that such employees, agents, and independent contractors protect the confidentiality of Confidential Information. The Receiving Party will require its employees, agents, and independent contractors not to disclose Confidential Information to third parties, including without limitation customers without the Disclosing Party’s prior written consent; and will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect all proprietary rights in and ownership of its Confidential Information.
3. Client Data. With respect to any data provided or transmitted by Client to EMBER in connection with EMBER’s provision of the Services, including, but not limited to, Client’s data included in any written or printed summaries, analyses or reports generated in connection with the Services (such data, collectively, the “Client Data”) during the term of this Agreement and the Services, EMBER shall employ and maintain reasonable and appropriate safeguards designed to: (a) reasonably protect all Client Data in EMBER’s possession from unauthorized use, alteration, access or disclosure; (b) detect and prevent against a Security Breach (as defined below); and (c) ensure that EMBER’s employees and agents are appropriately trained to maintain the confidentiality and security of Client Data in EMBER’s possession.
4. Client Personal Information. Confidential Information and Client Data may include information that identifies, relates to, describes, is reasonably capable of being associated with or linked to a particular individual, whether directly or indirectly (“Personal Information”). Client is responsible for the lawfulness of any such Personal Information and the receipt, use, and processing of it under the Agreement. Client represents and warrants that, where it provides Personal Information to EMBER or requests EMBER collect or process such information, it: (i) has complied with any applicable laws relating to the collection or provision of such information, (ii) possesses any consents, authorizations, rights and authority required to transfer or permit EMBER to collect, receive, or access any Personal Information for the Services, and (iii) to the extent required by applicable law, has informed the individuals of the possibility of EMBER processing their Personal Information on Client’s behalf and in accordance with its instructions.
5. Security Breach. EMBER agrees to notify Client within seventy-two (72) hours upon becoming aware of a confirmed use or disclosure of Confidential Information in violation of this Agreement (a “Security Breach”). A Security Breach shall be treated as discovered as of the first day on which it is actually known to EMBER.
6. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information or other information of the Disclosing Party in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order or requirement and prior to disclosing Confidential Information or other information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing, if permitted by law, and, if possible, the Receiving Party will provide the Disclosing Party notice prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information or other information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information or other information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures.
7. Return of Confidential Information. On the Disclosing Party’s written request or upon expiration or termination of this Agreement for any reason, the Receiving Party will promptly: (i) return or destroy, at the Disclosing Party’s option, all originals and copies of all documents and materials it has received containing the Disclosing Party’s Confidential Information; and (ii) deliver or destroy, at the Disclosing Party’s option, all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by the Disclosing Party or prepared under its direction, or at its request from the documents and materials referred to in subparagraph (i), and provide a written statement signed by a duly authorized officer or agent to the Disclosing Party certifying that all documents and materials referred to in subparagraphs (i) and (ii) have been delivered to the Disclosing Party or destroyed, as requested by the Disclosing Party.
8. Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or in equity. EMBER and Client agree that any violation of Section VIII shall be a Material Breach of this Agreement and shall entitle Client or EMBER to immediately terminate this Agreement for breach without penalty upon notice to the other Party, and such termination shall be without prejudice to any other right or remedy the other Party may be entitled, either at law, in equity, or otherwise.
IX. Intellectual Property Rights.
1. Contributed Materials. Each of EMBER and Client possess certain pre-existing and/or separately developed tangible materials in print, graphical, electronic or other form which materials they own or license from third parties and which should therefore be treated as proprietary and trade secrets by the other Party. EMBER and Client are likely to contribute portions of such materials to the Services under this Agreement (the “Contributed Materials”). Each Party exclusively retains all intellectual property rights (including patents, trademarks and copyrights), proprietary rights (including trade secrets) and moral rights (including, rights of attribution and authorship) throughout the world in and to its respective Contributed Materials and all derivative works and improvements to such Contributed Materials, as each of those terms is defined and applied under Title 17 and Title 35 U.S.C. Each Party hereby grants to the other such limited license rights in and to its respective Contributed Materials as are necessary to permit the other Party to perform its obligations and exercise its rights under this Agreement.
2. Developed Materials; Deliverables. The Services may require that EMBER develop (i) derivative works or improvements (as each of those terms is defined and applied under Title 17 and Title 35 U.S.C.) of one or more items of Contributed Materials of the Client or (ii) one or more programs, databases, interfaces, tools, bridges, reformatted data sets and/or data feeds related to or based on but separate from and independent of the Client Contributed Materials (collectively, “Developed Materials”). If so created, any such Developed Materials, as between EMBER and Client, shall be owned by EMBER. All Contributed Materials, Developed Materials or any derivative works or improvements of any of them delivered by EMBER for Client acceptance, whether provided separately or linked, bundled, embedded or otherwise incorporated into one another, are referred to in this Agreement as “Deliverables.” Each Party shall continue to own the intellectual property rights in and to their respective components of the Deliverables; provided, to the extent any Client Contributed Materials are incorporated into the Services performed by EMBER, EMBER shall hold the perpetual right, without obligation to Client, to continue to make use of such Client Contributed Materials as part of the Services offered by EMBER to all its Clients.
1. Mutual Indemnity. Each party (“Indemnifying Party”) will defend, indemnify, and hold harmless the other party and its directors, managers, officers, agents, employees, members, shareholders, subsidiaries and successors in interest (collectively, the “Indemnified Party”) from and against any claim, action, proceeding, liability, loss, fine, sanction, damage, cost, or expense (including, without limitation, attorneys’ fees, experts’ fees and court costs), arising out of any claim by a third party related to (i) the Indemnifying Party’s breach of its covenants, representations and warranties as set forth herein; (ii) any grossly negligent action, or grossly negligent failure to act when action was required by this Agreement, of the Indemnifying Party that causes any injury to any person or persons or damage to tangible property; (iii) the Indemnifying Party’s failure to comply with any applicable laws; and/or (iv) any infringement of a third party’s intellectual property rights owing to any Services provided by the Indemnifying (collectively, (i)-(iv) above, “Claim(s)”), including the payment of all amounts that a court or arbitrator awards or that Indemnifying Party agrees to in settlement of any Claim(s) as well as any and all reasonable expenses or charges as they are incurred by the Indemnified Party or any other party indemnified under this Section in cooperating in the defense of any Claim(s). Indemnifying Party shall not enter into any stipulated judgment or settlement that purports to bind the Indemnified Party without the Indemnified Party’s express written authorization, which shall not be unreasonably withheld or delayed.
2. Indemnity Notice and Defense. The Indemnified Party shall provide written notice, at the earliest reasonable time, of each claim for which it seeks indemnification from the Indemnifying Party. The Indemnifying Party may control and direct the investigation, preparation, defense and settlement of the claim. The Indemnified Party shall provide the Indemnifying Party with assistance in the defense or settlement of the claim, as it may reasonably request. The Indemnifying Party shall not agree to or enter into a settlement or compromise that imposes any liability or obligation on the Indemnified Party without the Indemnified Party’s prior written approval. The Indemnified Party may, at its own expense, retain counsel of its own choosing and participate in the defense of any such claim.
3. Modification. If any one or more of the Services becomes, or EMBER has reason to believe that any one or more of the Services are reasonably likely to become, the subject of a Claim, EMBER may, at its option: (a) obtain a license or other agreement at no cost to Client permitting Client to continue its use of each of the Services involved in any one or more Claims; (b) modify each such Service, maintaining comparable functionality and performance, so that it is not, or no longer appears to be, the subject of any one or more Claim; (c) substitute other services for each of the Services that is or appears to be the subject of any one or more Claim; or (d) terminate each Statement of Work calling for Services that are involved, or appear to be involved, in any one of more Indemnified Claims upon written notice, whereupon Client shall immediately terminate all further use of the Services specified in that notice. In the event of termination pursuant to this provision, EMBER shall credit Client’s account in the amount of the pro rata portion of the fees Client has then actually paid to EMBER to obtain use of the terminated Services in the unexpired portion of the then current term of the pertinent Statements of Work.
XI. Limitation of Liability.
1. AS A MATERIAL CONDITION OF EMBER’S AGREEMENT TO PROVIDE THE SERVICES, CLIENT AGREES THAT EMBER WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES OR OTHER SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER OR EMBER’S FAILURE TO PROVIDE THE SERVICES.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION XI.1, EMBER SHALL NOT HAVE ANY LIABILITY FOR THE FOLLOWING: LOSS OF REVENUE, INCOME, PROFIT, SAVINGS, ASSETS, DATA, SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR THE RECOVERY OF SUCH, LOSS OF BUSINESS OPPORTUNITY OR GOODWILL, HARDWARE OR SOFTWARE FAILURES CAUSED BY THIRD-PARTY MANUFACTURERS AND PUBLISHERS, OR BUSINESS INTERRUPTION OR DOWNTIME OR THE COST OF SUBSTITUTE SERVICES OR CYBERATTACK RANSOMS, EVEN IF EMBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
3. EMBER’S AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, A STATEMENT OF WORK SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO EMBER BY CLIENT FOR THE SERVICES PROVIDED PURSUANT TO SUCH STATEMENT OF WORK DURING THE TWO (2) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.
1. EMBER Warranty. EMBER WARRANTS THAT DURING THE SUBSCRIPTION TERM AND PROVIDED THAT CLIENT IS NOT IN BREACH OF THIS AGREEMENT THAT: (I) THE SERVICES PROVIDED UNDER THIS AGREEMENT DO NOT INFRINGE OR MISAPPROPRIATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; AND (II) THE SERVICES SHALL SUBSTANTIALLY PERFORM AS DESCRIBED IN THE STATEMENT OF WORK. IN THE EVENT OF ANY BREACH OF THIS SECTION, EMBER SHALL, AS ITS SOLE LIABILITY AND CLIENT’S SOLE REMEDY, REPAIR OR REPLACE THE SERVICES THAT ARE SUBJECT TO THE WARRANTY CLAIM AT NO COST TO CLIENT OR IF EMBER IS UNABLE TO REPAIR OR REPLACE, THEN EMBER WILL REFUND ANY PRE-PAID FEES FOR THE SERVICES PROVIDED, SUBJECT TO THE WARRANTY CLAIM. EXCEPT FOR THE WARRANTY DESCRIBED IN THIS SECTION, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, DEFECTS AND ERRORS OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMBER DOES NOT REPRESENT OR WARRANT THAT ANY OF THE SERVICES WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION, AS CLIENT EXPECTS, OR THAT ANY OF THE SERVICES WILL PERMIT CLIENT TO ACCOMPLISH ITS OBJECTIVES, COMPLY WITH ITS REGULATORY OBLIGATIONS, OR PREVENT OR CONTROL ANY RISK OF DEATH, PHYSICAL INJURY, LOSS OF OR DAMAGE TO PROPERTY OR DATA THAT MAY OTHERWISE BE ASSOCIATED WITH CLIENT’S BUSINESS.
2. Open Source Warranty. The Services may include certain Open Source Software. Open Source Software is governed solely by the applicable open source licensing terms, if any, and is provided “AS IS”, and EMBER hereby disclaims all copyright interest in such Open Source Software. EMBER provides no warranty specifically related to any Open Source Software or any applicable Open Source Software licensing terms. Any fees paid by Client to EMBER are for EMBER’s proprietary software only, and not for any Open Source Software components of such software. Any license associated with an Open Source Software component applies only to that component and not to EMBER’s proprietary software or any other third-party licensed software. The foregoing language is not intended to limit EMBER’s warranty obligation for the Services set forth in Section XII.1. “Open Source Software” means software with its source code made available pursuant to a license by which, at a minimum, the copyright holder provides anyone the rights to study, change, and/or distribute the software to anyone and for any purpose.
XIII. General Provisions.
1. No Implied Waiver; Cumulative Rights & Remedies. No failure or delay to exercise any right, power, or privilege under this Agreement, Statements of Work, or other documents executed pursuant to this Agreement by either Party shall operate as a waiver by that Party, nor shall any individual or limited exercise of any such right, power, or privilege preclude any other or further exercise or that or any other right, power, or privilege. Except where this Agreement expressly states otherwise, all rights, powers, and privileges granted to either Party in this Agreement shall be in addition to, and may be exercised without prejudice to, any other claims, rights, remedies, and powers to which that Party may then be entitled under this Agreement or otherwise .
2. Modifications in Writing. No amendment, modification or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the duly authorized representative of the party alleged to have agreed to the amendment, modification or waiver of that provision.
3. Limitation of Claims. No action, other than an action for breach of a party’ s payment obligations hereunder, may be brought under this Agreement more than one (1) years after the cause of action has accrued.
4. Non-Solicitation. During the Term and for one (1) year thereafter, Client shall not, without prior written consent of EMBER, directly or indirectly, solicit the employment of any EMBER employee or contractor. The Parties agree that in the event this provision is violated, it would be difficult to determine the amount of the non-breaching party’s monetary damages. Accordingly, each Party agrees that if it breaches this provision, it shall pay the non-breaching Party, as its sole and exclusive monetary remedy, liquidated damages in the amount of: (a) in the case of an employee, the employee’s annual compensation on the date of the breach; or (b) in the case of a contractor, the amount of fees billed to the non-breaching party by the contractor in the 12 months prior to the date of the breach. EMBER may invoice Client for liquidated damages arising under this provision, if any, and Client shall pay such invoices. The Parties’ rights and obligations under this Section XIII.4 shall be subject to Section V.4 of this Agreement.
5. Force Majeure. Neither Party shall be responsible for failure to perform any obligation hereunder, other than its payment obligations, to the extent that its failure results from a cause beyond its reasonable control, including earthquakes, floods, fires, storms or other natural disasters, criminal activity, the failure of electrical service, internet access, or other utilities required to provide any one or more of the Services, failure to comply with environmental requirements, unavailability of equipment or hardware, lack of access to Client’s premises, systems, or data.
6. Governing Law; Venue; Limitations of Actions. Each Party agrees that any and all disputes, claims or litigation arising from or related in any way to this Agreement shall be resolved exclusively by the courts in the Commonwealth of Pennsylvania. Each Party waives any objections against and agrees to submit to the personal jurisdiction of the state and federal courts in Philadelphia, Pennsylvania. Each Party waives any objections or defenses it may have based upon an inconvenient forum.
7. Disputes and Escalation. In the event of a dispute, the Party raising the issue will promptly notify the other Party’s relationship manager in writing. The Parties will then meet in good faith to resolve the issue. If the Parties are unable to resolve the issue within five (5) business days or such other timeframe agreed to by the Parties, the Parties will each escalate the issue to their respective senior management for resolution. During a dispute, each Party will continue to perform or pay for the Services, as applicable. This provision shall not limit either Party’s right to obtain any provisional remedy, including specific performance or injunctive relief from any court of competent jurisdiction, as may be necessary, in the aggrieved Party’s sole discretion, to protect its rights under this Agreement.
8. Assignment. Either party may assign this Agreement or any one or more of its rights or obligations under this Agreement with the written consent of the other party, which shall not be unreasonably delayed or withheld. Notwithstanding the foregoing, assignments by either party to its affiliated entities or to a purchaser of all or substantially all of its assets may be made on written notice to the other party. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
9. Order of Precedence. In the event of a conflict between the terms of this Agreement and a Statement of Work (including any exhibits or attachments thereto), the terms of the Statement of Work shall govern, provided that in the event of a conflict between the terms of Sections VII. Representations and Warranties, IX. Intellectual Property Rights, X. Indemnification, XI. Limitation of Liability, and XIII. General Provisions hereof and a Statement of Work, the terms of this Agreement shall govern.
10. Survival. Any provision of this Agreement that contemplates or governs performance or observance subsequent to termination or expiration of this Agreement will survive the expiration or termination of this Agreement for any reason and remain in effect until fulfilled and apply to respective successors and permitted assigns. Further, expiration or termination of this Agreement will not affect the rights and/or obligations of the Parties that arose prior thereto (unless otherwise provided herein) and such rights and/or obligations will survive any such expiration or termination. Except as otherwise specifically set forth in this Agreement, the Parties’ obligations under Sections V, VI, VII, VIII, IX, X, XI, XII and XIII will survive the expiration or termination of the Agreement.
11. Severability. If any provision of this Agreement is held to be invalid unenforceable, it shall be modified to the minimum extent necessary to make such provision enforceable and no other provisions of this Agreement shall be affected.
12. Affiliates. As used herein, the term “Affiliate” with respect to a party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such party. “Client” may include Client’s Affiliates: (i) receiving the benefit of the Services through Client’s purchase of the Services, or (ii) whose data is included, accessed or received by EMBER in connection with the performance of the Services for Client. With respect to such Affiliates of the Client, Client hereby represents and warrants that: (a) Client has obtained the necessary consent from each of Client’s Affiliates for EMBER to access such Affiliates’ networks and data in connection with providing the Services, and (b) each of Client’s Affiliates agrees to, and is hereby legally bound by, the terms of this Agreement. The parties acknowledge and agree that Client’s Affiliates are not intended to be third party beneficiaries to this Agreement. Client shall be fully liable for any breach of the terms of this Agreement by its Affiliates receiving or having access to the Services hereunder.
13. Updates. EMBER reserves the right to modify this Agreement and any webpage incorporated by reference in EMBER’s sole discretion provided that such changes shall not materially decrease the Services’ features to during the then-current Term. Should EMBER make any modifications to the Agreement, EMBER will post the amended terms on the applicable URL links and will update the “Last Updated Date” within such documents and notify Client of any such changes via its website, or such other written communication method implemented by EMBER from time-to-time. Client may notify EMBER within 30 days after the effective date of the change of its rejection of such change. If Client notifies EMBER of its rejection during such thirty (30) day period, then EMBER has the right to determine in its sole discretion whether (a) Client will remain governed by the terms in effect immediately prior to the change until the end of Client’s then-current Term or (b) to terminate the Agreement. However, any subsequent renewal of the Term will be renewed under the then-current terms, unless otherwise agreed in writing by the parties.
14. Counterparts; Delivery by Electronic Means. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which shall constitute one and the same instrument. Delivery of this Agreement or any Statement of Work may be made by electronic means or by telecopier.
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