This Master Services Agreement (“Agreement”) is made between
the EnterpriseDB (“EDB”) entity identified on the SOW (defined below) to which this Agreement applies; and the customer identified on the SOW (“Customer”)
This Agreement is effective as of the date of the latest of the signatures of all parties below (“Effective Date”).
1 DEFINED TERMS
1.1 Affiliates – means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
1.2 Confidential Information means all information disclosed by either EDB or Customer ("Disclosing Party") to the other party ("Recipient") during the term of this Agreement that is either (a) marked confidential; (b) disclosed orally and described as confidential at the time of disclosure and subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure; or (c) of a nature that the Recipient should reasonably have known is confidential.
1.3 Service Description(s) means the applicable document and descriptions therein that sets out the details of the applicable service and which is/are located at www.enterprisedb.com/
1.4 Services means the specific services that EDB will provide to Customer as described in a SOW, signed by the parties.
1.5 Statement of Work (“SOW”) means a mutually executed, written document, describing the Services to be provided by EDB.
2 SCOPE PURPOSE AND OBJECTIVES
2.1 Framework. This Agreement establishes a framework that will enable EDB to provide Services to Customer. The specific Services that EDB will provide to Customer will be described in a SOW, signed by the parties. The parties agree that the terms of this Agreement will govern all purchases and use by Customer of Services unless otherwise agreed by the parties in writing.
2.2 Affiliates. Any EDB Affiliate may offer Services directly under this Agreement pursuant to any SOW that satisfies the requirements of this Agreement, provided that such SOW will identify such EDB Affiliate and all such Statements of Work must be signed by an authorized representative of such EDB Affiliate. Such EDB Affiliate will have all rights and obligations under such SOW and Customer will look solely to and be responsible to such EDB Affiliate in connection with the performance of Services and EDB will have no liability in connection therewith.
2.3 Service Descriptions and Fees. In consideration for the fees paid by the Customer and as set forth in the applicable SOW, EDB will provide such Services according to the SOW and applicable Service Description(s).
2.4 Service Limits. Customer recognises and appreciates that each Service Description is described separately to allow Customer the choice of selecting some or all of the individual service types. If, under the applicable SOW, the Customer selects some but not all of the service types then Customer accepts that it is EDB's right to reasonably refuse service or request additional fees in consideration of work performed at Customer's request that falls outside Service Descriptions.
3 CUSTOMER RESPONSIBILITIES
3.1 Customer is responsible for all activity occurring under the use of the Services and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Services, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data.
3.2 Customer shall pay all fees or charges to EDB’s account in accordance with the fees, charges, and billing terms that apply to the Agreement and applicable SOW. Unless otherwise specified in a SOW, EDB will invoice Customer upon execution of a SOW and payment will be due net thirty (30) days from the invoice date. Except as otherwise provided in this Agreement all payment obligations are non-cancellable and all amounts paid are non-refundable. Customer must provide EDB with a valid credit card or approved purchase order information as a condition of signing up to the Service. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
3.3 Customer agrees to provide EDB with complete and accurate billing and contact information. This information includes the legal company name, street address, e-mail address, and name and telephone number of an authorised billing contact. Customer agrees to update this information within 30 days of any changes. If the contact information provided is false or fraudulent, EDB reserves the right to terminate the use of the Service in addition to any other legal remedy.
3.4 If Customer believes an invoice to be incorrect, Customer must contact EDB in writing within 14 days of the date of receipt of the invoice in question to be considered for any credit or adjustment.
4.1 Obligations. During the term of this Agreement, both parties agree that (a) Confidential Information (defined above) will be used only in furtherance of, and accordance with, the terms and conditions of this Agreement; (b) each will use the same degree of care it utilises to protect its own confidential information, but in no event less than reasonable care; and (c) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. Both parties agree that obligations of confidentiality will exist for a period of five (5) years following the later of the termination or expiration of this Agreement and/or any SOW. A disclosure of any Confidential Information in response to a valid order by a court or other governmental body or as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the receiving party will provide prompt advance written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure. The receiving party shall not use the Confidential Information of the other party for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of any Confidential Information and that the other party may seek, without waiving any other rights or remedies and without posting any bond, injunctive or equitable relief.
4.2 Exclusions. Confidential Information will not include information which: (a) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Disclosing Party without obligation of confidentiality; (b) is known to the Recipient at the time of disclosure by the Disclosing Party; (c) is independently developed by the Recipient without use of the Confidential Information; (d) becomes lawfully known or available to the Recipient without restriction from a source having the lawful right to disclose the information; (e) is generally known or easily ascertainable by parties of ordinary skill in the business of the Recipient; or (f) is software code in either object code or source code form that is licensed under an open source license.
4.3 Freedom to Use Ideas. Subject to the above confidentiality terms and notwithstanding anything to the contrary including, without limitation, that contained in this Agreement or a SOW, the ideas, methods, concepts, know how, structures, techniques, inventions, developments, processes, discoveries, improvements and other information and materials developed by EDB, in and during the course of any SOW may be used by EDB, without an obligation to account, in any way EDB deems appropriate, including, without limitation, by or for itself or its customers.
4.4 Continuing Business. Nothing in this Agreement will preclude or limit EDB from providing materials or services for itself or other customers irrespective of the possible similarity of such materials or services to those that might be delivered to Customer.
4.5 Ownership. Except Customer’s ownership in its Confidential Information existing at the time of the commencement of the work hereunder, EDB own all right, title and interest in and to all service deliverables, but EDB grant to Customer a nonexclusive, worldwide, right and license to use, execute, reproduce, display, and perform any such deliverables solely in association with EDB’s proprietary software during Customer’s valid subscription. If EDB’s services are performed on source code that is released to the public under an open source license, Customer’s use is licensed under the applicable open source license. EDB will have the sole right to use and/or to apply for patents, copyrights or other statutory or common law protections for any service deliverable. Customer agrees that nothing in this Agreement will be deemed to prohibit or limit EDB’s use, now or at any time, of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience, in any way whatsoever that are used or developed in the performance of support or services under this Agreement, subject to EDB’s obligation with respect to Customer’s Confidential Information. Customer hereby assigns all right, title, and interest in and to all modifications, enhancements, customizations, source code, acquired or developed during the performance of the support or services under this Agreement. EDB product documentation, training courses and training materials are all copyrighted by EDB.
5 ENTIRE AGREEMENT
5.1 Each SOW (a) is a separate agreement and is deemed to incorporate this Agreement, unless otherwise expressly provided in that SOW; (b) constitutes the exclusive terms and conditions with respect to the subject matter of that SOW, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer to place orders or otherwise effect transactions under this Agreement; and (c) represents the final, complete and exclusive statement of the agreement between the parties with respect thereto, notwithstanding any prior written agreements or prior and contemporaneous oral agreements with respect to the subject matter of the SOW. In the event of any conflict between this Agreement and a SOW, this Agreement will take precedence unless otherwise expressly provided in the SOW. Any claim relating to the provision of the Services by EDB, its Affiliates or their respective personnel will be made against EDB or the EDB Affiliate contracting under the applicable SOW, as the case may be, alone. The parties have not relied upon, and will have no remedy in respect of, any warranty, statement, representation or understanding made by any party (whether or not that party is a party to this Agreement) unless it is expressly set out in this Agreement. Nothing in this Agreement will restrict either party's liability for fraudulent misrepresentation.
6 REPRESENTATIONS, WARRANTIES, DISPUTES AND REMEDIES
6.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement. EDB represents and warrants that it will provide the Service with reasonable care and skill in a manner consistent with general industry standards reasonably applicable to the provision of that Service.
6.2 EDB is an independent contractor and nothing in this Agreement, Service Descriptions or Statements of Work will be construed to create an employment or agency relationship between Customer (or any Customer personnel) and EDB (or any EDB personnel). Each party will be solely responsible for supervision, direction, control and payment of its personnel, including applicable taxes, deductions, other payments and benefits.
6.3 Suitability. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND EDB SHALL HAVE NO LIABILITY THEREFORE.
6.4 Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, THE SERVICES ARE PROVIDED BY EDB “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS, CONDITIONS OR OTHER TERMS OF ANY KIND AND EDB EXCLUDES ALL IMPLIED WARRANTIES TO THE EXTENT PERMISSIBLE BY LAW (INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE). EDB DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED, AS A RESULT OF “FORCE MAJEURE” OR FOR ANY OTHER REASON, BE ERROR FREE OR THAT EDB WILL CORRECT ALL SOFTWARE ERRORS.
6.5 Remedy. FOR THE BREACH OF THE REPRESENTATIONS SET FORTH IN THIS AGREEMENT, CUSTOMER’S EXCLUSIVE REMEDY, AND EDB’S ENTIRE LIABILITY, WILL BE THE REPERFORMANCE OF DEFICIENT SERVICES, OR IF EDB CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY TERMINATE THE RELEVANT SERVICES AND RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT SERVICES AS OF THE EFFECTIVE DATE OF TERMINATION.
6.6(1) Subject to Section 6.6(2), in no event will either party be liable for: (i) any indirect or consequential liabilities, fines, loss, damage, cost, and expense, including reasonable legal fees and costs (including, without limitation, any failure to realize savings or other benefits; any loss of use; or any claims made by or any payments made to any third person); (ii) any loss of profits, goodwill or further business; (iii) any loss and/or damage arising from or in connection with a virus; or (iv) any loss of data and/or damage arising therefrom or relating thereto, in each case arising from or in connection with this Agreement or the use or performance of any Software whether in an action based on contract, tort (including negligence) or any other legal theory.
6.6(2) Nothing in this Agreement shall limit or exclude either party's liability for: (i) death or personal injury caused by its negligence, or for the negligence of its personnel, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982, section 12 of the Sale of Goods Act 1979, (iv) breach of confidentiality, (v) Customers mis-use, infringement or misappropriation of EDB’s intellectual property, and (vi) any other liability which cannot be limited or excluded by applicable law.
6.6(3) Subject to Section 6.6(2), EnterpriseDB's total aggregate liability arising from or in connection with this Agreement or the use or performance of any Software, Support or Services whether in actions based on contract, tort (including negligence) or any other legal theory, will be limited to 120% of the amount paid or payable under the applicable Order Form during the twelve (12) month period preceding the date of the claim.
WE BOTH AGREE THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT ARE CONTRACTUAL IN NATURE ONLY AND SUBJECT TO THE SOLE AND EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT. NO PERSON IS ASSERTING THE TRUTH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT; RATHER THE PARTIES HAVE AGREED THAT SHOULD ANY REPRESENTATION OR WARRANTY OF ANY PARTY PROVE UNTRUE, THE OTHER PARTY SHALL HAVE THE SPECIFIC RIGHTS AND REMEDIES SPECIFIED IN THIS AGREEMENT AS THE EXCLUSIVE REMEDY AND THAT NO OTHER RIGHTS, REMEDIES OR CAUSES OF ACTION (WHETHER IN LAW OR IN EQUITY OR WHETHER IN CONTRACT OR TORT) ARE PERMITTED TO ANY PARTY TO THIS AGREEMENT AS A RESULT OF THE UNTRUTH OF ANY SUCH REPRESENTATION OR WARRANTY. FURTHERMORE, WE BOTH AGREED THAT WE ARE NOT RELYING ON ANY STATEMENTS THAT ARE OUTSIDE OF THIS AGREEMENT (FOR EXAMPLE, STATEMENTS MADE BY MARKETING, TECHNICAL AND SALES PEOPLE, ETC.). WE BOTH AGREE THAT IF THERE WAS ANY SUCH STATEMENTS BEING RELIED UPON, WE WOULD HAVE INCORPORATED THEM SPECIFICALLY INTO THIS AGREEMENT.
7 DISPUTE RESOLUTION AND TERMINATION
7.1 Dispute Resolution. Each party agrees to give the other a written description of any problem(s) that may arise and to make a good faith effort to amicably resolve any such problem before commencing any proceeding. Notwithstanding the foregoing, either party may take any action reasonably required to protect such party’s rights. No claim or action, regardless of form, arising out of this Agreement or a SOW may be brought by either party more than three (3) years after the cause of action has accrued.
7.2 Term and Termination of Agreement. The termination of this Agreement will not operate to terminate any SOW and the terms and conditions of this Agreement will continue in full force and effect to the extent necessary to give effect to any SOW in effect at the time of termination of this Agreement and until such time as the applicable SOW expires or is terminated in accordance under the terms stated in the appropriate Service Description attached thereto.
7.3 Term and Termination of SOW. The term of a SOW begins on the date the SOW is executed (“SOW Effective Date”) and continues for the term stated in the SOW. Customer must use any Services set forth in a SOW. during the term specified in the SOW or within (1) one year of the SOW Effective Date, whichever is shorter; if unused, such Services will be forfeited.
8.1 Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, provided that no consent will be necessary if this Agreement is being assigned by a party upon notice to the other party to: (a) an Affiliate; or (b) an acquirer of all or substantially all of the party's assets or stock, whether by merger, sale or exchange of stock, sale of assets or otherwise. The foregoing notwithstanding, neither party may assign or transfer this Agreement to a competitor of the other without prior written consent. This Agreement binds the parties and their respective permitted assigns.
9 FORCE MAJEURE
9.1 Neither party will be liable or deemed to be in breach for any delay or failure in performance of this Agreement (except for the payment of money) or interruption of services resulting directly or indirectly from acts of nature, civil or military authority, war, riots, civil disturbances, pandemic, accidents, fire, earthquake, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such party.
10.1 The failure of any party at any time to enforce any of the provisions of this Agreement or to exercise any right under this Agreement shall in no way affect that party's rights after any failure or constitute a waiver of that right.
10.2 If any clause or paragraph of this Agreement is held invalid or is otherwise unenforceable the remainder of this Agreement shall not also be invalidated.
10.3 Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
10.4 Customer may not hire, or directly or indirectly solicit or employ, any employee or contractor of EDB during the term of this Agreement and for one (1) year after the termination of this Agreement; provided, however, that nothing contained herein will prevent Customer from hiring any such employee who responds to a general hiring program conducted in the ordinary course of business or who approaches such Customer on a wholly unsolicited basis.
11.1 Notices must be written in English, given in writing and sent by pre-paid first class certified or registered mail or sent by an internationally recognized express courier service that provides recorded delivery information to the address as noted above. Notices will be deemed given following positive confirmation of receipt by the delivery agent.
12.1 This Agreement (and all SOWs) shall in all respects be subject to and construed in accordance with the laws of the EDB entity identified on the SOW and the parties to the Agreement hereby submit to the exclusive jurisdiction of the Courts located where the EDB entity identified in the SOW resides. Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.