Last updated April 14, 2023
MASTER SERVICES AGREEMENT
- AGREEMENT STRUCTURE AND DEFINITIONS
1.1. This Master Services Agreement (this “Master Agreement”) establishes the terms and conditions to which the parties have agreed with respect to the provision of GUIDEcx client onboarding project platform (the “Platform”) and any related Professional Services that may be ordered pursuant to an Order or Order Form (“Order”) or statement of work (“SOW”)( Platform and Professional Services collectively, the “Services”) by GUIDEcx, Inc. (“GUIDEcx”) to you (“you” or “Customer”).
1.2. This Master Agreement, along with any Order and SOW are referred to collectively as the “Agreement”. The parties acknowledge receipt of and agree to be bound by the terms and conditions of the Agreement. Each Order and SOW shall be subject to this Master Agreement and any conflicting terms on any pre-printed or standard terms of any Customer purchase order or other business processing document shall have no effect. To the extent the provisions of this Master Agreement conflict with an Order or SOW, this Master Agreement shall control, except where the Order expressly states the intent to supersede all or part of this Master Agreement.
The Agreement is effective the earlier of (a) your first access to the Platform or (b) your execution of an Order. If you access the Platform on behalf of another person or entity, then the terms “you” or “Customer” includes you and that person or entity, and you represent and warrant that (i) you are an authorized representative of the entity with the authority to bind the entity to this Master Agreement, and (ii) you agree to this Master Agreement on that entity’s behalf.
1.3. Certain Definitions:
“Customer Data” means any data Customer or any User provides, uploads, or submits, including, without limitation, consumer data, through the Platform or to the Services.
“GUIDE Hours” means service hours performed by GUIDEcx in the provision of Professional Services.
“Order” means the document(s), regardless of actual name, executed by the parties which incorporates by reference the terms of this Master Agreement, and describes order-specific information, such as a description of the Services, Platform, subscription term, fees, and other terms as may be agreed to by the parties.
“Professional Services” means training, implementation, data conversion, integrations and other consulting services.
“Term” means the Initial Term and any renewal terms.
“User” means any employee, an individual contractor or customer of Customer that is authorized by Customer to access the Platform. User access limits by User type are further defined in the Order. - PROFESSIONAL SERVICES
2.1. Set-Up and Implementation. GUIDEcx shall provide the Professional Services, including, without limitation, set-up and implementation services and such additional Professional Services without the application of GUIDE Hours as determined by GUIDEcx in its sole and absolute discretion. Customer will be solely responsible for establishing and maintaining procedures to examine and confirm results prior to use, adopt procedures to identify and correct Customer or User errors and omissions, and designate an authorized primary and a backup point of contact who will coordinate communication and activities, and make or facilitate making decisions during the Term.
2.2. Cooperation. As the performance of the Platform and Professional Services are dependent upon the timely and effective completion of Customer’s responsibilities hereunder, Customer acknowledges and agrees that if Customer fails to perform set-up, implementation and other tasks assigned to Customer by GUIDEcx, then GUIDEcx’s performance may be severely impacted and in some cases, rendered ineffective as a result of Customer’s action or inaction. GUIDEcx shall not be responsible for any damages, losses, expenses, costs or liabilities resulting from Customer’s performance failures. The foregoing notwithstanding, Customer’s continued compliance with the Agreement is required including, without limitation, payments to GUIDEcx. GUIDEcx shall be entitled to rely on all decisions and approvals by Customer as communicated by Customer’s primary or backup point of contact.
2.3. GUIDE Hours. Unless otherwise provided in this Master Agreement, the application of GUIDE Hours for Professional Services are determined by GUIDEcx in its sole and absolute discretion and may include, without limitation, introductory training without the application of GUIDE Hours, however, Customer is ultimately responsible for arranging any training for its Users.
2.4. Data Integrations. GUIDEcx will provide the following data integration Professional Services without requiring the application of GUIDE Hours, the scope of which shall be determined by GUIDEcx in its sole and absolute discretion: (i) domain verification; (ii) guidance and information in the use of GUIDEcx’s standard data integrations (also known as “out-of-the-box” integrations); and (iii) guidance and information in the use of GUIDEcx’s standard application programming interface. If Customer’s data integration needs exceed the limits described in this section, then GUIDEcx may provide Professional Services pursuant to an SOW that defines any additional custom integration Services. - ACCESS RIGHTS AND RESTRICTIONS
3.1. Grant of Access. Subject to the provisions contained in the Agreement, GUIDEcx hereby grants Customer for the Term a non-transferable, non-exclusive, worldwide limited right for Customer’s Users to access the Platform solely for the business purposes of Customer.
3.2. Restrictions. Customer shall not itself, and shall ensure its Users do not: (a) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, or otherwise permit any third party (other than Users) to access or use the Services; (b) decipher, decompile, disassemble, reverse assemble, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Platform; (c) modify, translate, or develop any derivative works based upon the Platform; (d) access the Platform in order to build a competitive product or service; (e) use the Platform to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis except as provided for in the Agreement; (f) send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs through the Platform or Services; (g) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; (h) attempt to gain unauthorized access to the Platform or its related systems or networks; (i) disclose or publish performance or capacity statistics or the results of any benchmark test performed on the Platform or Services; (j) obscure, alter or remove any copyright, patent, trademark, service mark or proprietary rights notices on the Platform or Services; or (k) otherwise use the Services except as expressly permitted herein.
3.3. Users. Customer shall cause all Users obtaining access to the Platform to accept either the terms of GUIDEcx’s click-through end-user license agreement or Customer’s end-user license agreement, which each such User must agree to prior to using the Services. If Users accept Customer’s end-user license agreement, Customer agrees it will not make any warranty, representation or commitment to any User with respect to the Platform except as may be expressly set forth herein, and Customer shall be solely responsible for any warranties, representations or commitments to Users. Customer shall ensure that all Users are at least 18 years old. Notwithstanding a User’s acceptance of any separate end-user license agreement, Customer is solely responsible for all activities that occur under User accounts and Customer shall remain liable for all acts and omissions of its Users and any breach of the Agreement by the Users shall be deemed a breach by Customer hereunder. Customer shall provide access credentials only to individuals that Customer intends to be Users and shall ensure that Users maintain secrecy of its access credentials. GUIDEcx has no obligation to verify the identity of any person who gains access to the Platform through access credentials provided by Customer. Customer must immediately take all necessary steps, including providing notice to GUIDEcx, to effect the termination of an access ID for any User if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred.
3.4. Updates. GUIDEcx may make available, at its sole discretion, updates and upgrades to the Platform as such updates and upgrades are made generally available to GUIDEcx’s other customers. Customer will be responsible for the cost of any modifications to its own infrastructure that may be required in connection with implementation of any updates or upgrades. GUIDEcx may modify, alter, add and/or substitute features of the Platform from time to time, in whole or in part, without any notice to Customer; provided that no such modification will materially degrade the functionality of the Platform. GUIDEcx may, in its sole discretion and upon Customer’s approval, provide Customer access to certain features that are not included in the production version of the Platform (“Beta Features”). Customer acknowledges and agrees that GUIDEcx shall have no liability whatsoever to Customer and does hereby waive and release GUIDEcx from any claims or losses that result or arise from Customer’s use of Beta Features.
3.5. Integrations. Customer may integrate the Platform with Customer’s accounts or subscriptions to third-party services or applications. GUIDEcx does not warrant or endorse and does not assume and will not have any liability or responsibility to Customer or any User for any such third-party services or applications.
3.6. Free Trials. If you register for a free trial to access and use the Platform, Platform will be made available to you and a limited number of Users in accordance with the terms of the Agreement on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the Platform; (b) the start date of any subscription to the Platform purchased by you pursuant to an Order; or (c) termination of the free trial by us in our sole discretion. Any data inputted or transmitted through the Platform, and any configurations made to the Platform during the free trial period will be permanently lost unless Customer purchases a paid subscription to the Platform, or exports such data, before the end of the free trial period.
NOTWITHSTANDING SECTION 9 (“INDEMNIFICATION”) BELOW, DURING THE FREE TRIAL THE PLATFORM IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND GUIDECX SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY TO CUSTOMER OF ANY TYPE WITH RESPECT TO THE PLATFORM FOR THE DURATION OF THE FREE TRIAL PERIOD.
3.7. Email Notification. You understand that if you authenticate your domain name through the Platform, the Platform will be able to send notification emails to Users on behalf of other Users. These emails will be generated by the Platform but appear to be sent by such other Users and have a “reply to” address of the e-mail address of the applicable task assignee or project manager.
3.8 Compliance with Applicable Laws. In undertaking any activity under this Agreement, Customer and GUIDEcx shall comply with any and all laws, rules, regulations and relevant industry standards applicable to its performance of its obligations under this Agreement but subject to the definitions, obligations and exclusions related to Applicable Data Protection Laws as discussed below. Without limiting the foregoing, Customer and GUIDEcx will fully comply with (a) the U.S. Foreign Corrupt Practices Act and will not make any payment to third parties that would cause Customer or GUIDEcx to violate such statute; and (b) all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts §§ 730-774). Customer shall comply with all applicable data protection, information security and privacy laws, rules, regulations and relevant industry standards (“Applicable Data Protection Laws”), including without limitation (i) Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), (ii) the UK Data Protection Act 2018 (“UK DPA”), (iii) the UK General Data Protection Regulation as defined by the UK DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, (iv) the Health Insurance Portability and Accountability Act of 1996, (v) the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations, (vi) the Gramm-Leach-Bliley Act and (vii) the PCI Data Security Standards. Customer acknowledges and agrees that GUIDEcx prohibits the submission of sensitive information to the Platform and Services (per section 4.2 below) and therefore may not be subject to the same Applicable Data Protection Laws as Customer; provided, GUIDEcx shall comply with Applicable Data Protection Laws governing Customer User Data (as the term is defined in section 4.2).
3.9. Recipe Builder. GUIDEcx limits the number of tasks that can be performed while using its Recipe Builder functionality according to the type of Platform purchased by Customer. In the event Customer exceeds the number of tasks allocated, Customer shall be required to purchase additional tasks in GUIDEcx’s reasonable discretion. - DATA
4.1. Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of the Customer Data. Customer shall only disclose, submit or provide to GUIDEcx Customer Data as necessary for GUIDEcx to provide the Services to Customer. Customer hereby grants GUIDEcx a non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) during the Term to access, use, reproduce and create derivative works of the Customer Data (excepting Customer User Data as defined below) in order to provide and improve the Services for Customer, for general product research and development, data analysis, and data aggregation in de-identified form, and to fulfill GUIDEcx’s obligations under this Agreement. Aggregated and statistical de-identified data (“Aggregated Data”) derived from the operation of the Platform shall be owned by GUIDEcx and nothing herein shall be construed as prohibiting GUIDEcx from using Aggregated Data for business and/or operational purposes provided that GUIDEcx does not share with any third party Aggregated Data which reveals the identity of Customer, Users or Confidential Information. Customer hereby represents and warrants that Customer has provided all necessary and appropriate notices and opt-outs, and has obtained all necessary and appropriate consents, approvals and rights to collect, process, use, store, enhance and disclose the Customer Data and allow GUIDEcx to use, store, disclose and otherwise process such Customer Data as contemplated by this Agreement, including to and from Users wherever required under applicable law. Customer shall obtain and retain throughout the Term of this Agreement and for three (3) years after its termination records sufficient to demonstrate it has provided all such notices and opt-outs and obtained all such consents, approvals and rights.
4.2. No Sensitive Information. You will not submit to the Platform or Services any Customer Data that is (i) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act of 1996; (ii) credit, debit or other payment card data subject to PCI DSS; (iii) nonpublic personal information subject to regulation or protection under the Gramm-Leach-Bliley Act (or related rules or regulations); (iv) social security numbers, driver’s license numbers or other government ID numbers; or (v) except for Customer’s Users’ names, Customer’s Users’ emails at Customer URL, and Customer-provided User phone numbers used solely to transact Customer’s business (“Customer User Data”), any information about individuals or other data similar to the foregoing that is protected under foreign or domestic laws or regulations or for which Customer does not have the right to submit (collectively, “Prohibited Data”). For the avoidance of doubt, and notwithstanding the foregoing, this section does not prohibit the Customer from adding a hyperlink in the locations in the Platform designated by GUIDEcx that link to Prohibited Data stored outside the Platform, provided that Prohibited Data is not stored in or submitted to the Platform. Notwithstanding any other provision to the contrary, GUIDEcx shall have no liability whatsoever under (1) the Agreement, or (2) any laws, rules, regulations, or industry standards by which Customer is required to comply, for any Customer Data or Prohibited Data submitted to or processed by the Platform or Services in violation of this Section 4.2.
4.3. Customer Privacy Policy. Customer shall implement a privacy policy that clearly and conspicuously explains how Customer collects, processes, stores, uses, enhances and/or discloses any data that is provided, uploaded or otherwise submitted through the Platform and shall make such privacy policy publicly available to its Users and any other relevant individuals in accordance with Applicable Data Protection Laws. Customer’s privacy policy shall appropriately reflect GUIDEcx’s use and processing of Customer Data under the Agreement. Customer shall ensure that its privacy policy complies with all Applicable Data Protection Laws, and Customer shall strictly comply with its privacy policy.
4.4. Data Processing Agreement. To the extent required by Applicable Data Protection Laws, Customer and GUIDEcx agree that the terms of the Data Processing Agreement, incorporated herein by reference, and which can be found at https://www.guidecx.com/dpa/, shall apply to GUIDEcx’s provision of the Services.
4.5. User Templates. If Customer provides a User (i.e. a system integrator that is also a subscriber to GUIDEcx, an independent contractor, etc.) with a Platform template that is independently created or conceived by Customer, such User hereby authorizes and agrees to allow GUIDEcx to provide performance related data generated through the template to Customer. - FINANCIAL TERMS
5.1. General. Fees and payment terms are specified in the applicable Order. Except as otherwise expressly specified in the Order, all recurring fees payment obligations start from the execution of the Order. All fees in an Order are dependent on the number of authorized Users permitted to access the Services, as set forth in the applicable Order. There shall be no fee adjustments or refunds for any decreases in User access accounts or Services during the Term. Additional User access accounts must be purchased in the event usage exceeds the quantity set forth in the Order and the applicable fees for such excess usage shall be prorated for the remainder of the then-current term of the applicable Order and automatically renewed for subsequent terms. GUIDEcx may increase the fees for access to the Platform once per year by up to 5% or by a percentage equal to the current Consumer Price Index, whichever is greater. GUIDEcx will give Customer thirty (30) days written notice of any fee increase. All payments shall be made in U.S. Dollars and may be made via check, ACH or credit card. Interest accrues on past due balances at the lesser of 1½% per month or the highest rate allowed by law. Customer shall reimburse GUIDEcx for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting amounts due to GUIDEcx hereunder. If any payment is made by Customer via credit card, Customer hereby agrees that its credit card information will be shared with and processed by GUIDEcx’s third party payment processor subject to such payment processor’s terms of service and privacy policy.
5.2. Taxes. Customer shall be responsible for payment of all taxes (excluding those on GUIDEcx’s net income) relating to the provision of the Services, except to the extent a valid tax exemption certificate or other written documentation acceptable to GUIDEcx to evidence Customer’s tax exemption status is provided by Customer to GUIDEcx prior to the delivery of Services. - CONFIDENTIALITY.
6.1. Confidential Information. Confidential Information means nonpublic information that relates to or is provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that the Disclosing Party designates as being confidential or that under the circumstances surrounding disclosure should be treated as confidential (“Confidential Information”). Confidential Information includes, without limitation: information relating to the disclosing party’s software or hardware products that may include source code, API data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods as well as information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists and financial results. Confidential Information also includes information received from third parties that the Disclosing Party is obligated to treat as confidential.
6.2. Exceptions. Confidential Information shall not include any information that the Disclosing Party can show: (a) is already known to or in possession of the Receiving Party prior to disclosure pursuant to this Agreement other than by breach of contract; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) is received by the Receiving Party from a third party without any restriction on confidentiality; or (d) is approved for release by prior written authorization of the Disclosing Party.
6.3. Confidentiality Obligations. The Receiving Party agrees to maintain the confidentiality of the Disclosing Party’s Confidential Information and to use at least the same care and precaution in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, the Receiving Party shall not publish or disclose the Disclosing Party’s Confidential Information to third parties other than its employees, personnel, attorneys, advisors, and potential investors who are bound to keep such information confidential. Either party may only use Confidential Information in order to fulfill its obligations under this Agreement.
6.4. Required Disclosures. Notwithstanding anything on the contrary in this Section 6, the Receiving Party may disclose the Confidential Information of the Disclosing Party in the event that the Receiving Party receives a subpoena or other government process that purports to require the production of Confidential Information of the Disclosing Party for use in an action or proceeding, provided that the Receiving Party shall (a) promptly inform the entity issuing such subpoena or other government process of the existence of this Agreement, (b) promptly inform the Disclosing Party of the receipt of such subpoena or other government process and (c) not oppose any effort by the Disclosing Party to quash or limit any such subpoena or other government process. In the event the Disclosing Party fails to intervene to quash or limit such subpoena or other government process after being given notice and a reasonable opportunity to do so or such intervention fails or is denied by a court of competent jurisdiction, such Confidential Information may be produced. In the event that any Confidential Information is ordered produced in an action or proceeding, such Confidential Information shall not lose its confidential status through such use and the Receiving Party shall take all reasonable and necessary steps to maintain the confidentiality of such Confidential Information during such use. - OWNERSHIP – INTELLECTUAL PROPERTY RIGHTS.
7.1. GUIDEcx Rights. The Platform, all materials used in the performance of any Professional Services (other than any Customer Materials (as defined below)) and all deliverables provided in the performance of any Professional Services will at all times remain the exclusive, sole and absolute property of GUIDEcx or its licensors. Customer does not acquire any right, title, or interest in or to the Platform or any deliverables provided as part of the Professional Services except the limited right to access and use them in accordance with the terms of the Agreement. All rights, title and interest (including all intellectual property rights) in or to the Services not expressly granted under the Agreement are reserved by GUIDEcx and its licensors. If Customer or its Users elect to provide GUIDEcx with any feedback, comments, or suggestions for improvements of any kind related to the Services (“Feedback”), the Feedback will be the sole and exclusive property of GUIDEcx and Customer hereby assigns all rights in and to the Feedback to GUIDEcx. GUIDEcx will have the right to use and disclose such Feedback in any manner and for any purpose, without remuneration, compensation, or attribution to Customer or its Users.
7.2. Customer Rights. Customer retains sole and exclusive ownership to (a) the Customer Data, (b) content, materials or technology supplied by Customer to GUIDEcx in connection with GUIDEcx’s provision of the Platform or the Professional Services (the “Customer Materials”) and (c) Customer’s name, trademarks and logos (the “Customer Marks”). Customer hereby grants GUIDEcx a non-exclusive, royalty-free, fully-paid, non-sublicensable (except to GUIDEcx’s contractors performing services on its behalf) license during the Term to (i) use, copy, display and reproduce the Customer Marks and (ii) use, transmit, reproduce, display, distribute and prepare derivative works of the Customer Materials, in each case as necessary to provide the Platform and any Professional Services to Customer. Customer also grants GUIDEcx a non-exclusive, royalty-free, perpetual license to use the Customer Marks to identify Customer as a customer of GUIDEcx on promotional materials and GUIDEcx’s website. Any use of the Customer Marks shall be in accordance with Customer’s standard trademark guidelines, if any such guidelines are provided to GUIDEcx. - DISCLAIMERS.
8.1. General Warranty Disclaimer. THE PLATFORM AND ALL OTHER SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, SECURITY OR CONTENT OF THE PLATFORM OR OTHER SERVICES, OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHERMORE, GUIDECX DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERROR, VIRUSES OR OTHER MALICIOUS CODE, WILL BE UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY GUIDECX.
8.2. Connections over the Internet. GUIDEcx will implement reasonable and appropriate measures designed to secure Customer Data against accidental or unlawful loss, access or disclosure. However, Customer acknowledges that use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the services and customer data notwithstanding GUIDEcx’s use of security measures. To the extent GUIDEcx has implemented such reasonable and appropriate security measures, GUIDEcx cannot and does not guaranty the privacy, security or authenticity resulting from such access by third parties to any information so transmitted over or stored in any system connected to the internet.
8.3 Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. If you have any complaints in connection with any Third Party Materials or third-party website, please contact such third party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov. - INDEMNIFICATION
9.1 Indemnification by GUIDEcx. GUIDEcx shall indemnify, defend and hold harmless Customer and its officers, directors and employees (“Customer Indemnified Parties”) against any damages, losses, expenses, costs or liabilities incurred by any Customer Indemnified Party in connection with any action, claim or proceeding brought against a Customer Indemnified Party by a third party alleging that the Platform infringes the intellectual property rights of a third party. GUIDEcx shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to (a) Customer’s or its Users’ use of the Platform other than as contemplated by this Agreement, (b) any modifications made to the Platform by any person other than GUIDEcx or its authorized representative, (c) any combination of the Platform with services or technologies not provided by or expressly authorized by GUIDEcx, (d) use of any version other than the latest commercially available version of the Platform made available to Customer, or (e) Customer’s or its Users’ use of the Platform or portion thereof after GUIDEcx has terminated this Agreement in accordance with this Section 9.1. If in GUIDEcx’s opinion the Platform may be infringing, GUIDEcx may in its discretion (x) obtain a license to enable Customer to continue to use the potentially infringing portion of the Platform, (y) modify the Platform to avoid the potential infringement, or (z) if the foregoing cannot be achieved after using commercially reasonable efforts, terminate the Agreement or access to the infringing portion of the Platform and refund the amount of any pre-paid fees applicable to any access to the Platform to be provided after the termination date. GUIDECX’S OBLIGATIONS IN THIS SECTION 9.1 SHALL BE ITS SOLE AND EXCLUSIVE LIABILITY TO CUSTOMER, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS INVOLVING THE PLATFORM OR ANY OTHER SERVICES.
9.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless GUIDEcx, its affiliates and their respective officers, directors and employees (“GUIDEcx Indemnified Parties”) against any damages, losses, expenses, costs or liabilities incurred by any GUIDEcx Indemnified Party in connection with any action, claim or proceeding brought against a GUIDEcx Indemnified Party by a third party (including any User) arising from or related to (a) Customer’s or its Users’ access and use of the Platform and other Services, including, without limitation, any action that violates this Agreement, or (b) GUIDEcx’s use of the Customer Materials and Customer Data in accordance with the terms of the Agreement.
9.3. Indemnification Procedures. A party seeking indemnification under this Section 9 will provide the indemnifying party with prompt written notice of the relevant claim (provided that the failure to provide prompt notice will only relieve the indemnifying party of its obligations to the extent it is materially prejudiced by such failure) and permit the indemnifying party to control the defense, settlement or compromise of such claim. The indemnified party may employ counsel at its own expense to assist it with respect to such claim; provided, however, that if such counsel is necessary because the indemnifying party does not assume control, the indemnifying party will be responsible for the expense of such counsel. The party not controlling such defense may participate therein at its own expense and the party controlling such defense shall keep the other party advised of the status of such claim and the defense thereof. Neither party shall have authority to settle any claim on behalf of the other. - LIMITATION OF LIABILITY.
GUIDECX SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF THE SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT OR ANY OTHER THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, COST OF COVER OR OTHER PECUNIARY LOSS, EVEN IF GUIDECX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF GUIDECX TO CUSTOMER FOR ANY CLAIMS, REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ARISING AS A RESULT OF NEGLIGENCE, SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF FEES PAID TO GUIDECX HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EVEN: (1) IF GUIDECX IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, (2) IF SUCH DAMAGES WERE FORESSEABLE, AND (3) CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THE FOREGOING ALLOCATION OF RISK AND LIMITATION OF LIABILITY HAS BEEN NEGOTIATED AND AGREED BY THE PARTIES AND FORMS THE BASIS OF THEIR WILLINGNESS TO ENTER INTO THIS AGREEMENT. - TERM AND TERMINATION.
11.1. Term. The initial term of the Agreement is specified in the Order (“Initial Term”). Thereafter, the Agreement will automatically renew for successive terms equal to the Initial Term, unless either party notifies the other of its intent to not renew at least thirty (30) days prior to the end of the Term.
11.2. Termination. Either party may terminate the Agreement immediately upon written notice at any time if the other party fails to cure any material breach or provide a written plan of cure reasonably acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of payment obligations which shall have a ten (10) day cure period. Where a party has rights to terminate, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Order. Orders that are not terminated shall continue in full force and effect under the terms of this Agreement.
11.3. Suspension. GUIDEcx will be entitled to suspend Customer’s and its Users’ access to the Platform immediately upon written notice to Customer in the event Customer or its Users: (1) breach Section 3.2, (2) if Customer fails to make timely payment of fees, or (3) if, in GUIDEcx’s reasonable judgment, there is a security risk created by Customer that may interfere with the proper continued provision of the Platform or the operation of GUIDEcx’s network or systems. Customer remains obligated for all payment obligations under this Agreement in the event of suspension.
11.4. Effect of Termination. Upon termination or expiration of these Terms, all Orders and licenses set forth thereunder shall terminate, and Customer’s right to access the Platform shall cease. No termination or expiration of this Agreement shall affect any rights or liabilities of a party that accrued prior to the date of termination or expiration, including any fees accrued or payable to GUIDEcx prior to the effective date of termination or expiration. Upon any termination or expiration of this Agreement, GUIDEcx shall have no obligation to maintain or provide any Customer Data to Customer and may thereafter delete all Customer Data in its systems or otherwise in its possession or under its control.
11.5 Survival. Sections 1, 4.1, 4.2, 5, 6, 7, 8, 9, 10, 11.3, 11.4, 11.5, and 12 shall survive termination of this Agreement. - MISCELLANEOUS PROVISIONS
12.1. Independent Contractor. GUIDEcx and Customer agree that its relationship with the other party is that of an independent contractor. Neither GUIDEcx nor Customer are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.
12.2. Governing Law and Venue. This Agreement will be governed by the laws of the State of Utah, without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court sitting in Salt Lake County, Utah, and each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees..
12.3. Modifications. GUIDEcx may modify this Master Agreement at any time by posting a revised version on the GUIDEcx website, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order specifies an Initial Term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next renewal term, if any. Each Order is subject to the most current version of the Master Agreement in effect pursuant to this section.
12.4. Severability. In the event one or more of the provisions of this Agreement is held to be invalid or otherwise unenforceable by a court of competent jurisdiction for the matter in question, the enforceability of the remaining provisions shall be unimpaired.
12.5. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
12.6. Assignment. Neither party shall assign the Agreement or any of its rights and obligations hereunder without the prior written consent of the other party; provided, however, that either party may assign the Agreement and all of its rights and obligations hereunder to an affiliate or as part of a merger or sale of substantially all the assets or stock of such party. Any assignment by either party in violation of this section shall be null and void. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns.
12.7. Equitable Remedies. The parties agree that (a) the unauthorized disclosure of Confidential Information may cause irreparable harm to the party whose information is disclosed and (b) Customer’s breach of Section 3.2 may cause irreparable harm to GUIDEcx. In such event, the applicable affected party shall be entitled to seek injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of posting any bond.
12.8. Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this Agreement or to its breach shall be settled by confidential binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect. The arbitration proceedings shall be conducted before a single arbitrator. The place of arbitration shall be Salt Lake City, Utah. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The prevailing party, as determined by the arbitrator, in any dispute arising out of or relating to this Agreement is entitled to recover reasonable attorneys’ fees and other costs incurred in connection with such dispute, in addition to any other relief to which the prevailing party may be entitled.
12.9. Force Majeure. Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this section, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, explosions, any law or direction of any governmental entity, pandemics, epidemics, emergencies, civil unrest, viruses or denial of service attacks, telecommunications failure, or failure of the internet or internet service provider. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
12.10. Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person and address set forth in the signature block of the Order Form. Notices shall be considered to have been given at the time of actual delivery in person, two (2) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service, provided in each case that delivery in fact is affected. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this section.
12.11. Entire Agreement. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
