Vendr Master Services Agreement
This Master Services Agreement (the “Agreement”) is between Vendr, Inc., a Delaware corporation with its principal place of business located at 501 Boylston Street, 10th Floor, Boston, MA 02116 (“Vendr”), and the entity listed on the Order Form (“Client”), and is effective as of the effective date of the initial Order Form between the parties (the “Effective Date”). Vendr and Client are each a “Party” and collectively the “Parties.” The Parties hereby agree as follows:
1.1 Platform and Services. Subject to the terms and conditions of this Agreement, Vendr shall provide Client with access to Vendr’s software-as-a-service platform (“Platform”) that allows Client’s authorized employees and contractors (“Users”) to access certain features and functionality through a web interface on Vendr’s website. Additionally, Vendr may provide Client with certain professional services with respect to Client’s technology vendor contracts (the “Professional Services” and together with the Platform, the “Services”). All Services applicable to Client will be (a) mutually agreed to and set forth in one or more mutually executed order forms which reference this Agreement, or (b) ordered by Client through Client’s account on Vendr’s website (each, an “Order Form”). In the event Client requests Professional Services, Client acknowledges and agrees that Vendr shall have sole discretion in staffing the Professional Services and Vendr shall remain liable for all acts and omissions of such individuals.
1.2 Platform Use; Platform Modifications. Subject to the terms and conditions of this Agreement, Vendr grants Client and its Users a limited, revocable, non-exclusive, non-transferable right to access and use the Platform during the Term (as defined below) in accordance with the terms of this Agreement and applicable Order Form for its internal business purposes. Vendr reserves the right to modify the Platform at any time, provided that, except for Free Services (defined below), such modifications do not materially and adversely impact or degrade the overall Platform provided by Vendr to Client.
1.3 Platform Restrictions; Monitoring. Client shall (a) be responsible for its Users’ compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and notify Vendr promptly of any such unauthorized access or use, and (c) use the Platform only in accordance with the documentation made available by Vendr (as subject to change from time to time) and applicable laws and government regulations. Additionally, Client shall not: (i) make the Platform available to anyone other than Users; (ii) sell, resell, rent or lease the Platform; (iii) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (iv) use the Platform to store or transmit viruses or malicious code; (v) interfere with or disrupt the integrity or performance of the Platform; (vi) attempt to gain unauthorized access to the Platform or any related systems, software or networks (vii) or de-compile, decrypt, reverse engineer, disassemble, or otherwise reduce the Platform to human-readable form or attempt to access the source code of the Platform; or (viii) use or view the Platform to create a product or service that is competitive with the Platform (the preceding (i) – (viii) collectively, the “Restrictions”). Vendr shall have the right (but not the obligation) to monitor Client’s and Users’ use of the Platform to confirm Users’ compliance with the terms of this Agreement, it being understood that such monitoring shall not require any additional information or efforts by Client and shall not interfere with Client’s use of the Platform.
1.4 Ownership. Vendr owns all right, title, and interest in and to the Platform and all Services, and all software, tools, materials, specifications, ideas, concepts, inventions, processes, techniques, know-how, deliverables, and work product used or developed by Vendr in connection with its performance of the Services. In the event Client provides Vendr with any feedback or suggestions related to the Services (“Feedback”), Client grants Vendr a royalty-free, fully-paid-up, perpetual, irrevocable right and license to use Feedback for any lawful purposes, including without limitation incorporating Feedback into the Services. Any Feedback is provided for “as is” and shall not identify Client or any Client Confidential Information. No rights are granted to Client hereunder other than as expressly set forth herein.
1.5 Client Responsibilities; Other Service Providers. Client shall (a) designate at least one (1) employee with knowledge of Client’s business as its primary contact to be available for communication with Vendr in providing the Services, (b) provide Vendr with accurate and complete information and timely decisions and approvals, upon which Vendr will be entitled to rely, and (c) provide Vendr with such reasonable assistance and access as Vendr may reasonably request, including by making available to Vendr, at no charge, all personnel and information reasonably required by Vendr for the performance of the Services.
2. FEES; TAXES
2.1 Free Services. If Client orders certain Services clearly indicated as “Free” (on an Order Form) or otherwise agreed upon by the Parties (“Free Services”), Vendr retains the right to charge Fees for any such Free Services at a later date by providing at least thirty (30) days’ advanced written notice to Client.
2.2 Fees. Client shall pay Vendr the applicable fees for the Services in accordance with each Order Form (“Fees”). If paying by credit card or other valid payment method accepted by Vendr (“Payment Account”), Client hereby authorizes Vendr and its third party payment processing service provider (“Payment Processor”) to charge the Payment Account for the applicable Fees upon the applicable due date, as indicated in the applicable Order Form. Client authorizes Vendr to provide the Payment Processor with Client’s payment and Payment Account information.
2.3 Payment. Fees are quoted and payable in United States dollars, payment obligations are non-cancelable, and all Fees are nonrefundable in all respects except as otherwise provided for in this Agreement. Client shall reimburse Vendr for all reasonable expenses incurred in accordance with any Order Form, so long as such expenses are preapproved by Client in writing.
2.4 Disputes. In the event any Fees are subject to a good faith dispute by Client, Client shall notify Vendr in writing within ten (10) days after the payment due date, and shall continue payment of all undisputed Fees pending the outcome of the dispute resolution. In the event that Vendr is unable to charge Client’s Payment Account or does not receive payment within ten (10) days after the applicable due date, Vendr reserves the right to suspend the Services until payment is received.
2.5 Taxes. The Fees exclude, and Client will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on Vendr’s income). In the event Client is subject to withholding taxes, Client shall gross up its payment to Vendr such that Vendr receives the full amount listed in the applicable invoice.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Mutual Representations and Warranties. Each party represents and warrants that: (a) it is an entity in good standing in the jurisdiction in which it is registered; (b) it has full right, power, and authority to enter into this Agreement and to bind itself to the terms and conditions herein, and that it is not a party to any other agreement that conflicts with its ability to enter into this Agreement; and (c) it will comply with all applicable federal, state, and local laws and regulations in respect to its performance of its obligations hereunder.
3.2 Vendr Representations and Warranties. Vendr further represents and warrants that: (a) to the extent applicable, the Professional Services will be provided in a professional and workmanlike manner using personnel with the appropriate knowledge and skills; and (b) the Platform, with the express exception of the Free Services, and its functionality will not be materially degraded during the Term. During the Term, Vendr will implement and maintain an information security program that is reasonably designed to: (i) ensure the security, integrity and confidentiality of Client’s Confidential Information; (ii) protect against anticipated threats or hazards to the security or integrity of Client’s Confidential Information; and (iii) protect against unauthorized access to or use of Client’s Confidential Information.
3.3 Client Representations and Warranties. Client further represents and warrants that it is solely responsible for obtaining and maintaining any consents, approvals, rights, and licenses necessary for Vendr to use as permitted hereunder, the Client Services Data.
3.4 WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS SECTION 3, ALL SERVICES ARE PROVIDED “AS IS”, AND, TO THE EXTENT LEGALLY PERMISSIBLE, VENDR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE. FURTHER, VENDR MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
4. TERM AND TERMINATION.
4.1 Term. The term of this Agreement will commence on the Effective Date and continue for as long as there is at least one Order Form in effect, unless earlier terminated as provided herein (the “Term”).
4.2 Termination. Either party may terminate this Agreement if the other party breaches any material provision of the Agreement and does not cure such breach within thirty (30) days following written notice to the breaching party.
4.3 Requirements Upon Termination. Upon termination of an Order Form for any reason:
a. Client shall promptly pay to Vendr all outstanding amounts due;
b. all rights granted by Vendr under such Order Form shall cease and Client shall immediately cease all use of the Platform and the Services; and
c. Sections 1.3, 1.4, 4.3, and 5 through 9 will survive the termination or expiration of this Agreement.
5. CLIENT INFORMATION.
5.1 Client Platform Data. All Client data uploaded into the Platform by or on behalf of Client or the Users (“Client Platform Data”) is, as between the Parties, owned by Client.
5.2 Client Services Data. All data and information, including Client Platform Data, that Client provides or makes available to Vendr, or that Vendr learns or collects in connection with its provision of the Services, in each case that relates to Client’s internal technology stack, changes Client is considering making to its technology stack, Client’s current technology suppliers and suppliers it is considering engaging, and its current and prospective technology supplier contracts, including technology, products, and services Client has already purchased and is considering purchasing, and associated pricing, discounts, purchasing tactics and processes, contractual terms, and related information, whether or not provided to Vendr directly through the Platform or through communications with Vendr’s personnel (collectively, “Client Services Data”), is, as between the Parties, owned by Client.
5.3 Vendr’s Use of Client Services Data. Client acknowledges and agrees that Vendr’s access to and use of Client Services Data and similar content from Vendr’s other clients is an integral and necessary part of Vendr’s provision of Services to Client and similar services to Vendr’s other clients. Therefore, Client grants Vendr a non-exclusive, perpetual, irrevocable (other than for Vendr’s uncured breach), fully paid-up right and license to access, reproduce, create derivative works, distribute, and use the Client Services Data solely for the purposes of providing the Services to Client and providing similar services to Vendr’s other clients, improving the Services and Vendr’s services generally, and to otherwise fulfill its obligations and exercise its rights under this Agreement, provided, however, that (i) when disclosing any Client Services Data to Vendr’s other clients, Vendr will not specifically identify Client or any of its personnel by name; and (ii) Client Services Data will be anonymized, de-identified, and/or aggregated. Notwithstanding the foregoing, Client agrees that Vendr may provide business contact information of Client and its personnel, including names and email addresses, to Vendr’s other clients and business partners for the purpose of facilitating potential transactions between Client and such parties.
6.1 Confidential Information. From time to time during the Term, either party (as the “Discloser”) may disclose or make available to the other party (as the “Recipient”) certain non-public information, including with respect to the Discloser’s business affairs, confidential intellectual property, products, services, research, developments, designs, financial or pricing information, customers, or the terms of this Agreement, whether orally or in written, electronic or other form or media, in each case that is marked confidential or should otherwise reasonably be understood to be confidential in light of the nature of the information and circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence by the Recipient: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Recipient or any of its employees, contractors or agents; (b) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Recipient or its employees, contractors or agents before being disclosed by or on behalf of the Discloser; or (d) was or is independently developed by the Recipient without reference to or use, in whole or in part, of any of the Discloser’s Confidential Information.
6.2 Obligations. The Recipient shall: (i) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Discloser’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Recipient’s employees, contractors and agents who need to know the Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Recipient shall be responsible for any breach of this Section caused by any of its employees, contractors or agents. At any time during or within thirty (30) days after the Term, and at the Discloser’s written request, the Recipient will promptly return to the Discloser all copies, whether in written, electronic or other form or media, of the Discloser’s Confidential Information, or, at the Recipient’s election, destroy all such copies and confirm in writing to the Discloser that such Confidential Information has been destroyed; provided, however, the Recipient may retain Confidential Information in accordance with its standard backup or record retention policies or as required by law. Notwithstanding the foregoing in this Section 6.2 or anything to the contrary elsewhere in this Agreement, Client acknowledges and agrees that Vendr may retain, use, and disclose Client’s Confidential Information consisting of Client Services Data during and after the Term solely in accordance with Section 5.3.
6.3 Injunctive Relief. In addition to all other remedies available at law, the Discloser may seek equitable relief (including injunctive relief) against the Recipient to prevent the breach or threatened breach of this Section and to secure its enforcement. In the event the Recipient is required to disclose the Discloser’s Confidential Information under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, then the Recipient may disclose such Confidential Information, so long as the Recipient (to the extent not legally prohibited) gives reasonable advance notice to the Discloser in advance of such disclosure, seeks confidential treatment of such information from the entity to which the disclosure is made, and discloses only that information which is legally required to be disclosed.
7.1 Vendr Indemnification. Vendr shall defend, and hold harmless Client and its Affiliates, and the respective officers, directors, employees, and agents of the foregoing entities (the “Client Indemnified Parties”) from and against any third party action, claim, suit, demand, cause of action, or proceeding (each, a “Claim”) brought against the Client Indemnified Parties to the extent that the Claim is based upon: (a) an allegation that the Platform (other than any Free Services), when used by the Client Indemnified Parties as permitted hereunder, infringes any third party U.S. patent, copyright, or trademark; or (b) Vendr’s gross negligence or willful misconduct, and indemnify the Client Indemnified Parties against all reasonable outside attorney’s fees incurred by and damages finally awarded or settled against the Client Indemnified Parties in such Claim. In the event the Platform is enjoined, or in Vendr’s reasonable opinion is likely to be enjoined, Vendr shall do one of the following, in its discretion: (i) procure for Client the right to continue using the Platform, (ii) modify or replace the Platform such that it is non-infringing but functionally equivalent, or (iii) terminate the applicable Order Form and provide to Client a prorated refund of any prepaid, unused Fees as of the termination date. The foregoing states Client’s exclusive remedy and Vendr’s sole liability with respect to an infringement Claim under Section 7.1(a) herein. The term “Affiliate” means an entity controlled by, controlling, or under common control with a party. All obligations contained in this Agreement shall extend to and be binding upon the parties to this Agreement and their respective successors, assigns and designees.
7.2 Client Indemnification. Client shall defend, and hold harmless Vendr and its Affiliates, and the respective officers, directors, employees, and agents of the foregoing entities (the “Vendr Indemnified Parties") from any Claim brought against the Vendr Indemnified Parties to the extent the Claim is based upon (a) Client’s use of the Platform in violation of the Restrictions in Section 1.3 of this Agreement; (b) an allegation that any Client Services Data, when used by the Vendr Indemnified Parties as permitted hereunder, infringes, misappropriates, or otherwise violates the rights, including intellectual property rights, of any third party, or violates the terms of any agreement between Client and any third party; or (c) Client’s alleged gross negligence or willful misconduct, Client shall indemnify the Vendr Indemnified Parties against all reasonable outside attorney’s fees incurred by and damages finally awarded or settled against the Vendr Indemnified Parties in such Claim.
7.3 Indemnification Procedure. The obligations provided in this Section 7 are conditioned on the party seeking indemnity (“Indemnified Party”) (a) providing prompt written notice of the Claim to the party from whom indemnification is sought (“Indemnifying Party”), (b) providing the Indemnifying Party sole control of the defense and settlement of the Claim including selection of counsel (it being understood that the Indemnifying Party shall not settle any Claim where such settlement attributes culpability to the Indemnified Party or imposes any liability upon the Indemnified Party, without the Indemnified Party’s prior written consent), and (c) providing the Indemnifying Party all reasonable assistance requested by the Indemnifying Party, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense of the Claim at its own expense.
8. LIMITATION OF LIABILITY.
8.1 IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HAVE ANY LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.2 EXCEPT WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, CLIENT’S BREACH OF THE RESTRICTIONS SET FORTH IN SECTION 1.3, AND VENDR’S BREACH OF ITS OBLIGATIONS SET FORTH IN THE DPA, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID OR PAYABLE BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS. THE FOREGOING SHALL NOT LIMIT CLIENT’S UNDISPUTED PAYMENT OBLIGATIONS. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL VENDR’S LIABILITY TO CLIENT ARISING OUT OF OR RELATED TO THE FREE SERVICES OR CLIENT’S USE OR INABILITY TO USE THE FREE SERVICES EXCEED $100. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
8.3 Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 8 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that all prices have been set and the Agreement entered into in reliance upon such limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
9. GENERAL PROVISIONS.
9.1 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that either party may assign this Agreement to an Affiliate, or in connection with the reorganization, or merger or sale of all or substantially all of its assets and/or stock. Any attempted assignment or delegation in violation of this section will be null and void ab initio.
9.2 Notices. Any notice required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally; delivered by reputable overnight courier; mailed by first-class, registered or certified U.S. mail, postage prepaid to the address set forth in the Order Form; or by email: (i) in the case of Client receiving notice, to the notice email in the applicable Order Form; and (ii) in the case of Vendr receiving notice, to firstname.lastname@example.org.
9.3 Publicity. Vendr may use Client’s name in its customers lists and disclose that Client is a client of Vendr. Any other uses of Client’s name or logo require Client’s prior written consent (e-mail sufficient) in each instance.
9.4 Governing Law and Venue.
a. If Client is located in the U.S., Canada and Mexico: This Agreement is governed by and construed under the laws of the State of Delaware, without regarding to its conflict of laws principles. Any claim, suit, controversy, or cause of action arising under or relating to this Agreement shall be brought in the state or federal courts located in New Castle County, Delaware, and the parties agree to the exclusive personal jurisdiction of such courts. The Parties unconditionally and irrevocably waive any right to trial by jury in any action, suit, or proceeding arising out of or relating to this Agreement.
b. If Client is located outside of U.S., Canada and Mexico: This Agreement is governed by and construed under the laws of England and Wales, without regarding to its conflict of laws principles. Any claim, suit, controversy, or cause of action arising under or relating to this Agreement shall be brought in the state or federal courts located in London, England.