Last Updated: Dec/12/2019
This Services Agreement (the “Agreement”) is entered into as of the date of signature (“Date”) identified on an applicable Order Form by and between Dedicated Technologies, Inc., a Delaware corporation (“Dedicated”), and the Customer named in such Order Form (“Customer”). Such parties are hereinafter referred to collectively as the “Parties” or individually as a “Party”. Dedicated and Customer agree as follows:
1.1 Services. Dedicated provides prospective client outreach and sales and marketing support services (the “Services”). The Services are purchased as subscriptions, the specifics of which are described in one or more order forms (the “Order Form”) that may be entered into by the Parties from time to time.
1.2 Order Forms. Each Order Form sets forth the Services and related deliverables Dedicated is providing to the Customer as well as the subscription fees (the “Fees”). Each Order Form shall be governed by the terms and conditions of this Agreement. If there are any terms and conditions in any Order Form that conflict with the terms of this Agreement, then the terms of the Order Form shall take precedence over any inconsistent terms in this Agreement.
2.1 Fees. All Fees set forth in the Order Form are payable by Customer in United States Dollars unless otherwise specified in the applicable Order Form. Fees are based on subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
2.2 Invoicing and Payment.
Credit Card, Debit Card or Wire Transfer. All payments due under this Agreement shall be made by credit card, debit card, or bank wire transfer. Such charges shall be paid in advance in accordance with the frequency stated in the applicable Order Form.
Invoices. Dedicated will invoice Customer in advance in accordance with the relevant Order Form. Payments for invoices are due thirty (30) days after the invoice is received by Customer, unless otherwise specified on the Order Form, and are considered delinquent after such date. Notwithstanding the foregoing, in no case shall any Fees be due, or shall Customer be charged, prior to the due date set out in the applicable Order Form.
Billing Information. Customer has provided on the Order Form complete and accurate billing and contact information (including all actions necessary to obtain payment from Customer, such as purchase order requirements if applicable) to Dedicated.
2.3 Overdue Charges. If any undisputed invoiced amount is not received by Dedicated by the applicable due date, then without limiting Dedicated’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding undisputed balance per month, or the maximum rate permitted by law, whichever is lower.
2.4 Suspension of Service and Acceleration. In the event of delinquent payments under this Agreement or any other agreement, without limiting Dedicated’s other rights and remedies, Dedicated may accelerate Customer’s unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and/or suspend or terminate the Services to Customer until such amounts are paid in full.
2.5 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (“Taxes”). Customer is responsible for any Taxes, and Customer will pay Dedicated for the Services without any reduction for Taxes. If Dedicated is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer.
3. Term and Termination
3.1 Term of Agreement. This Agreement commences on the Date and continues until all subscriptions under all Order Forms have been terminated (including by expiry).
3.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least fifteen (15) days before the end of the relevant subscription term. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
3.3 Termination. Either Party may terminate this Agreement if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within thirty (30) days; or (iii) the other Party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches.
3.4 Survival. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, confidentiality, warranty disclaimers, indemnity, and limitations of liability.
4. Dedicated Responsibilities
4.1 Provision of Services. Dedicated will use commercially reasonable efforts to make the Services available to Customer, and all related deliverables to Customer, pursuant to this Agreement and all applicable Order Forms.
4.2 Protection of Customer Data. Dedicated will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Dedicated employees and third party service providers except (i) to provide the Services and prevent or address service or technical problems, (ii) for billing, account management and other administrative matters, (iii) as compelled by law in accordance with Section 7.3 of this Agreement, or (iv) as Customer expressly permits in writing. All facilities used to store and process Customer Data will adhere to commercially reasonable security standards no less protective than the security standards at facilities where Dedicated stores and processes its own information of a similar type, and in any case no less than reasonable standards given the sensitivity of the Customer Data. As part of providing the Services Dedicated may transfer, store and process Customer Data in the United States or any other country in which Dedicated or its agents maintain facilities.
4.3 Personnel. Dedicated will be responsible for the performance of its employees and third party services providers and their compliance with Dedicated’s obligations under this Agreement, unless otherwise specified herein, and will use commercially reasonable efforts to prevent unauthorized access to or use of the Customer Data, and promptly notify Customer of any such unauthorized access or use.
5. Customer Responsibilities
5.1 Compliance. Customer will (i) be responsible for the compliance by any individuals Customer permits to use the Services (“End Users”) with the Dedicated Acceptable Use Guidelines, (ii) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquires Customer Data and Customer’s use and continued use of Customer Data through the Services, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services by End Users, and promptly notify Dedicated of any such unauthorized access or use.
6.1 Customer Rights. All rights, title and interest in and to any data or information or content provided, generated, transmitted, displayed or otherwise made available to Dedicated via or in connection with the Services by Customer or its End Users (“Customer Data”) shall remain the sole property of Customer and/or its End Users as applicable.
6.2 Dedicated Rights. Except for the limited rights expressly granted to Customer hereunder, Dedicated owns and retains all rights, title and interest in and to the Services and any related documentation as further described in the Order Form hereto, including but not limited to all copyrights, trademarks, domains, logos, trade dress, trade secrets, patents, and other intellectual property rights associated with the Services. Customer may not use Dedicated copyrights, trademarks, domains, logos, trade dress, patents, and other intellectual property rights unless Customer has Dedicated’s express written permission.
6.3 Customer License to Dedicated. Dedicated shall not access, use, modify, copy, store, disclose, view, adapt, transmit, publish or otherwise process any Customer Data, or permit any other person to do the same, except as expressly permitted under this Agreement. Customer hereby grants to Dedicated a limited, non-exclusive, non-transferable, non-sublicensable, and irrevocable, worldwide, royalty-free license to access, use, modify, copy, store, process, view, adapt, publish, transmit and display Customer Data only for the limited purposes of (i) providing the Services and associated customer support to Customer; (ii) analyzing and improving the Services. No licenses or rights are granted to Dedicated by implication or otherwise, except for the licenses and rights expressly granted to herein. Dedicated may also create, share and publish aggregate, anonymized data to provide the Services and make commercially reasonable changes to the Services.
6.4 Dedicated License to Customer. Dedicated grants Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use the Services, in accordance with this Agreement. This license is for the sole purpose of enabling Customer to use the Services in the manner permitted by this Agreement. No licenses or rights are granted to Customer by implication or otherwise, except for the licenses and rights expressly granted to herein.
7.1 Confidential Information. The Parties acknowledge that, in the course of performance under this Agreement, a Party (the “Disclosing Party”) may disclose, deliver or permit access by the other Party (the “Receiving Party”) to information that is either identified as, or should reasonably be understood by the Receiving Party to be, proprietary or confidential (“Confidential Information”). Confidential Information shall include, but shall not be limited to: applications, analyses, methods, methodology, algorithms, and training models; business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; and sales and marketing information. With respect to the Customer, Confidential Information also includes all Customer Data.
7.2 Non-Disclosure and Non-Use. Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the Disclosing Party, or as required by law, the Receiving Party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the Disclosing Party. Each party agrees that Receiving party will: (i) use the Confidential Information only for the purpose of fulfilling its obligations under this Agreement and under any applicable Order Forms (ii) restrict access to the Disclosing Party’s Confidential Information to such of its employees, personnel, agents, and/or consultants, if any, who have a need to have access to the Confidential Information and who have been advised to treat such information in accordance with the terms of this Agreement (iii) use the same care and discretion with respect to the Confidential Information received from the Disclosing Party as it uses with its own similar information, but in no event less than a reasonable degree of care.
7.3 Confidentiality Exclusions. The obligations set forth above shall not apply to any Confidential Information that the Receiving Party can demonstrate: (i) the Receiving Party possessed, without any obligation of confidentiality, prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of the Agreement by the Receiving Party; (iii) is or was independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (iv) is or was received by the Receiving Party from a third party that does not have an obligation of confidentiality to the Disclosing Party or its affiliates. Either Party may disclose the Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The Receiving Party may disclose Confidential Information of the Disclosing Party if legally required to do so in connection with any legal or regulatory proceeding only to the extent necessary to comply with the order or other legal requirement. In such event the Receiving Party will, if lawfully permitted to do so, promptly notify the Disclosing Party within a reasonable time prior to disclosure so as to allow the Disclosing Party an opportunity to seek appropriate protective measures.
8. Representations, Warranties and Disclaimers
EXCEPT FOR THOSE EXPRESS WARRANTIES SET OUT IN THIS AGREEMENT, CUSTOMER AGREES THAT THE USE OF THE SERVICES IS ENTIRELY AT ITS OWN RISK; THE SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND (A) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW; (B) TO THE FULLEST EXTENT PERMITTED BY LAW, DEDICATED DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES, OR ACCESSED THROUGH ANY LINKS ON THE SERVICES; (C) DEDICATED DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED; AND, (D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DEDICATED OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL OF CUSTOMER COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM CUSTOMER COMMUNICATES OR INTERACT AS A RESULT OF CUSTOMER’S USE OF THE SERVICES. CUSTOMER UNDERSTANDS THAT DEDICATED DOES NOT ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. DEDICATED MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICES.
9. Limitation of Liability
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (EXCEPT IN RESPECT OF CUSTOMER’S OBLIGATION TO PAY THE FEES SET FORTH HEREIN OR IN ANY ORDER FORM). EITHER PARTY’S AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT CUSTOMER HAS PAID TO DEDICATED IN THE PAST TWELVE MONTHS. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Customer agrees to defend, indemnify, and hold harmless Dedicated including our affiliates, subsidiaries, parents, successors and assigns, and each of Dedicated’s respective officers, directors, employees, agents, or shareholders from and against all liabilities, damages, losses, and expenses of any kind (including reasonable legal fees and costs) relating to, arising out of, or in any way in connection with any of the following: (i) Customer’s access to or use of our Services, including information provided in connection therewith; (ii) Customer’s breach or alleged breach of this Agreement; (iii) any misrepresentation made by Customer; or (iv) third-party claim arising from (a) any unauthorized use of the Service by Customer, its employees, personnel, agents, representatives; or (b) the negligence or willful misconduct of Customer, its employees, personnel, agents, or representatives; except that Customer shall have no such obligation to the extent the third-party claim results from Dedicated’s breach of this Agreement or its negligence or willful misconduct or any claim subject to indemnification by Dedicated. Customer will cooperate as fully as required by Dedicated in the defense or settlement of any claim.
11.1 Entire Agreement. This Agreement (together with any Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof.
11.2 Notices. Unless specified otherwise herein, all notices must be in writing and addressed to the attention of the other Party's primary point of contact and will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
11.3 Assignment. Neither Party may assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void without consent of the other party; consent shall be reasonably granted in the context of an acquisition.
11.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (including, but not limited to, a natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.
11.5 No Waiver. No delay or failure to act regarding any breach of this Agreement shall constitute a waiver of such breach or of any prior, concurrent or subsequent breach of the same or other provisions of this Agreement. No single or partial exercise of any right shall preclude any other or further exercise of such right or the exercise of any other right. Except as otherwise expressly provided herein, the observance of any provision of this Agreement may be waived (either retroactively or prospectively) only with the signed written consent of the party against whom such waiver will be enforced. Such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it has been given and shall not be deemed or constitute a waiver of any other provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Failure to enforce any provision of this Agreement will not constitute a waiver.
11.6 No Agency. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture for any purpose.
11.7 Severability. If one or more of the provisions in this Agreement are deemed void or unenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected.
11.8 Governing Law. The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of the State of New York and the United States, without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement shall be in the courts located in New York, New York and both parties hereby consent to such jurisdiction and venue for this purpose.