This SERVICES AGREEMENT (“Agreement”) shall apply to services offered by MARITZCX LTD., a company incorporated under the laws of England and Wales with registered number 1590198 whose registered office is at Artisan, Hillbottom Road, High Wycombe, HP12 4HJ. Terms & Conditions of the Client (hereinafter referred to as “Company”) shall not be part of this Agreement unless otherwise agreed by the Parties in writing. MaritzCX and Company are each referred to as a “Party” and together as the “Parties”.
1. SERVICES RENDERED
Subject to the terms of this Agreement, MaritzCX agrees to provide services as described hereunder and under any applicable statement of work and/or technical statement of work or proposal (“Services”). Such Services shall be performed in accordance with specifications set forth in one or more mutually executed statement(s) of work (“SOW”), as such specifications may be amended through a project change acknowledgment (“PCA”) in substantially the same form as attached hereto. In the event of an inconsistency or conflict between this Agreement and an SOW/proposal, the terms of this Agreement shall govern unless mutually agreed by the Parties in writing specifically identifying this Agreement and the Sections to be modified, amended or superseded. All material changes to an SOW (i.e., budget, schedule) must be identified on a PCA completed by MaritzCX and approved by Company. MaritzCX reserves the right to charge for reasonable time and materials expended for the development of a PCA in the event significant resources are needed for such development.
Unless otherwise provided in the applicable SOW, Company agrees to purchase the Services at the price(s) set forth in the applicable SOW. All payments shall be due within thirty (30) days of date of invoice. Third party costs, which shall include but not be limited to, postage, shipping and transportation costs are additional unless otherwise specified in writing. MaritzCX shall have the right to withhold as an offset any Company amounts due, but not paid to, MaritzCX or its affiliates, subsidiaries, divisions or business units (collectively, “Affiliates”).
3. TERM; 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 3. 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 4 through 11 shall survive and be binding on the Parties after termination of this Agreement for any reason.
4. STATUS OF PARTIES
MaritzCX is an independent contractor and nothing in this Agreement shall create any partnership, joint venture, agency or employment relationship between the Parties or between a Party and the employees, agents or independent contractors of the other Party. MaritzCX shall bear full responsibility (i) to withhold and pay any and all payroll taxes related to the Services provided to Company, and (ii) with respect to benefits for MaritzCX’ employees and agents.
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
- (a) 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.
- (b) 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
- (a) 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.
- (b) 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.
- (c) 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 ON LIABILITY
TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, AND EXCEPT FOR INDEMNIFIED MATTERS AND THE COLLECTION OF MARITZCX’ FEES AND EXPENSES (INCLUDING REASONABLE ATTORNEY FEES AND EXPENSES), (A) EITHER PARTY’S RIGHT TO RECOVER DIRECT DAMAGES FROM THE OTHER UNDER THIS AGREEMENT IS LIMITED TO, IN THE AGGREGATE, THE AMOUNT RECEIVED BY MARITZCX FROM COMPANY UNDER THE APPLICABLE STATEMENT OF WORK; AND (B) NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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.
- (a) Force Majeure. If circumstances beyond the control of a Party temporarily make it impossible for it to perform its duties under the Agreement or any SOW, the rights and obligations of that Party will be temporarily suspended during the force majeure period to the extent that such performance is reasonably affected thereby. If an excusable delay or failure to perform by a Party exceeds twenty (20) days, the other Party shall have the right to terminate the affected SOW, or this Agreement, if applicable, without limitation, except that Company will continue to be liable for payment of any amounts due up to termination.
- (b) Notice. Any notice delivered to a Party pursuant to this Agreement must be in writing and delivered personally or will be deemed to be delivered when deposited in the U.S. Mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the Party at the address indicated on the Proposal, or at such other address that may have been specified by written notice delivered in accordance with this provision.
- (c) 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.
- (d) 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.
- (e) Governing Law. This Agreement shall be governed by the laws England and Wales without regard to conflict of law provisions or the United Nations Convention on the International Sales of Goods. Each Party hereby consents and subjects itself to the jurisdiction of the courts of England and Wales with respect to any claim or cause of action arising out of this Agreement. This Agreement expressly excludes that body of law applicable to the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention, if applicable.
- (f) Severability. If any term or provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, by a court of competent jurisdiction, then such term or provision shall be enforced to the extent it is enforceable and the validity of the remainder of this Agreement shall not be affected.
- (g) Assignment and Transfer; Binding Effect. Neither the Agreement nor any rights or obligations under the Agreement may be assigned or otherwise transferred by Company, in whole or in part, whether voluntary or by operation of law. The Agreement and the rights and obligations of MaritzCX under the Agreement may be assigned and/or delegated, without the consent of Company, by MaritzCX (i) to any entity which is a wholly-owned subsidiary or parent of MaritzCX, to an entity which survives a merger to which MaritzCX is a party, or to an entity which acquires all or substantially all of the assets of MaritzCX, and (ii) to MaritzCX’ affiliate(s) and/or third party subcontractors and vendors, provided no such delegation under this subsection 11(g)(ii) shall relieve MaritzCX from its responsibility or obligations under the Agreement. Subject to the foregoing, the Agreement shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
- (h) Subcontractors. For purposes of this Agreement, all Services described in the SOW 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.
- (i) Attorney’s Fees and Costs. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees, expert’s fees, costs, and necessary disbursements in addition to any other relief to which such Party may be entitled.
- (j) Entire Agreement. This Agreement is the complete agreement of the Parties concerning the subject matter hereof, and supersedes all prior negotiations, representations or agreements, either written or oral, and may not be modified or amended except by a written instrument signed by both Parties. No amendment or modification of this Agreement will be binding on the Parties unless it is in writing and signed by both Parties.
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