These Terms are between client (“CLIENT”) and J. Barrows, LLC, located at 10 Post Office Square, 8th Floor, Boston, MA 02109 (“VENDOR”)
1.0 GENERAL TERMS
1.1 This Master Service Agreement (“Agreement”), effective as of the day Client has accepted this Agreement (“Effective Date”), shall govern services (the “Services”) provided by VENDOR to CLIENT. CLIENT may order and VENDOR will perform Services in exchange for CLIENT’s payment of the rates, expenses and other fees (if any) and for the period specified in this Agreement or any future order between CLIENT and VENDOR.
1.2 To the extent any API’s, access to online platforms or other software (collectively “Software”) is provided to CLIENT in connection with the Services, and subject to the payment of all Service fees due hereunder, VENDOR grants to CLIENT a revocable, non-exclusive, non-assignable, non-transferable, and non-sublicensable limited right and license during the term of this Agreement to use the Software and any accompanying documentation, solely in connection with the applicable Services, and only be authorized end users.
1.3 Unless otherwise agreed herein, VENDOR or its licensors, as applicable, shall own all right, title and interest in and to any Services and Software, including without limitation all intellectual property rights. Subject to CLIENT’s payment in full for the Services and/or Software, VENDOR hereby grants to CLIENT during the Term of this Agreement a non-exclusive, royalty-free, non-sub-licensable and non-transferable license to use the Services and/or Software solely for CLIENT’s internal business purposes. CLIENT shall not distribute any material obtained from the Services and/or Software to the public or any third parties except in furtherance of CLIENT’s internal business purposes.
2.0 FEES AND CHARGES
2.1 CLIENT shall promptly pay VENDOR the fees and other amounts specified in this Agreement or any applicable order. In the event that CLIENT fails to make any payment when due, VENDOR may withhold further Services, withhold access to Software or modify payment terms.
2.3 All sales, value-added and other taxes relating to an order, excluding taxes on the income of VENDOR, will be paid by CLIENT.
3.0 REPRESENTATIONS AND WARRANTIES
3.1 Each party represents and warrants that: (a) it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (b) entry into this Agreement does not breach its obligations, duties or contracts with respect to any third party; and (c) it owns or has licenses or sublicenses to all right, title and interest to any materials, technology, or intellectual property delivered to the other for use in connection with the Services and Software identified in this Agreement, and that such materials, technology and intellectual property do not infringe and third party’s rights.
3.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, VENDOR DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. CLIENT AGREES THAT THE USE OF VENDOR’S SOFTWARE OR SERVICES IS AT YOUR SOLE RISK. THAT SUCH SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. VENDOR MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. CLIENT UNDERSTANDS AND AGREES THAT CLIENT’S USE, ACCESS, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SOFTWARE OR THE SERVICES IS DONE AT CLIENT’S OWN DISCRETION AND RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S PROPERTY (INCLUDING CLIENT’S COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF CLIENT RESIDES IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO CLIENT, AND CLIENT MAY HAVE ADDITIONAL RIGHTS
4.0 LIMITATION OF LIABILITY AND LIABILITY CAP
4.1 IN NO EVENT SHALL VENDOR OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF: (i) THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SOFTWARE OR SERVICES; (ii) ANY CONDUCT BY OR ON BEHALF OF VENDOR THAT CONSTITUTES, OR MAY CONSTITUTE, A CIVIL VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT OF 1984 AND AS MAY BE AMENDED FROM TIME TO TIME, OR (iii) ANY VIRUSES THAT MAY INFECT, CLIENT’S COMPUTER, MOBILE DEVICE, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THE SOFTWARE, OR CLIENT’S DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM VENDOR, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT AND ANY AGENTS, REPRESENTATIVES OR ASSIGNS THEREOF, HEREBY WAIVE ANY CLAIMS FOR EQUITABLE RELIEF AGAINST VENDOR ARISING OUT THE SERVICES OR THE SOFTWARE OR FOR THE REASONS SET FORTH IN SUBSECTIONS (i) -- (iii) HEREIN, WHETHER OR NOT SUCH SERVICES OR SOFTWARE WERE USED BY SUCH PERSONS OR ENTITIES.
4.2 IN NO EVENT SHALL VENDOR’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, THIRD PARTY PARTNERS, LICENSORS’ OR SUPPLIERS’ TOTAL LIABILITY TO CLIENT FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR CLIENT’S USE OF THE SOFTWARE OR SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE LESSER OF (1) $100,000 OR (2) THE TOTAL AGGREGATE AMOUNT PAID BY CLIENT TO VENDOR UNDER THE APPLICABLE SOW OR THAT PARTICULAR SERVICE OR SOFTWARE.
5.1 CLIENT shall indemnify, defend and hold harmless VENDOR, its officers, employees, directors, affiliates, agents, representatives and subcontractors, for any and all damages, costs, expense and other liabilities, including reasonable attorney fees, reasonable expert fees and court costs, incurred in connection with any third-party claim, action or proceeding alleging that any documents, materials, information, or other property of CLIENT violates the intellectual property rights of any third party. VENDOR shall provide CLIENT prompt notice of any such claim, action or proceeding. CLIENT shall control the defense of the case at its sole cost and expense. VENDOR shall cooperate fully with CLIENT, at CLIENT’s sole cost and expense, in the defense of any such Claim. CLIENT shall not agree to any settlement of any such Claim that does not include a complete release of VENDOR from all liability with respect thereto or that imposes any liability, obligation or restriction on such VENDOR, without the prior written consent of VENDOR. VENDOR may, at its own expense, hire additional counsel.
6.0 TERM AND TERMINATION
6.1 This Agreement is effective as of the date CLIENT has accepted the terms and accessed the online content and/or Software (the “Effective Date”). The “Term” of this Agreement shall be one (1) year from the Effective Date.
6.2 Either party may terminate this Agreement for any reason, at any time, upon thirty (30) days prior written notice to the other party.
6.3 VENDOR may terminate this Agreement on ten (10) days’ notice in the event CLIENT fails to timely make any payment set forth in this agreement or under the applicable SOW.
6.4 If this Agreement is terminated: (i) CLIENT shall immediately cease all use of the Services and/or Software as of the date of termination an no refund of prepaid fees shall be permitted. The termination remedies set forth herein are in addition to, and not to the exclusion of, any other rights or remedies either party may have against the other, all of which are expressly reserved.
7.1 CLIENT or VENDOR may from time to time disclose to the other party confidential information relating to its business and affairs ("Confidential Information"). Neither party will disclose Confidential Information of the other to the public or any third party, other than to its employees and authorized sub-contractors, without the express written consent of the other party, nor make use of any Confidential Information other than in the performance of this Agreement, except that either party may disclose Confidential Information as required by law or legal process. Each party will use at least the same degree of care, but not less than reasonable care, to avoid disclosure of Confidential Information as it uses with respect to its own Confidential Information.
7.2 Confidential Information will be clearly designated in writing as confidential, or if verbally disclosed, identified as being confidential. Confidential Information does not include information: (a) generally available to or known to the public, (b) previously known to the recipient (c) independently developed by the recipient outside the scope of this Agreement, (d) lawfully disclosed by a third party, or (e) disclosed during testimony before any judicial or quasi-judicial court or tribunal.
7.3 Any third parties to whom Confidential Information is disclosed must execute an agreement containing provisions substantially similar to those set out in this Section.
7.4 The foregoing obligations will survive the termination or expiration of this Agreement for a period of five (5) years after termination or expiration.
8.1 If any provision of this Agreement is, or becomes, unenforceable, it will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.
8.2 This Agreement is binding upon and will inure to the benefit of both parties, and their respective successors and assigns. CLIENT shall not assign its rights under this Agreement to a third party without VENDOR’s prior written consent, such consent not to be unreasonably withheld. VENDOR may sub-contract the performance of any Services to any contractor, with the consent of CLIENT (which will not be unreasonably withheld).
8.3 Neither party shall be deemed to be in default of any provision of this Agreement, or failures in performance, resulting from acts or events beyond the reasonable control of such party and such acts shall include, but not be limited to, acts of God, civil or military authority, civil disturbance, war, strikes, fires, or other catastrophes, or other “force majeure” events beyond the parties’ reasonable control.
8.4 CLIENT shall not export, re-export, use, or divert the Services or Software to or on behalf of (a) any country that is subject to U.S. economic sanctions administered by the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), including but not limited to, Cuba, Iran, Sudan, Syria and North Korea; (b) the government of any OFAC-sanctioned country, wherever located; or (c) persons or entities identified as “Specially Designated Nationals” by OFAC, or entities that are owned or controlled by a Specially Designated National. CLIENT shall not distribute or supply the Services or Software to any person if CLIENT has reason to believe that such person intends to export, re-export or otherwise transfer the Services or Software, or to use the Services or Software in or for the benefit of, any such OFAC-sanctioned countries, governments, persons or entities. CLIENT shall not use the Services or Software in connection with the commission of terrorist acts or the design, development, production, or use of nuclear, biological, or chemical weapons; missiles; or unmanned aerial vehicles. CLIENT shall not export, re-export, or transfer the Services or Software to any person or entity with knowledge or reason to know that any of the prohibited activities identified in this section are intended by such person or entity. Without limiting the foregoing, CLIENT shall not commit any act which would, directly or indirectly, violate, or which may cause VENDOR to violate, any United States or local law, regulation, treaty or agreement relating to the export or re-export of the Services or Software. At its expense, CLIENT shall obtain any government consents, authorizations, or licenses required for CLIENT to exercise its rights and to discharge its obligations under this Agreement. Acknowledging that any data it may place on the Services or Software may constitute an export of such data by the CLIENT to one or more foreign jurisdictions, CLIENT shall not cause any such export of data in violation of the laws of the United States and/or such other foreign jurisdictions.
8.5 This Agreement, and any matters relating to it, will be governed, construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflicts of law provisions. In the event of a dispute arising under or in connection with this Agreement or an SOW, the parties shall submit to the exclusive jurisdiction of the state or federal courts located in Suffolk County, Massachusetts, and courts with appellate jurisdiction therefrom. Each party agrees to submit itself to the personal jurisdiction of such courts, and that venue in such courts is both proper and convenient. These Terms are between client (“CLIENT”) and J. Barrows, LLC, located at 10 Post Office Square, 8th Floor, Boston, MA 02109 (“VENDOR”)