MSP Services Agreement
Subject to an Order issued pursuant to this Agreement, Bocada agrees to provide and Licensee agrees to purchase Services in accordance with the Service Terms and Conditions (and the documents referenced therein), attached hereto and incorporated herein by this reference.
- DEFINITIONS In addition to terms defined elsewhere in this Agreement, where
capitalized, the following words shall be defined as follows:
- “Order” means a Quotation which has been accepted by Licensee, as evidenced by Licensee’s issuance of a Purchase Order with specific reference to such Quotation, excluding any conflicting or preprinted terms and conditions on the Purchase Order form.
- “Professional Services” means the training, configuration, feature development and any other services provided by Bocada (excluding Support Services) relative to the Software and/or Licensee’s use of the Software.
- “Purchase Order“ means Licensee’s written acceptance of a Quotation for Services from Bocada, signed by an authorized representative of Licensee.
- “Quotation” means a document issued by Bocada, specifying at minimum: (i) the Services to be provided by Bocada; (ii) all applicable fees owed by Licensee for the provision of Services; and (iii) the term of the Service, if applicable.
- “Services” means both Professional Services and Support Services provided by Bocada pursuant to this Agreement.
- “Software“ means the machine-readable object code copy of the Bocada software for which Licensee is an end user licensee.
- “Support Services“ means maintenance and support Services relative to the Software.
- “Support Services Fee“ means fee(s) listed in an Order related to the provision of Support Services.
- “Support Services Term” means the period of time Bocada will provide Support Services to Licensee, as outlined in an applicable Order, but no less than twelve (12) consecutive months beginning on the commencement date of the term of Licensee’s license with respect to the applicable Software.
- SCOPE OF SERVICES
- Support Services. Subject to an Order, Bocada will provide Support Services in accordance with the terms and conditions of this Agreement and the supplemental terms and conditions outlined in Bocada’sSupport Services Description located at http://www.bocada.com/terms/support-services, incorporated herein by this reference, as modified by Bocada from time to time.
- Professional Services. Professional Services may be purchased from Bocada in accordance with the terms and conditions of this Agreement and the supplemental terms and conditions outlined in a Quotation.
- Subcontracting. Bocada may use qualified sub-contractors to fulfil all or part of the Services; provided that such sub-contractors shall be the sole responsibility of Bocada.
- TERM
- Term of Agreement. The term of this Agreement shall commence on the Effective Date and will continue until terminated as provided for herein.
- Support Services Term. The Support Services Term is as specified in the applicable Order. If Licensee does not give Bocada notice of termination at least thirty (30) days prior to the end of the then-current Support Services Term, then Support Services shall automatically renew for a period equal to the then-current Support Services Term, and Bocada will invoice Licensee accordingly. If Bocada intends to change the Support Services fee for a renewal term, then Bocada shall provide written notice of the new rate at least sixty (60) days prior to the expiration of the then-current Support Services Term. If Bocada did not provide notice of a rate change, the then current rate will continue to apply throughout the renewal term.
- CONSIDERATION
- Invoicing.
- Support Services. Bocada shall invoice the Support Services Fee, with respect to the entire Support Services Term, in advance.
- Professional Services. Bocada shall invoice Licensee monthly, unless otherwise expressly stated in the applicable Order.
- Payment. All payments due hereunder shall be made in United States dollars ($US) within thirty (30) days of the invoice date. Any amount payable by Licensee to Bocada hereunder which is past due shall be subject to a late payment charge equal to the lesser of 1% per month or the maximum rate allowed under law.
- Taxes. Service fees outlined in an Order do not include any sales, use, excise, import or export, withholding, value added or similar tax and any and all other duties or fees imposed by any governmental entity with respect to the purchase of Services (collectively, the "Taxes"). Licensee is responsible directly to all taxing authorities, and shall indemnify and hold Bocada harmless from any and all such Taxes (including any interests or penalties) in connection with Licensee’s failure to pay such Taxes directly.
- Dispute Process. If Licensee disputes any invoiced amount, then on or before the due date Licensee shall pay all charges not disputed, and notify Bocada of the dispute in writing providing an explanation of the issue in dispute. The parties will cooperate in good faith to resolve any such disputes within a thirty (30) day period after the dispute is submitted to Bocada. If the dispute is not resolved during this period, then either party may seek dispute resolution in accordance with Section 10(F). If a disputed amount is determined to be a legitimate charge, Licensee will pay such amount within five (5) business days of such determination.
- Invoicing.
- WARRANTY
- Licensee represents and warrants that it is an entity, duly organized, validly existing and in good standing under the laws of its origin, with all requisite power to enter into and perform its obligations under this Agreement in accordance with its terms as well as all applicable federal, state and local laws.
- Bocada warrants that (i) it is an entity, duly organized, validly existing and in good standing under the laws of its origin, with all requisite power to enter into and perform its obligations under this Agreement; (ii) it will perform the Services in a professional and workmanlike manner, in accordance with generally accepted industry standards, and in substantial conformance with the written specifications or other written description of the Services within the applicable Order. Licensee’s exclusive remedy, and Bocada’s entire liability in the event of a breach of this warranty, shall be the re-performance of the Services.
- WITH THE EXCEPTION OF ANY CONDITION OR WARRANTY IMPLIED BY STATUTE WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT AND ANY WARRANTY EXPRESSLY SET FORTH IN THIS AGREEMENT, BOCADA MAKES NO WARRANTIES IN RELATION TO THE SOFTWARE, DOCUMENTATION, OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL OPERATE UNINTERUPTED OR ERROR FREE. NO WARRANTY IS MADE REGARDING THE RESULTS OF USAGE OF THE SOFTWARE OR THAT THE SOFTWARE’S FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS.
- THIS SECTION IN ITS ENTIRETY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- INDEMNIFICATION
Each party shall defend, indemnify and hold harmless the other party and its parent, affiliates and subsidiaries, and their officers, directors, shareholders, agents, employees, and representatives from all claims, suits, actions, demands, damages, liabilities, expenses (including reasonable fees and disbursements of counsel), judgments, settlements and penalties of every kind made by or payable to a third party and arising from any bodily injury (including death) or physical damage to tangible or real property to the extent permitted by law, and arising in whole or in part from the negligence, misconduct or other fault of the indemnifying party or anyone acting under the indemnifying party’s direction, control, or on its behalf; provided, however, that if a claim is the result of the joint negligence, joint misconduct, or joint fault of Bocada and Licensee, the amount of the claim for which the indemnified party is entitled to indemnification shall be limited to that portion of the claim attributable to the negligence, misconduct or other fault of the other or anyone acting under such party’s direction, control, or on its behalf.
- LIMITATION OF LIABILITY
- IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES RELATING TO OR ARISING FROM THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, (i) THE LOSS OF USE, REVENUES, PROFITS, GOODWILL OR SAVINGS, (ii) THE LOSS, CORRUPTION OR INACCURACY OF DATA, DATA FILES OR PROGRAMS FOR ANY REASON INCLUDING ANY INFORMATION PRESENTED BY THE SOFTWARE, OR (iii) THE DISRUPTION OF NETWORKS, OPERATING SYSTEMS, HARDWARE OR OTHER SOFTWARE.
- BOCADA’S LIABILITY TO LICENSEE FOR DIRECT DAMAGES SHALL BE LIMITED TO THE SERVICE FEES PAID TO BOCADA PURSUANT TO THE ORDER ASSOCIATED WITH THE LIABILITY.
- THIS SECTION IN ITS ENTIRETY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- TERMINATION
- Termination for Cause. Either party may terminate any Service provided pursuant to this Agreement if (i) the other party breaches a material term of this Agreement, and (ii) the non-breaching party has notified the breaching party in writing, and (iii) the breaching party has not cured such breach either within five (5) business days of receipt of notice of failure to make a payment when due, or within thirty (30) days of receipt of notice for any other types of breach. Unless otherwise expressly provided, termination for cause shall not limit either party from pursuing all available remedies under this Agreement, at law or in equity.
- Termination for Convenience. Licensee may terminate this Agreement at any time for convenience upon written notice.
- Obligations Upon Termination. Except in the case of Licensee’s termination pursuant to subsection (A) above, in the event of termination of Services Licensee shall promptly pay Bocada (i) with respect to termination of Support Services, any unpaid Support Services Fees through the Support Services Term; and (ii) with respect to termination of Professional Services, the fees for Services completed or Deliverables provided to Licensee (including all work-in-progress and expenses related thereto) prior to and including the effective date of termination. If a Service is terminated by Licensee pursuant to subsection (A), Licensee shall be entitled to a refund of any pre-paid Support Services Fees, pro rated from the date of termination through the remainder of the Support Services Term. The parties agree that the foregoing shall be Licensee’s sole remedies with respect to termination for cause by Licensee, and Licensee hereby waives its rights to all other claims for remedies, at law or in equity.
- CONFIDENTIALITY
- Confidential Information. During the term of this Agreement, each Party may come into contact with, or acquire confidential information of the other Party. “Confidential Information” means all confidential, trade secret, and proprietary information of a disclosing Party (the “Disclosing Party”), including any nonpublic information relating to the Disclosing Party’s technologies, products, promotional and marketing activities, finances and financial plans, customers, business plans, analyses, models, key personnel and contacts, business targets, strategies and objectives, capabilities, business affairs, and any third party information that Disclosing Party is otherwise obligated to keep confidential, which may be disclosed or otherwise made available to the other party in writing or otherwise (including information in computer software or held in electronic storage media), and that should reasonably have been understood by the recipient (the “Receiving Party”) to be proprietary information because of (i) legends or other markings; (ii) the circumstances of disclosure; or (iii) the nature of the information, or by oral, visual or other means. Unless otherwise stipulated by both Parties, Confidential Information includes the fact of the existence of this Agreement, and all of its terms and conditions. Such Confidential Information is, and shall remain, the exclusive property of the Disclosing Party. By disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information of Disclosing Party, and Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets.
- Exclusions. Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Receiving Party's breach of any obligation owed Disclosing Party; (ii) was known to Receiving Party prior to Disclosing Party's disclosure of such information and without a restriction on disclosure; (iii) is or subsequently becomes known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is disclosed by the Disclosing Party to a third party generally without a restriction of confidentiality on such third party; or (v) is independently developed by Receiving Party without the use of Confidential Information.
- Obligations. Receiving Party shall: (i) refrain from disclosing any Confidential Information to any third party for three (3) years following termination of this Agreement; (ii) take reasonable security precautions to guard the Confidential Information against unauthorized disclosure, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care; and (iii) refrain from using the Confidential Information, except to the extent reasonably required for the performance of the Receiving Party’s obligations pursuant to this Agreement.
- Disclosure by Order. Receiving Party may disclose Confidential Information in accordance with a judicial or other governmental order, provided that Receiving Party shall (i) notify the Disclosing Party of the existence and terms of such request; (ii) cooperate with the Disclosing Party in taking legally available steps to resist or narrow any such request; and (iii) if disclosure is required, use its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be afforded to the Confidential Information disclosed.
- Disclosure to Related Parties. The Receiving Party may disclose Confidential Information only to Receiving Party's employees, contractors and/or consultants on a need-to-know basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees, contractors and consultants sufficient to enable Receiving Party to enforce all the provisions of this Agreement prior to any such disclosure. Either party may, without obtaining the other’s consent, provide copies or make disclosures to their auditors, banks or financial advisors, provided such third parties are bound to an obligation of confidentiality. Receiving Party shall nevertheless remain responsible to Disclosing Party for any violations of these confidentiality obligations by any related parties.
- Breach. Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Receiving Party and its employees, contractors and/or consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
- Return of Confidential Information. Upon the earlier of Disclosing Party's request or termination of this Agreement, Receiving Party shall immediately cease use of the Disclosing Party’s Confidential Information and return or certify destruction of all originals, copies, reproductions and summaries of Disclosing Party’s Confidential Information.
- Survival. This Section in its entirety shall survive termination of this Agreement.
- GENERAL TERMS & CONDITIONS
- Governing Law and Venue. This Agreement shall be governed by the laws of the State of Washington. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in King County, Washington. Bocada and Licensee agree to submit to the jurisdiction of, and agree that venue is proper in, said courts. This Section shall survive termination of the Agreement.
- Relationship of the Parties. The relationship between the parties shall only be that of independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Additionally, neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Each party shall be solely responsible for payment of all compensation owed to its employees as well as all employment-related taxes, and each party shall maintain appropriate worker’s compensation and general liability insurance for its employees.
- Assignment. Licensee shall not attempt to assign this Agreement nor any right or obligation hereunder without the prior written consent of Bocada. Without Bocada’s consent, any attempted assignment, transfer or conveyance of this Agreement, in whole or in part, shall be void and of no effect.
- Severability. If any provision of this Agreement is declared unlawful, void or unenforceable, then that provision shall be severed from this Agreement and will not affect the validity and enforceability of any of the remaining provisions.
- Force Majeure. With the exception of all payment obligations hereunder, neither party shall be deemed in default of this Agreement to the extent such party’s performance of any obligation is delayed or prevented as a result of a cause beyond its reasonable control which could not have been avoided by the exercise of due care; provided said party gives reasonably prompt notice of the force majeure condition and uses reasonable efforts to rectify said condition, to the extent that such notice and efforts to rectify said condition are feasible based on the type of force majeure situation.
- Dispute Resolution. Except as otherwise specifically provided in or permitted by this Agreement, all disputes, differences of opinion or controversies arising in connection with this Agreement shall first be resolved through good faith negotiation to arrive at an agreeable resolution. If, after negotiating in good faith for a period of ninety (90) calendar days, or any agreed further period, the parties are unable to resolve the dispute, then the parties may seek resolution by exercising any rights or remedies available to either party at law or in equity.
- Notices. Any notice required or permitted hereunder shall be in writing and shall be given: 1) by registered or certified mail, return receipt requested, postage prepaid; or 2) via a nationally recognized overnight courier, or 3) via email. All notices will be addressed, “attention Legal Department”, to the addresses identified on the first page of the Agreement. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid. Either party may change its address for notice by means of notice to the other party given in accordance with this Section.
- Use of Names. Bocada will not use Licensee’s name or logo in connection with any marketing, publicity, advertising, or promotional materials or activities without Licensee’s prior written consent; provided that Bocada shall have the right to publicly list Licensee as a customer on its web site, in its product brochure or in conversations with its clients or prospective clients, indicating that Bocada has established a business relationship with Licensee.
- ENTIRE AGREEMENT
This Agreement, including all documents referenced herein and all orders issued pursuant hereto, constitutes the entire agreement between the parties and may not be modified or any term or condition waived, except in writing by duly authorized representatives of each party. All prior communications, proposals, quotes, negotiations, representations and/or agreements, whether oral or in writing, related to the subject matter contained in this Agreement are hereby voided and shall not be incorporated into this Agreement. Additionally, any terms and conditions proposed by Licensee including, but not limited to, those that may be furnished by Licensee upon issuance of an Order shall be void and of no effect on this Agreement, unless such terms and conditions and the express agreement to those terms and conditions by a duly authorized representative of Bocada as evidenced by such representative’s signature are included in an Order. In the event of a conflict between any provisions of this Agreement and any Order, the terms and conditions of the Agreement shall control.
