Terms and Conditions
MASTER SERVICE AGREEMENT
Effective January 1, 2016
This MASTER SERVICES AGREEMENT (this “Agreement”) is effective January 1, 2018 (the “Effective Date”) between ZAFHA, LLC (hereinafter “ZAFHA”) and all users of ZAFHA services and products (hereinafter “Client”), and sets forth the terms and conditions under which ZAFHA will provide the Services and Products (as hereinafter defined) to Client. ZAFHA and Client may be referred to individually as a “Party” and collectively as the “Parties.”
1. Term. The term of this Agreement shall commence as of the Effective Date of the applicable Statement of Work (each, a “SOW” and collectively, the “SOW’s”) and shall continue until terminated in accordance with Section 10.
2. SOWs and Performance of Services. Client desires to procure ZAFHA’s services or products (each, a “Service” or “Product”and collectively, the “Services” or “Products”), together with any Licensed Materials (as defined herein) provided by ZAFHA in connection with such Services or Products that are described in a SOW or SOW’s. Each SOW shall be subject to the terms and conditions set forth herein. ZAFHA will not be obligated to initiate any Services or deliver any Products and Client shall not be authorized to make use of any Licensed Materials until the Parties have executed a SOW covering the applicable Services, Products and Licensed Materials.
3. Payment Terms. Client agrees to pay ZAFHA the amounts set forth in the applicable SOW. ZAFHA’s invoices will be deemed to be correct and acceptable to Client unless Client advises ZAFHA of disputed items in the invoice within twenty (20) days of receipt of an invoice. Except as modified in a specific SOW, payments shall be made to ZAFHA within 30 days of the invoice date. If Client fails to pay any invoice (or any undisputed portion of an invoice) in accordance with foregoing terms, Client shall also pay interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. Client’s obligation to pay undisputed amounts is absolute and unconditional and not subject to any offset, defense or counterclaim. The prices and charges for the Services are exclusive of any sales, use, gross receipts, value added, withholding, ad valorem or other taxes. To the extent ZAFHA is now, or in the future may be, required to collect such taxes under applicable laws, ZAFHA shall separately state the amount of tax due in an invoice to Client.
4. Expenses and Travel. Client shall reimburse ZAFHA for the actual cost of expenses incidental to the services performed including sub-contracts for services (with prior approval), licenses, express mailings, project materials, and printing. Client shall reimburse ZAFHA for the actual cost of transportation, lodging and subsistence should ZAFHA’s employees or contractors be required to travel to a work location other than ZAFHA’s offices. Travel expenses will be paid in accordance with the effective policy of ZAFHA covering such expenses.
5. License to Client Data and Restrictions. “Client Data” means any and all content, data, information and materials provided by Client to ZAFHA for use or incorporation by ZAFHA in its provision of Services and Licensed Materials hereunder. Client shall be and remains the exclusive owner of any Customer Data. Client hereby grants to ZAFHA a limited, non-exclusive right and license to use, reproduce and prepare derivative works from Client Data, as may be reasonably required for performing the Services. ZAFHA shall use Client Data solely to perform the Services pursuant to this Agreement and an applicable SOW, and for no other purpose. ZAFHA shall not disclose Client Data to any third party except as reasonably required for ZAFHA to provide the Services or Products or as required by law or court order.
6. Confidentiality; Security.
6.1. Confidentiality. Each Party hereby acknowledges that the Services and the data provided by either Party to the other may include personal information pertaining to individual consumers. In addition, Client acknowledges that the Services include proprietary technology and information of ZAFHA and its third party licensors, including the Licensed Materials and methods by ZAFHA in the processing of Client Data. Accordingly, each Party shall treat such information responsibly and take reasonable steps to maintain strict confidentiality of any Confidential Information (defined below) and to prevent unlawful dissemination or misuse by its employees, officers, agents or any other person with access to such information. In the case of Client, Client shall not disclose any such technology or Confidential Information pertaining to ZAFHA to any third party without the prior written consent of ZAFHA. “Confidential Information” singularly and collectively means each Party’s information, in whatever form or media, and whether or not marked as confidential, that is not generally known to the public, whether of a technical, business or other nature, including, without limitation, any and all: specifications, ideas, concepts, designs, business plans and forecasts, financial and operational information, license fees, licensee information, tax information, promotional and marketing activities or strategies, fee arrangements, pricing information, trade secrets, know-how, algorithms, methodologies, website development information and data, computer software, whether in source code or object code, procedures, techniques, formulas, equations, techniques, or process, customer lists, customer requirements, methods of doing business, other business affair of each respective Party, non-public information relating to services actually rendered to or by, or proposed by a Party, and any and all information concerning the Parties’ discussions about their respective business operations and the business relationship between the Parties, including, without limitation, the fact that the Parties have had any such discussions. It shall be presumed that any and all of the foregoing exchanged or disclosed by each Party, upon disclosure and regardless whether such disclosure predates the Effective Date, is Confidential Information and shall be treated accordingly pursuant to this Agreement.
6.2. Security Breach. Each Party (the “Receiving Party”) shall provide the other Party (the “Providing Party”) immediate written notice upon discovery or notification of any actual, potential or threatened unauthorized access to or use of any data of the Providing Party in the Receiving Party’s possession or control, and immediately and at its own expense investigate and take all commercially reasonable steps to identify, prevent and mitigate the effects of any such unauthorized access. Receiving Party shall use the Confidential Information provided by Providing Party solely for the purposes expressly contemplated under this Agreement. Confidential Information does not include any information that the Receiving Party does document in reasonable detail and to the Providing Party’s satisfaction, not to be unreasonably withheld, that: (a) is public knowledge at the time of disclosure, (b) was known by the Receiving Party before disclosure by the Providing Party, or becomes public knowledge or otherwise known to the Receiving Party after such disclosure, other than by breach of a confidentiality obligation, or (c) is independently developed by the Receiving Party by persons without access to Confidential Information of the Providing Party.
7. Licensed Materials.
7.1. Ownership of Licensed Material. ZAFHA shall retain all right, title and interest in and to, any and all products, technology platform, computer programs, algorithms, protocols, diagrams, methodologies, tools, inventions, discoveries, devices, software, techniques, know-how, industry best practices, specifications, source code, data procedures and modifications thereto, whether patentable or copyrightable, whether tangible or intangible, and all right, title and interest in and to the intellectual property derived from such works, that have been or will be acquired by, created, or licensed to ZAFHA in providing the Services under any SOW. Any such Licensed Materials shall be and remain the exclusive property of ZAFHA or its third party licensors, and Client shall obtain no ownership rights therein.
7.2. Acknowledgement of and Impairment of Rights in Licensed Materials. Client acknowledges that the Licensed Materials are proprietary to ZAFHA and are subject to ZAFHA’s copyright, patent and other intellectual property rights and comprise: (a) works of original authorship, including compiled information containing ZAFHA’s selection, arrangement and coordination and expression of such information or pre-existing material it has created, gathered or assembled; (b) confidential information and trade secrets; and (c) information that has been created, developed and maintained by ZAFHA at great expense of time and money such that misappropriation or unauthorized use by others for commercial gain would unfairly and irreparably harm ZAFHA. Client shall not commit or permit any act or omission that would impair ZAFHA’s rights in the Licensed Materials.
7.3. License Grant. ZAFHA grants Client a non-exclusive and non-transferable license to use the Licensed Materials set forth in the applicable SOW, subject to these terms and conditions in this Agreement and such SOW. Licensed Materials are provided solely for the internal use of Client in accordance with the applicable SOW. The Licensed Materials may not be made available in whole or in part to any third party, except that Client may furnish information to a third party for handling or processing upon prior written agreement by ZAFHA and upon the signing by Client and the third party of ZAFHA’s processor’s agreement. Unless otherwise specified in the applicable SOW or otherwise agreed in writing by ZAFHA, Client may not provide Licensed Materials to, or permit their use by or for, any franchisee, dealer, parent, subsidiary, affiliate or associated company of Client. ZAFHA retains all rights not expressly granted under this Agreement or an applicable SOW, and Client receives no implied license under this Agreement or any SOW.
7.4. Duration and Location of License. Except as otherwise expressly set forth in an applicable SOW, the term of each license of Licensed Materials hereunder shall be the number of years or length of time specified in the applicable SOW for which the license applies or, if not specified, the term of the license shall commence on the sooner of the date of the initial shipment of any Licensed Materials pursuant to SOW until the expiration or termination of this Agreement or the applicable SOW, as applicable, in which case the license shall immediately expire. Upon expiration of any license hereunder and upon request by ZAFHA, Client shall immediately return all Licensed Materials (including copies) provided to Client pursuant to this Agreement and the applicable SOW. Likewise, ZAFHA will immediately return all copies of Client Data and/or any other customer information in its possession.
8. Representations and Warranties.
8.1. Services and Products. ZAFHA warrants to Client that the Services and Products will be provided in a professional and workmanlike manner and perform as specified in the applicable SOW. In the event of any breach by ZAFHA of the foregoing warranty, Client’s exclusive remedy, and ZAFHA’s sole obligation, shall be for ZAFHA to re-perform the non-conforming Services or modify the Product in order to correct such non-conformity, or if ZAFHA is unable to correct such non-conformity, to issue to Client a credit equal to the amount paid by Client for the non-conforming Services or Products; provided that Client must provide ZAFHA with written notice of any such non-conformance within ten (10) days of the performance by ZAFHA of the non-conforming Services or Products.
8.2. Limited Warranty – Licensed Materials. ZAFHA represents and warrants to Client that: (i) ZAFHA is the owner or valid licensee of the Licensed Materials, and ZAFHA has secured all necessary licenses, consents, permissions and releases for Client’s use of any third-party materials and tools provided to Client by ZAFHA pursuant to this Agreement; (ii) there are no conflicting claims with respect to ZAFHA’s rights in the Licensed Materials; and (iii) use of the Licensed Materials pursuant to this Agreement shall not infringe the copyright, trademark or other proprietary or intellectual property of any person. Except as provided above, ZAFHA makes no warranties on any third-party materials or tools, including but not limited to software and hardware. Client’s warranties are limited to those provided under the applicable third-party license agreements.
8.3. Client Warranties. Client hereby represents and warrants to ZAFHA: (i) that it has the legal right to license the Client Data to ZAFHA; and (ii) that the Client Data does not: (a) other than for non-U.S. consumer data described in the applicable SOW, incorporate or include any consumer data obtained from consumer(s) domiciled outside the United States; or (b) contain names of individuals under eighteen (18) years of age. In the event the Client Data does not comply with foregoing warranty, ZAFHA shall not be responsible for, and shall have no liability whatsoever in connection with Client’s use of such information.
8.4. Disclaimers. THE WARRANTIES MADE BY ZAFHA AND SET FORTH IN THIS SECTION 7 ARE THE EXCLUSIVE WARRANTIES ZAFHA MAKES WITH RESPECT TO THE SERVICES, PRODUCTS AND LICENSED MATERIALS. ZAFHA MAKES NO OTHER REPRESENTATION OR WARRANTIES, AND HEREBY DISCLAIMS, TO THE GREATEST EXENT PERMISSIBLE UNDER APPLICABLE LAW, ALL OTHER WARRANITES EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFIRNGEMENT, WITH RESPECT TO THE SERVICES, PRODUCTS, LICENSED MATERIALS AND ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) OR INFORMATION SUPPLIED BY ZAFHA UNDER THIS AGREEMENT OR ANY SOW. ZAFHA DOES NOT GUARANTEE THAT THE ZAFHA SERVICES AND PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
9. Limitation of Liability and Indemnification.
9.1. Limitation of Liability. IN NO EVENT SHALL ZAFHA BE LIABLE HEREUNDER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, STATUTORY, SPECIAL OR PUNATIVE DAMAGES, OR FOR ANY LOST PROFIT, LOSS OF REVENUE, LOSS OF DATA OR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT TORT OR OTHERWISE, AND EVEN IF ZAFHA HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ZAFHA’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT TO ZAFHA FOR THE SPECIFIC SERVICES UNDER THE APPLICABLE SOW GIVING RISE TO SUCH LIABILITY. CLIENT ACKNOWLEDGES THAT THE ABOVE LIMITATION OF LIABILITY IS REASONABLE BASED ON THE CIRCUMSTANCES OF THIS AGREEMENT AND THE FEES CHARGED BY ZAFHA UNDER THIS AGREEMENT.
9.2. Waiver of Liability. Neither Party shall be liable for any delay or failure in its performance under this Agreement if and to the extent which such delay or failure is caused by events beyond the reasonable control of the party including, without limitation, acts of God or natural disasters.
9.3. Client’s Responsibility. ZAFHA shall not be obligated to commence or continue the performance of any Services or delivery of any Products unless the Client or it’s authorized agent shall: (a) provide to ZAFHA the Client Data (as defined in Section 5 above) in the form specified by ZAFHA; (b) procure at its own expense all necessary rights, licenses, permissions, waivers, releases and other documentation to permit use of all Client Data in connection with ZAFHA’s intended provision of Services or Products; (c) take sole responsibility for payments to third parties for the use of Client Data; (d) cooperate with ZAFHA in providing any necessary Client Data, information, or instructions as may be needed in order for ZAFHA to provide the Licensed Materials and Services described in the applicable SOW; and (e) ensure and take responsibility for the accuracy of all Client Data. ZAFHA shall not be responsible for any damages to the Client, Client’s customers or other third parties that result from ZAFHA’s failure to commence or continue services or deliver Products under this section or from inaccurate or incomplete data provided by the Client.
10. Compliance with Laws.
10.1. General. Each Party agrees to comply with all Legal Requirements applicable to each Party’s receipt and use of data provided to the other. ZAFHA reserves the right, upon reasonable notice to Client, to revise any or all of the terms, conditions or pricing under this Agreement, any SOW and the Services or Products (including the right to withdraw or restrict affected data) to meet any Legal Requirements, or to address matters concerning privacy and confidentiality.
10.2. Change in Laws. Upon reasonable notice to Client, ZAFHA shall have the right to withdraw or decline to provide to Client any Services, Products or the license or use of the Licensed Materials (a) in order to comply with any Legal Requirements or industry self-regulatory guideline or (b) in the event Client’s use of the Services, Products or license of the Licensed Materials is the subject to a substantial, adverse and consumer reaction related to consumer privacy issues.
11.1. Elective Termination. Except as modified in a specific SOW, either Party may elect to terminate this Agreement for any reason by giving the other Party sixty (60) days written notice. 11.2. Breach. If either Party is in material breach of this Agreement, any SOW, the non-breaching Party may terminate the term of the individual SOW or this Agreement, as applicable, provided such breach is not cured within thirty (30) days following the alleged breaching Party’s receipt of written notice from the non-breaching Party, which notice specifies in sufficient detail the nature of the breach. In the event, however, such breach is based on Client’s failure to pay under this Agreement, Client shall have ten (10) days to cure such breach following receipt of written notice from ZAFHA. Notwithstanding the foregoing, ZAFHA shall have the right to terminate this Agreement or any SOW immediately upon written notice to Client if, in ZAFHA’s reasonable good faith judgment, any of the Services, Products or Licensed Materials provided to Client are being used or disclosed contrary to this Agreement or any SOW. In the event that this Agreement or a SOW is terminated as a result of a breach, in addition to any rights of termination, the non-breaching Party shall, except as expressly provided herein, be entitled to pursue all other remedies against the breaching Party.
11.3. Effect of Termination. Upon termination of this Agreement or any ZAFHA SOW Client shall immediately pay for any Services or deliverables performed or provided up to and including the effective date of termination, ZAFHA’s incurred costs for work in process, plus any cancellation or termination fees set forth in the applicable SOW. In addition, Client shall comply with Section 6.4 of this Agreement and any applicable SOW regarding the use and license of the Licensed Materials.
11.4. Survival. Any provisions of this Agreement or any SOW that would reasonably be construed to survive termination or expiration and non-renewal, shall survive termination or expiration and non-renewal of the term of this Agreement or any SOW for any reason.
12. Notices. All notices will be given in writing and will be personally delivered or by Fedex (or similar overnight courier), registered or certified mail (return receipt requested) to the ZAFHA address set forth below or the Client’s primary business address, or to such other address designated by a Party by notice given in accordance with this Section. Notices may also be sent by email but will not be deemed received or valid until acknowledged by the other party by return email. Notices to ZAFHA shall be addressed to President. Notice shall be deemed given the next business day if sent by Fedex or similar overnight courier or five (5) business days after being sent by registered or certified mail to the address described above.
13. Employment of ZAFHA Employees or Individual Contractors. Should Client retain, either as an employee or under contract, a present employee or individual contractor of ZAFHA or an individual who has had such a relationship with ZAFHA during the prior six (6) months, Client will pay ZAFHA a recruitment fee equal to 50% of the individual’s annual compensation at ZAFHA or starting annual compensation with Client, whichever is larger. Upon written request, such fee may be waived at ZAFHA’s sole discretion.
14. Authorization to Incur Financial Obligations on Behalf of Client In fulfilling ZAFHA’s obligations to Client, ZAFHA may routinely be required to place orders on behalf of Client with third party vendors such as cooperative databases, list brokers, data service bureaus, ecommerce agencies, paper distributors, or printers. While Client’s approval of vendors will be obtained in advance by ZAFHA, Client agrees that ZAFHA may place routine orders with such vendors to insure that necessary services for Client are performed in a timely manner. Client agrees that any resulting financial obligation to such third party vendors are obligations of the Client and not ZAFHA. Client agrees to pay such obligations directly to third party vendors.
15.1. Modification. This Agreement and any SOW may be modified or amended, in whole or in part, only by mutual written agreement of the Parties. The waiver by either Party of any right hereunder or the failure to perform or of a breach by the other Party shall not be deemed a waiver of any other right hereunder or of any other breach or failure by said other Party whether of a similar nature or otherwise.
15.2. Confidentiality. Neither Party will use the name or marks, refer to or identify the other Party in advertising or publicity releases, promotional or marketing correspondence to others without first securing the written consent of such other Party, except that ZAFHA will have the right to: (i) use Client’s name in oral sales presentations, press releases, brochures, marketing materials, website, and financial reports indicating that Client is a client of ZAFHA; and (ii) disclose the terms of this Agreement, or any part thereof, to potential investors or acquirers of ZAFHA or for purposes of complying with any Legal Requirements.
15.3. Independence of Parties. Each Party is an independent contractor with respect to the other Party hereunder. This Agreement shall not be construed to (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the Parties or (ii) authorize any Party to enter into any commitment or agreement binding on the other Party, except as provided in Section 13 above.
15.4. Assignment. Neither Party will have the right to assign this Agreement or any SOW without the written consent of the other Party; provided, however, that ZAFHA will have the right to: (i) retain subcontractors to perform all or part of the work under any SOW; and (ii) assign this Agreement and any SOWs to an affiliate of ZAFHA.
15.5. Dispute Resolution. In the event of a dispute in any manner relating to or arising out of this Agreement, the Parties shall meet, confer and negotiate in good faith in an attempt to resolve the dispute. In the event the Parties are unable to resolve the dispute themselves, the dispute shall be resolved through binding arbitration before one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, such arbitration to be held in the City of Asheville, North Carolina. In arbitrating any issue arising under this Agreement, the powers and authority of the arbitrator shall include the power and authority to grant such equitable relief (including injunctive relief) as may be appropriate under the circumstances, in accordance with applicable law. The decision or award of the arbitrator shall be final and binding upon the Parties and shall be enforceable by judgment entered in a court having jurisdiction. In the event the arbitrator determines there is a prevailing party in the arbitration, the prevailing party shall recover from the losing Party all costs of arbitration, including all fees of the arbitrator and all attorneys’ fees reasonably incurred by the prevailing party. In conducting arbitration under this agreement, the arbitrator shall not be authorized or empowered to arbitrate disputes between the parties that do not arise under this Agreement. Notwithstanding the foregoing, ZAFHA, in its sole discretion, may initiate legal action for collection of unpaid fees in a court of competent jurisdiction under Section 14.6, and this Section 14.5 shall not be construed to prohibit a Party from seeking injunctive or equitable relief as allowed by law.
15.6. Governance. This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the internal laws of the State of North Carolina, without regard to its conflict of laws rules or choice of law principles. Exclusive jurisdiction and venue for any claims made by either party against the other shall be within the state and federal courts located in the State of North Carolina.
15.7. Entire Agreement. This Agreement (as supplemented by individual SOWs) sets forth the entire understanding of Client and ZAFHA with respect to the subject matter hereof and supersedes all prior understandings, whether oral or written, between the Parties relating thereto. In the event of any conflict between the terms and conditions of this Agreement and a SOW, the terms of this Agreement shall prevail, unless explicitly stated otherwise in a SOW. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
15.8. Execution. This Agreement shall be considered executed by the execution of any SOW that references this agreement and to which the Parties state their agreement to this Agreement or as may be amended in the future.