This Services Agreement applies to the provision of services (hereinafter called “Services Agreement” or “Agreement”) offered by MaritzCX GmbH, Borselstrasse 18, 22765 Hamburg, Register Number HRB92708 (“MaritzCX”). Terms and Conditions of the customer are not part of the agreement between MaritzCX and the ordering party (“Company”). This also applies in the event that MaritzCX does not expressly object to these terms and conditions. Deviations from the General Terms and Conditions set down here are only effective if agreed in writing by the parties.
MaritzCX shall provide the offered services („Services“) under the terms and conditions of this Agreement.
2. CHANGES IN SERVICES
Changes of and/or supplements to the scope of the Services which prove to be necessary in the execution from the perspective of MaritzCX and / or the Company must be mutually agreed in writing.
The Company obtains the Services at the fees specified in the applicable proposal or Statement of Work. All payments are due within thirty (30) days after the invoice date. To the said remuneration must be added the statutory Value Added Tax in force for the time being. Should travel expenses be incurred in the supply of the Services, the Company shall in addition reimburse MaritzCX for its appropriate expenditure, unless otherwise agreed in individual cases.
4. TERM OF AGREEMENT; TERMINATION; AND SURVIVING OBLIGATIONS
This Agreement shall commence on the Effective Date, and shall continue indefinitely until terminated in accordance with the terms of this Section 4. The Agreement may also be terminated upon the occurrence of any of the following:
(a) at any time, upon the mutual written agreement of the Parties;
(b) if the other Party materially breaches any of its obligations hereunder, which breach is not remedied within thirty (30) days after written notice has been provided to the breaching Party specifying the breach; or
(c) if a filing by or against the other Party of a petition, or a resolution is made or passed, for the bankruptcy, reorganization, winding-up, liquidation or dissolution of the other Party, or an appointment of a receiver or trustee for the other Party or of its assets has been made, or an acknowledgment is made by the other Party of its inability to meet its debts as they become due, or a general assignment of the assets of the other Party in favor of its creditors has been made or the other Party ceases to do business as a going concern.
Termination or expiration of this Agreement for any reason will not affect or negate any obligations of the Parties which arose prior to the effective date of such termination, including without limitation Company’s obligation to compensate MaritzCX in accordance with the payment terms hereunder for all Services performed and third party non-recoverable expenses incurred by MaritzCX prior to termination. Any efforts requested of MaritzCX to transition the Services to a third party service provider shall be at an additional cost to Company, as mutually agreed by the Parties in writing. The provisions and obligations set forth in Sections 6 through 11 shall survive and be binding on the Parties after termination of this Agreement for any reason.
5. COMPANY RESPONSIBILITIES
Company agrees to promptly provide MaritzCX with reasonable direction regarding the concept and implementation of the Services; including but not limited to guidance with respect to specific goals, milestones and content. Company shall be responsible for providing, at no cost, subject matter experts, materials and input as may be required for performance of the requested Services by MaritzCX, as well as access to Company facilities and equipment as necessary. Company shall be responsible for the accuracy, completeness and propriety of information furnished to MaritzCX in connection with the performance of the Services. Company understands and agrees that the data and information produced by MaritzCX with respect to the Services in any findings report, written or oral, or in any document produced for Company as a result of the Services, if any, are estimates derived from sampling carried out in accordance with accepted industry standards, and as such are subject to limits of statistical error. Company further agrees to provide MaritzCX with any and all Company policies and processes with which Company requires MaritzCX to comply.
6. CONFIDENTIAL INFORMATION
6.1 Nondisclosure Obligations. Each Party agrees that it will not, and will cause its representatives, consultants, Affiliates and independent contractors to not, use, disclose, disseminate or otherwise make available to any third party without the disclosing Party’s prior written consent, either directly or indirectly, Confidential Information of the other Party, both during the term of this Agreement and after its termination, other than only to those employees who have a need to know such Confidential Information. “Confidential Information” shall mean this Agreement and all data, trade secrets, customer lists, pricing and information relating to the business of the disclosing Party. Each Party shall limit disclosure of the other Party’s Confidential Information to its own employees or agents who have a need to know which is related to the Parties’ business relationship hereunder. Neither Party shall be liable for disclosure of Confidential Information if such disclosure is made in response to a valid order of a court or authorized agency of government; provided, that, if available, at least five (5) days’ prior written notice is given to the other Party so that a protective order, if appropriate, may be sought. Obligations of non-disclosure do not apply to Confidential Information which the receiving Party can conclusively establish (i) was in the possession of the receiving Party without an obligation of confidentiality at the time of disclosure; (ii) prior to or after the time of disclosure became part of the public domain without the act or omission of the receiving Party; (iii) was disclosed to the receiving Party by a third party under no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the receiving Party without use or reliance upon the Confidential Information, and which such independent development can be established by evidence that would be acceptable to a court of competent jurisdiction.
6.2 Security Measures. MaritzCX will maintain a written information security program that includes implementation of administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of Confidential Information created, received, maintained, or transmitted by MaritzCX on behalf of Company. This includes using technology commercially available to MaritzCX to protect Confidential Information, including Personally Identifiable Information (PII), against any reasonably anticipated threats or hazards. MaritzCX acknowledges and agrees that it has an affirmative duty to perform a regular review or assessment of security risks, conduct active management, and use its commercially reasonable best efforts to ensure only authorized persons and devices access its computing systems and Confidential Information.
7. INTELLECTUAL PROPERTY
7.1 MaritzCX Rights. Company agrees that the Services are proprietary to MaritzCX, even if specific Company requirements are customized into the Services. As between MaritzCX and Company, MaritzCX shall have and retain all right, title and interest in and to MaritzCX trademarks, service marks, logos or other source of indicia, and all MaritzCX Tools, together with all intellectual property rights related thereto. “MaritzCX Tools” includes without limitation all materials, concepts, ideas, procedures, processes, know-how, techniques, methodologies, inventions, technology, computer software (object and source code), software tools, architecture, programs, files, templates, user interfaces, screen designs or specifications that MaritzCX has created, acquired or otherwise are known or possessed by MaritzCX prior to the Effective Date or independently from its performance of the Services. MaritzCX rights shall extend to any enhancements, modifications, deviations or improvements to the MaritzCX Tools and all intellectual property rights related thereto, whether or not such enhancements, modifications, deviations or improvements were made pursuant to a request by Company or undertaken independently by MaritzCX. Data gathered and stored in the performance of the Services, and all reports generated by MaritzCX for Company, shall become Company’s property. Notwithstanding the foregoing, cumulative statistical data which may incorporate data acquired from Company or its participants in aggregate form may be retained by MaritzCX for ordinary business purposes customary in the loyalty, performance improvement, fulfillment, travel, learning, survey research or event coordination industries.
7.2 Company Rights. As between Company and MaritzCX, Company shall have and maintain all right, title and interest in and to Company trademarks, service marks, logos and sources of indicia, and to all reports and data developed through MaritzCX’ performance of the Services, and as set forth and described in one or more applicable SOW(s) (“Deliverables”), together with all intellectual property rights related thereto. Company’s rights in and to the Deliverables are exclusive of any MaritzCX Tools which are and shall remain the sole property of MaritzCX. Title to Deliverables transfers to Company for materials produced hereunder, if any, at the time such materials are completed and provided to Company. To the extent the results of MaritzCX’ performance under this Agreement constitutes “work made for hire” for Company within the meaning of Title 17 of the United States Code, then such Deliverable shall be considered work made for hire by the Parties.
7.3 Residual Rights. Notwithstanding anything to the contrary herein, MaritzCX shall be free to use and employ its and its personnel’s general skills, know how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know how, methods, techniques, or skills gained or learned during the course of any work hereunder; provided, however, it or they acquire and apply such information without disclosure or unauthorized use of any Deliverable or Confidential Information owned by Company.
Company will defend, and indemnify MaritzCX, its parents, subsidiaries, affiliates, employees, officers, agents, licensors and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of Company’s violation of its obligations under this Agreement, or the negligent or willful acts of Company, or violation of any third party intellectual property or privacy rights. Company’s obligation to indemnify under this provision shall survive termination of this Agreement.
9. LIMITATION OF LIABILITY
MaritzCX shall be liable for deliberate intention and gross negligence in accordance with statutory regulations. For minor negligence MaritzCX shall be liable only in case of a breach of an essential contractual duty (cardinal duty) and in case of loss arising from damage to life, limb or health. MaritzCX shall be liable thereby only for foreseeable loss, the emergence of which is to be expected. In case of minor negligence, liability shall be restricted in amount to the sum which MaritzCX receives from the Company pursuant to the Statement of Work. Liability on the part of MaritzCX for the Customer’s loss of profit is hereby excluded.
10. AUDIT RIGHT
MaritzCX will retain files, records and data relevant to Services provided for the duration of the applicable SOW, and for any additional period required by law. For the term of the Agreement and for one (1) year thereafter, Company shall have the right no more than once per calendar year (and not during MaritzCX peak periods, as such periods may be defined by MaritzCX in its reasonable discretion, and provided to Company upon Company’s written request), with reasonable prior written notice to MaritzCX, to examine and audit records relevant to MaritzCX’ performance of Services. Notwithstanding anything to the contrary, Company shall pay MaritzCX for reasonable internal costs MaritzCX expends towards assisting Company with such audit. MaritzCX shall have no obligation to retain personally-identifiable information for any period longer than what is necessary to provide the applicable Services to Company, and MaritzCX may destroy or return such information immediately upon termination of such Services, unless otherwise mutually agreed in writing.
11.1 Notifications. All notifications which are required or permitted under this Agreement must be in writing.
11.2 Publicity. Neither party shall issue a press release without the prior written consent of the other party, such consent not to be unreasonably withheld; provided, however, that unless Company advises MaritzCX to the contrary in writing, MaritzCX shall be permitted to refer to Company as a customer of MaritzCX in general advertising and marketing initiatives.
11.3 Entire Agreement. This Agreement and the Annexes pertaining thereto represent the entire agreement between MaritzCX and the Company with respect to the subject thereof. Supplements and amendments to this Agreement, and any legal waiver or release under this Agreement, must be in writing and signed by both contracting parties. This Agreement hereby expressly replaces all previous agreements between the Company and MaritzCX. Existing rights under non-disclosure agreements which the parties have concluded prior to the effective date of this Agreement, however, shall in no way be affected or ended thereby. Every new item of confidential information exchanged between the parties moreover shall be subject to the conditions of non-disclosure contained herein.
11.4 Waiver. The waiver by any Party of a breach of any provision of this Agreement will not be construed as a waiver of a subsequent breach of the same provision by that Party or the breach of any other provision of this Agreement. The delay or failure of a Party to give any written notice will not constitute a waiver by that Party of any breach of this Agreement.
11.5 Subcontractors. For purposes of this Agreement, all Services described in the applicable proposal or Statement of Work will be purchased by Company exclusively from MaritzCX or its designated subcontractor. MaritzCX shall be entitled to fulfill its obligations under this Agreement through its authorized subcontractors and licensors.
11.6 Priority of conditions. In the event of a conflict between this Agreement and any other agreement between the parties, the terms of this Agreement shall take precedence over any other agreement relating to the Services.
11.7 Severability. If any part of this Agreement is found to be invalid or unfeasible, the validity of the remaining provisions shall not be affected thereby and such a provision shall be replaced by another provision representing the purpose and intention of this Agreement.
11.8 Force Majeure. Should one party, due to an event which is beyond such control of this party as may reasonably be expected and is not caused by its culpability or negligence, be prevented from fulfilling any part of this Agreement – excepting payment of fees on the part of the Company – should it be in arrears thereof, or should fulfilment be rendered impossible for it in any other way, this party shall be released therefrom to the extent to which it is prevented from or impeded in its said fulfilment by such causes.
11.9 Assignment and Transfer. This Agreement and the rights and duties contained therein may not be assigned or transferred by the Company, whether wholly or in part, whether voluntarily or by operation of law, or in any other way. This Agreement and the rights and duties of MaritzCX contained therein may, without the Company’s permission, be assigned and/or transferred by MaritzCX to the following recipients: (i) to a corporation which is a 100% subsidiary or parent company of MaritzCX; to a corporation which, following a merger in which MaritzCX is a participant, continues in existence; or to a corporation which acquires a significant part of the assets of MaritzCX or any significant part of the participations of MaritzCX in the product suite containing the contractual services, and (ii) to the company or companies and/or third parties (subcontractors and vendors) affiliated with MaritzCX. Such a transfer pursuant to Section 11.10 (ii), however, shall not release MaritzCX from its liability or its duties under this Agreement. Subject to the foregoing, this Agreement shall be binding on the contracting parties and each of their approved legal successors and assignees or shall be effective in their favor.
11.10 Applicable law and place of jurisdiction. This Agreement shall be governed by German law, excepting the provisions of international private law and UN purchase law. The sole place of jurisdiction for all disputes arising, whether directly or indirectly, from this Agreement is hereby agreed to be Hamburg.