MASTER SERVICES AGREEMENT
This Master Services Agreement (this “Agreement”) is entered into by and between Travtus Workforce, Inc. (“Travtus”) and the party that has agreed to be bound by this Agreement (“you” “your” or “Customer”). This Agreement includes any and all Order Forms (as that term is defined below) which are incorporated herein by reference.
By clicking to accept or agree to this Agreement when this option is made available to you, you accept and agree to be bound and abide by the terms of this Agreement as of the date you click you acceptance (the “Effective Date”). You additionally represent that you have the authority to enter into this agreement on behalf of your company, and agree that the company, and all of its employees and users will be bound by this agreement. If you and your company do not wish to be bound by this agreement, you may not use the Software or Services.
1. Definitions. The following definition apply to the Agreement:
a. “Authorized Users” means the personnel, authorized representatives and/or end customers or tenants for whom Customer has purchased a license to the use the Software provided that such Authorized User is legally bound to comply with the terms and conditions of the Agreement.
b. “Customer Information” means data of or concerning Customer, its Authorized Users, consumers, customers or clients, and/or its parent, subsidiaries, affiliates and agents provided by Customer to Travtus in connection with the Software and/or Services. Customer Information includes all information entered into the Software by Authorized Users, including any personal information provided by end customers/tenants when interacting with the artificial-intelligence-driven chat functionality of the Software.
c. “Deliverables” mean those tangible and intangible materials, reports, rankings, audits, studies, cases, findings, procedures, and recommendations created or prepared by Travtus in the course of providing the Software and/or Services and specifically identified as “Deliverables” in an applicable Order Form.
d. “Fees” mean the fees all in U.S. dollars agreed to be paid by Customer as set forth in the applicable Order Form.
e. “Intellectual Property Rights” means, without limitation, any and all patents, patent applications, trademarks, registrations for trademarks, applications for registration of trademarks, trade secrets, copyrights, registrations for copyrights, applications for registration of copyrights, and all other similar items of intellectual property, whether registered or unregistered, any and all applications thereto, including any common law or other rights created by use thereof, all proceeds thereof (such as by the way of example any licenses, royalties and proceeds of current infringements), and the right to sue for past, present and future infringements.
f. “Travtus Materials” mean all Software, technology, source code, hardware, servers, materials, tools, templates, know-how, methods, processes, forms, reports, data and information (other than Customer Information) and any and all components and materials related to such items whether or not created, assembled, organized or produced by Travtus and modification and enhancements to any such items whether or not created by Travtus.
g. “Order Form” means an order form incorporated under, and governed by, this Agreement, pursuant to which Customer orders Software and/or Services or a separate work order or statement of work to be governed by this Agreement pursuant to which Customer order professional services or subscribes to software, the form of which shall be mutually agreed to by the parties. Order Forms shall also include the purchase page on the Travtus website where Customer selects Software and/or Services for purchase.
h. “Services” means any consulting, development or other services to be provided by Travtus as expressly outlined in an Order Form.
i. “Software” means any Travtus’ proprietary software-based services expressly subscribed to by Customer in an Order Form.
2. Order Forms. Subject to the terms of the Agreement, Travtus and/or its affiliates will perform certain Software and/or Services and deliver certain Deliverables for Customer, as specified in an Order Form.
3. Fees and Payments
a. Fees. Customer shall timely pay to Travtus the Fees. Unless otherwise stated in an Order Form, (a) implementation fees shall be due and payable in full upon execution of the respective Order Form, (b) subscription fees shall be due and payable in full and in advance of each recurring payment period set forth in an Order Form (i.e. monthly, quarterly, annually) beginning on the execution date of the respective Order Form; and (c) professional service fees shall be due and payable in full upon receipt of an invoice detailing fees incurred during the prior month. The Fees are subject to change upon thirty (30) days prior notice except that unless otherwise set forth in an Order Form, no individual Fee may be increased by more than five percent (5%) per annum. Travtus may pass along any vendor or third party fee increases upon receipt of the invoices from such vendor.
b. Expenses. In addition to the Fees, Travtus shall bill Customer for the actual cost of any out-of-pocket expenses (such as telephones, meals, travel, etc.) with respect to any expenses incurred in connection with the performance of the Services.
c. Taxes. All invoiced amounts are exclusive of any and all value added, use, sales, service, property or other taxes or contributions. Customer shall be responsible for payment of any such value added, use, sales, service, property or other taxes or contributions that are, or should ultimately be, assessed against or required to be collected by Travtus in connection with Travtus' performance hereunder (except to the extent Customer is exempt by law and can provide Travtus with a bona fide exemption certificate).
d. Disputes; Suspension of Software and Services. In the event that Customer disputes, in good faith, any charges on an invoice, it shall notify the controller at Travtus at the address listed in the appropriate Order Form of such dispute with a detailed written explanation prior to the date that the invoiced amount is due. The parties shall use good faith efforts to resolve the dispute within ten (10) days after Customer notifies Travtus; provided, however, that Customer shall continue to timely pay Travtus any portion of the invoice not subject to a good faith dispute. In the event that Travtus does not receive payment of any Fees within the time frames above, interest shall accrue at the maximum rate allowed by law and Travtus reserves the right, in addition to any other rights and in its sole discretion, to terminate access to the Software by such Customer and/or stop any and all Services being performed. In addition, Customer shall reimburse Travtus for the costs of collection including, without limitation, attorneys’ fees and expenses.
4. Proprietary Rights
a. Ownership. All right, title and interest in and to the Travtus Materials and any and all Intellectual Property Rights therein shall belong exclusively to Travtus, and all rights granted to Customer under the Agreement are expressly limited to the license granted herein. Upon Customer’s payment in full of all applicable Fees, Travtus shall assign all right, title and interest in the Deliverables to Customer. To the extent any Travtus Materials are incorporated into the Deliverables, Travtus grants Customer a non-exclusive, perpetual, royalty-free, worldwide right and license to use the Travtus Materials solely in connection with Customer’s internal business use of the Deliverables.
b. License. Subject to the terms and conditions of the Agreement and subject to receipt of all applicable Fees and other amounts due hereunder, Travtus hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Term of the relevant Order Form to access and use, solely by its Authorized Users, the Software solely for Customer’s internal business use.
c. Limitations. Customer may only use the Travtus Materials in its own business and pursuant to the terms of the Agreement and related Order Forms and shall ensure that its Authorized Users comply with the terms herein. Customer agrees that it shall not, in whole or in part, at any time during or after the Term: (i) sell, assign, sub-licensee, lease, rent, timeshare, grant a security interest in, distribute, transfer, communicate or disclose any of the Travtus Materials to any third party; (ii) modify or attempt to modify any of the Travtus Materials or decompile, reverse engineer, create or recreate any related source code; (iii) use any of the Travtus Materials to provide services to, or to otherwise benefit, any third party, other than the Authorized Users (which may include Travtus’ customers); (iv) use any of the Travtus Materials to create a program having similar features or functions of the Travtus Materials; (v) remove or modify any copyright or other proprietary notice contained in any of the Travtus Materials; (vi) use, possess, or transfer any of the Travtus Materials in and/or to any foreign jurisdiction in violation of any trade laws or regulations; or (vii) allow others to do any of the foregoing. Customer’s access to the Software does not entitle it to any professional services from Travtus unless expressly mutually agreed to in an Order Form.
5. Representations, Warranties, Regulatory Compliance.
a. Duly Authorized. Each party represents and warrants that it is duly authorized to enter into the Agreement, it has the authorization to grant the rights herein, its performance of the Agreement will not breach any separate agreement to which it is bound, and that the Agreement, upon execution and delivery, represents a binding obligation of such party, enforceable in accordance with its terms.
b. Services. Travtus warrants that the Services will be provided in a professional and workmanlike manner consistent with industry practices. Customer acknowledges and agrees that some services and products provided by Travtus may be provided through third party subcontractors and vendors and, therefore, Travtus makes no representations or warranties regarding the validity, accuracy, or value of any third party-provided information, data, or analysis.
c.Customer Obligations. Customer represents and warrants (1) it will provide and maintain all necessary hardware and telecommunications connections necessary for Customer to utilize the Software and Services, including with respect to any API(s) provided by Travtus; (2) it will provide Travtus with the requisite Customer Information and any other information or assistance reasonable requested by Travtus as may be necessary for Travtus to perform its obligations hereunder; and (3) that Customer has obtained all necessary rights, permissions and authorizations, including, as my be required by applicable law, via implementation of a privacy policy, as may be necessary to provide the Customer Information to Travtus, including, but not limited to, with respect to information regarding Authorized Users. In the event that Customer fails to provide any such information or assistance, any timelines for performance by Travtus shall be adjusted to allow Travtus time to address such deficiencies and if such change results in additional costs or business loss to Travtus, Travtus shall have the right to increase the Fees. Travtus’ performance shall be excused or delayed until such time as Customer satisfies such obligations.
d. The Software may include Travtus’ proprietary artificial-intelligence-driven communications feature (known as “Adam”) which can communicate with Customer’s Authorized Users on behalf of Customer as well as recommend third party products and services sourced by Customer and/or Travtus to those Authorized Users. Travtus’ use of Customer Information in connection with Adam and all other Services is governed by Travtus’ privacy policy, available at[JK1] www.travtus.com/privacy (the “Privacy Policy”). Customer represents and warrants that is will obtain all consents necessary for Travtus to provide the Services, including Adam, in connection with this Agreement and the Privacy Policy.
6. DISCLAIMERS; LIMITATION OF LIABILITY.
a.EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND TRAVTUS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE OR SERVICES PROVIDED HEREUNDER OR THAT THE SOFTWARE OR SERVICES PROVIDED WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE.
b. TRAVTUS SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST REVENUE OR PROFITS, LOSS OF OPPORTUNITY OR DISRUPTION OF BUSINESS) OF THE CLIENT OR ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c.NOTWITHSTANDING ANYTHING TO THE CONTRARY, CLIENT’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION AGAINST TRAVTUS, ITS AFFILIATES, ITS VENDORS OR ITS SUBCONTRACTORS IN CONNECTION WITH THE PERFORMANCE OF THE SOFTWARE AND/OR SERVICES AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY, TORT INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE ACTION) SHALL BE LIMITED TO PAYMENT FOR ACTUAL DAMAGES UP TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO TRAVTUS FOR THE ORDER FORM UNDER WHICH THE CAUSE OF ACTION RELATES DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
7. Term and Termination
a.Term. Unless otherwise set forth in an Order Form, the term of this Agreement and all Order Forms shall commence on the Effective Date, with respect to this Agreement, and on the effective date of each Order Form with respect thereto, and shall continue for a period of three years thereafter (the “Initial Term”). After the Initial Term, this Agreement and each Order Form shall automatically renew for successive periods of one (1) year each (each, a “Renewal Term” and the Initial Term and any Renewal Terms shall be collectively known as the “Term”) unless either party provides written notice of its intent not to renew at least ninety (90) days prior to the end of the then-current Term.
b. Termination. The Agreement and/or any Order Form may only be terminated prior to the expiration of the Initial Term or then current Renewal Term as follows:
(i) In the event Customer fails to pay Travtus any Fees or other payments due hereunder, in addition to any other available rights and remedies, Travtus shall have the right, in its sole discretion, to terminate the Agreement upon providing written notice of default to Customer and a ten (10) day opportunity to cure such default. All Fees and other payments due hereunder shall continue to be due and immediately payable.
(ii) In the event that either party breaches any term or condition of the Agreement in any material respect, the other party shall have the right to terminate the Agreement if the breaching party fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party, which notice shall specify the nature of the default.
(iii) Either party may terminate the Agreement immediately upon written notice in the event: (A) the other party commences or becomes the subject of any bankruptcy, insolvency, or equivalent case or proceeding; (B) the other party makes a general assignment for the benefit of its creditors; (C) a trustee or receiver is appointed for the other party, or for any of its property; or (D) any petition by or on behalf of the other party is filed to take advantage of any debtor’s act or to reorganize under the bankruptcy or similar laws, which petition is not removed within sixty (60) days after filing.
(iv) Travtus may, in its sole discretion, terminate the Agreement immediately upon written notice in the event of any unauthorized or unlawful usage by Customer or any third party gaining access to the Software, directly or indirectly, through or as a result of Customer’s use of the Software.
(v) Travtus may terminate a free or test account at any time in its sole discretion.
c.Effect of Termination.
(i) Upon termination of the Agreement or any Order Form, Customer may no longer access the relevant Travtus Materials or any rights or licenses granted to Customer under each Order Form that has been terminated.
(ii) The terms of Sections 3, 4(a), 4(c), 6, 8, 9, 10 and 11 shall survive the termination or expiration of the Agreement.
(iii) Customer will remain liable after termination or expiration (1) for all applicable Fees and other charges accrued hereunder prior to such termination, and (2) if terminated earlier than the expiration date and unless otherwise agreed to in an Order Form, for termination fees equal to the total remaining fees under all Order Forms that would have been payable by Customer for the remainder of the then current Term but for the early termination.
8. Confidentiality; Use of Customer Information.
a.“Confidential Information” means any and all business, financial or technical information or data in any form or medium, tangible or intangible, used in or relating to the business activities or operations of the disclosing party which is disclosed, either orally or in writing, by the disclosing party to the receiving party, whether on, before or after the date of the Agreement, including without limitation Intellectual Property Rights; data, know-how, business rules, reports, summaries, processes, samples, ideas, research and development, security procedures and passwords; computer software and programs; business plans, financial information, customer lists, current price lists; personally-identifiable information, as defined under applicable law; and any other information obtained from the disclosing party which is not known to the public. Confidential Information shall include the existence of the Agreement and its Order Forms and any and all of the terms of the foregoing.
b. Each party shall take all reasonable steps to prevent the disclosure of the other party’s Confidential Information in violation of the Agreement, which shall be no less than the steps it takes to protect its own Confidential Information. Each party shall use its reasonable efforts to confine knowledge of the other party’s Confidential Information to its employees and agents who have a reasonable need to know Confidential Information disclosed hereunder (“Representatives”) provided that prior to any disclosure to a Representative such Representative has either (1) executed a written agreement to keep such Confidential Information confidential on at least the same terms as described herein, or (2) is subject to a professional obligation to maintain the confidentiality of such information; and provided further that the receiving party shall remain liable to the disclosing party for any breaches of the Agreement by its Representatives.
c.Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
d. Confidential Information shall not include information that (1) is or becomes publicly available through no breach or omission of the receiving party; (2) was lawfully in the possession of the receiving party prior to the disclosure of by the disclosing party; (3) is lawfully disclosed to the receiving party from a source other than the disclosing party, provided that such source is not bound by any fiduciary, contractual or legal duties of confidentiality; and (4) is lawfully and independently developed by the receiving party, which can be established by written evidence.
e.In order for Travtus to provide the Software and/or Services and deliver the Deliverables, Customer may provide Travtus Customer Information. Customer hereby grants Travtus, during the Term, a limited, non-exclusive, royalty-free right and license to have access to and make use of the Customer Information as necessary to provide Software and/or Services and delivery of Deliverables. In addition, Customer hereby grants Travtus, a perpetual, non-exclusive, royalty-free right and license to use Customer Information, on an a de-identified, aggregated or otherwise anonymized basis, for research, analytics and benchmarking purposes and to improve Travtus’ products and Services, including the right to share the results of the foregoing with third parties.
f. Customer expressly acknowledges and agrees that any ideas, concepts, know-how, methods, models, data, techniques, business rules, skill, knowledge and experience that were or are used, developed or gained by Travtus or any of its personnel and all components thereof, including without limitation the Travtus Materials and any websites, systems, reports or tools made available to Customer in connection with the performance of the Software and/or Services and delivery of the Deliverables are owned by Travtus as provided herein and are the Confidential Information of Travtus.
g. Upon termination of this Agreement for any reason, or upon or on the disclosing party’s request at any time, the receiving party will promptly destroy all notes, memoranda, programs, computer memory media, equipment and all other materials containing the disclosing party’s Confidential Information and will not retain any copies thereof, other than as permitted under this Agreement. The receiving party shall promptly provide the disclosing party with written certification of such destruction of Confidential Information. To the extent that any Confidential Information is retained as permitted hereunder, or to the extent that copies of any Confidential Information are stored in electronic archives or backups made in the ordinary course of business in accordance with applicable legal, disaster recovery and professional requirements, all such Confidential Information shall continue to be governed by the provisions of this Section 8. Notwithstanding anything to the contrary, at Customer’s request and cost, Travtus may provide Customer with copies of the Customer Information in Travtus’ possession, in a file format to be determined in Travtus’ reasonable discretion.
9. Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, neither Customer nor Travtus shall, directly or indirectly solicit, employ or retain, or assist any other individual, person, firm or other entity in soliciting, employing or retaining, any employee, contractor or other agent of the other party or any of its affiliates, including, without limitation, any former employee, contractor or other agent of the other or any of its affiliates who ceased working for the other party or any of its affiliates within a six (6) month period before the date on which the Agreement is terminated. For the purposes of this Section, solicitation does not include the advertisement of employment opportunities by a party in any public forum (including magazines, trade journals, publicly accessible internet sites, classified advertisements, or job fairs open to the public) and the hiring of an individual as a result of his or her response to such a general employment advertisement or in response to his or her unsolicited employment inquiry shall not constitute a breach of the Agreement.
10. Indemnification.
a.Customer agrees to indemnify, defend and hold harmless Travtus and its affiliates, subsidiaries, employees, agents, shareholders, officers, directors and attorneys from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (1) a claim alleging that use of the Customer Information infringes the rights of, or has caused harm to, a third party; (2) any breach of Customer’s representations or warranties or Customer’s failure to fulfill any of its obligations under the Agreement, including, but not limited, to Customer’s failure to maintain its own hardware; (3) Customer’s violation of applicable law.
b. Travtus agrees to indemnify, defend and hold harmless Customer and its affiliates, subsidiaries, employees, agents, shareholders, officers, directors, and attorneys from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with any third party claims alleging that the Software and/or Services (excluding any Customer Information therein) directly infringes any validly issued U.S. copyright, patent or trademark of a third party. Travtus shall have no indemnity obligations hereunder, and Customer shall indemnify, defend and hold harmless Travtus, with respect to any infringement or other third party claim is caused in whole or in part by the combination of any of the Software and/or Services, or any portion thereof, with any products, services, or other item of Customer or any third party or any modification of the Software and/or Services by Customer or its third party agent. Should the Software and/or Services or any part thereof become, or in Travtus’ opinion be likely to become, the subject of any claim of infringement, Travtus shall, at its option, either: (1) obtain for Customer the right to continue using the Software and/or Services; (2) replace or modify the affected portion of the Software and/or Services so that the use thereof becomes non-infringing or otherwise lawful; or (3) terminate this Agreement and refund to Customer any prepaid but unused Fees as of the date of termination.
c.Each party’s respective indemnification obligations hereunder are conditioned upon the party seeking indemnification: (1) promptly giving written notice of the claim to the indemnifying party; (2) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (3) providing to indemnifying party all available information and reasonable assistance upon request.
11. General.
a.Assignment. This Agreement shall be binding upon and shall inure to the benefit of Travtus and Customer and their respective successors and permitted assigns. This Agreement may not be assigned by either party, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), upon written notice but without consent of the other party, in connection with a (i) merger, acquisition, corporate reorganization resulting in a change of voting control, or (ii) sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. The parties do not intend the benefits of the Agreement to inure to any third party, and nothing contained herein shall be construed as creating any right, claim or cause of action in favor of any such third party against either of the parties hereto.
b. Force Majeure. Neither party shall be liable for any delay (except for obligations to pay all Fees and other payments hereunder) or other failure of performance caused by reasonably unforeseeable factors beyond its control, including without limitation strikes, riots, insurrection, labor shortage, earthquake, hurricane, epidemic, war, acts of terrorism, fire, acts of God, or governmental acts or regulation.
c. Invalidity. If any provision of the Agreement (or any portion thereof) shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder hereof shall not in any way be affected or impaired thereby.
d. Headings. The headings in the Agreement are intended for convenience of reference and shall not affect its interpretation.
e. Entirety. This Agreement, its Order Forms and any related exhibits or amendments contain the entire agreement of the parties with respect to its subject matter and supersede all existing agreements and all other oral, written or other communications between them concerning its subject matter.
f. Waiver. Neither party’s failure to enforce strict performance of any provision of the Agreement will constitute a waiver of a right to subsequently enforce such a provision. No written waiver shall constitute, or be construed as, a waiver of any other obligation or condition of the Agreement.
g. No Modification. This Agreement may be amended by the parties, provided that no amendment, modification or waiver of the Agreement shall be valid unless made in writing and signed by an authorized representative of the party to be charged.
h. Independent Contractor. The parties are independent contractors, and nothing in the Agreement or the performance of the Services or the delivery of Deliverables shall be considered to create a partnership, joint venture or similar relationship between the Parties.
i. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflict of law provisions. Each party agrees that any dispute shall be brought exclusively in the state or federal courts sitting within the judiciary district of the United States District Court in the Eastern District of Pennsylvania, Philadelphia County, and that it will submit to the jurisdiction of the state or federal courts therein, and to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
j. Notices. All demands, notices and communications required or permitted under this Agreement shall be in writing and shall be deemed given (a) upon personal delivery to the party to be notified, (b) upon sending if by facsimile or email (both with confirmation), if sent during normal business hours and, if not, then on the next business day, (c) three (3) days after mailing, if sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after dispatch, if sent by a nationally recognized overnight courier, with respect to Travtus, to the address first listed above, and with respect to Customer, to the address first provided by Customer when registering for an account or making a purchase on the Travtus website, or to such other address as may hereafter be furnished to the other party by like notice.
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