MASTER AGREEMENT
This Master Agreement (this “Agreement”), is by and between Enceladus Technologies, LLC. (“COMPANY”) and the “Customer”. COMPANY and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Customer Appointment; Statements of Work.
(a) Statement(s) of Work. Pursuant to the terms of this Agreement, and from time to time during the term of this Agreement, COMPANY may provide Customer with professional services or access to a product or software application for Customer’s own use specified in one or more Statements of Work (“SOW”) to this Agreement. Each Statement of Work is incorporated into this Agreement by reference and will include a description of the services or a description of the product or application to be provided by COMPANY, a proposed timeline or term, and the fees payable to COMPANY for the services, product, or application provided. To the extent that any conflict arises between this Agreement and the Statement of Work, the terms of this Agreement shall control except to the extent expressly provided in a SOW by reference to the affected provision or provisions of this Agreement. The parties acknowledge and agree that until a SOW is executed by the parties, COMPANY is not required to provide access to any product or application or provide any services to Customer or its Customers hereunder by virtue of this Agreement alone.
(b) Customer Pricing. COMPANY’s price for the services, product, or application sold to Customers by Customer is set forth in Exhibit A. COMPANY may revise its price for such products and services at any time in its sole discretion; provided, however, that COMPANY will give Customer at least thirty (30) days prior written notice of such changes to the price.
2. Access and Use of Services.
(a) Provision of Access. Subject to and conditioned on payment of the applicable Fees and compliance with all other terms and conditions of this Agreement, COMPANY hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g)) right to access and use the Services listed in a SOW during the Term, solely for use by Customer in accordance with the terms and conditions herein. Such use is limited to Customer’s. COMPANY shall provide to Customer the necessary access and authentication means or connections to allow Customer to access the Services. The total number of Authorized Users will not exceed the number set forth in the applicable SOW, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. Customer shall be solely responsible for any use of the Services accessed by or through the access and authentication means and processes provided by COMPANY.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, COMPANY hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any authorized users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation except as expressly permitted by this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, rule or regulation.
(d) Reservation of Rights. COMPANY reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer, its Customers, or any third party any intellectual property rights or other right, title, or interest in or to the COMPANY IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, COMPANY may temporarily suspend Customer’s and any authorized user’s access to any portion or all of the Services if: (i) COMPANY reasonably determines that (A) there is a threat or attack on any of the COMPANY’s systems, assets or information; (B) Customer’s or any authorized user’s use of the Services disrupts or poses a security risk to the COMPANY’s systems, assets or information or to any other customer or vendor of COMPANY; (C) Customer or any user, is using the Services or COMPANY’s systems, assets or information for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) COMPANY’s provision of the Services to Customer, its Customer, or any authorized user is prohibited by applicable law; (ii) any vendor of COMPANY has suspended or terminated COMPANY’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). COMPANY shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. COMPANY shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. COMPANY will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer, its Customers, or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, COMPANY may monitor Customer’s or its Customer’s use of the Services and collect and compile Aggregated Statistics. As between COMPANY and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by COMPANY. Customer acknowledges that COMPANY may compile Aggregated Statistics based on Customer Data or Customer Data input into the Services. Customer agrees that COMPANY may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer, Customer’s Confidential Information, or Customer’s Customers.
(g) Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of users, and any act or omission by a user that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all users aware of this Agreement’s provisions to the extent applicable to such user’s use of the Services and shall cause users to comply with such provisions.
3. Service Levels and Support.
(a) Service Levels. Subject to the terms and conditions of this Agreement, COMPANY shall use commercially reasonable efforts to make the Services available in accordance with the service level set out in Exhibit A.
(b) Support. The access rights granted hereunder entitles Customer to the Services support described on Exhibit A during the Term.
4. Fees and Payment.
(a) Fees. Customer shall pay COMPANY the fees (“Fees”) as set forth in Exhibit A and detailed on each SOW, without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth on an invoice or listed in a SOW hereto. If Customer fails to make any payment when due, without limiting COMPANY’s other rights and remedies: (i) COMPANY may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse COMPANY for all costs incurred by COMPANY in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, COMPANY may suspend Customer’s access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer or a Customer hereunder, other than any taxes imposed on COMPANY’s income.
(c) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. COMPANY may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid COMPANY with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 4(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 5.0% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
5. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
(a) Services. Customer acknowledges that, as between Customer and COMPANY, COMPANY owns all right, title, and interest, including all intellectual property rights, in and to the Services and all intellectual property subsisting in or relating to the Services.
(b) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to COMPANY by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), COMPANY is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to COMPANY on Customer’s behalf, and on behalf of its employees, contractors and agents, all right, title, and interest in, and COMPANY is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although COMPANY is not required to use any Feedback.
7. Limited Warranty.
(a) Services. COMPANY warrants that the Services will conform in all material respects to the service levels set forth in Exhibit A when accessed and used in accordance with the Documentation. COMPANY does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit A. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 7(a), THE SERVICES ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S, ITS CUSTOMERS’, OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Indemnification.
(a) Customer Indemnification. Customer shall indemnify, hold harmless, and, at COMPANY’s option, defend COMPANY from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s, a Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by COMPANY or authorized by COMPANY in writing; or (iv) modifications to the Services not made by COMPANY, provided that Customer may not settle any Third-Party Claim against COMPANY unless COMPANY consents to such settlement, and further provided that COMPANY will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability. IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination.
(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”). This Agreement will automatically renew unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”)
(b) Termination. The parties acknowledge that this Agreement is a master agreement pursuant to which a one or more SOWs may be issued. Accordingly, for the avoidance of doubt and except as otherwise provided for hereunder, termination of the Agreement shall not automatically result in the termination of any SOW, each SOW being terminable in accordance with its own provisions; provided, however, that the terms and conditions of this Agreement shall continue to govern any remaining SOW until the work under that SOW has been either been completed or the SOW is otherwise terminated in accordance with its terms, if applicable. If the SOW is silent in regard to termination, then the termination provisions under this Agreement shall apply for that particular SOW. In addition to any other express termination right set forth in this Agreement
(i) COMPANY may terminate this Agreement or any SOW, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after COMPANY’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the COMPANY IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the COMPANY IP and certify in writing to the COMPANY that the COMPANY IP has been deleted or destroyed. No expiration or termination will affect Customer’s and its Customers’ obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer or its Customers to any refund.
(d) Survival. This Section 10 and Sections 4, 5, 6, 7(b), 8, 9 and the applicable portions of Sections 11 and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related SOWs, Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control to prevent or mitigate, including but not limited to acts of God, pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law, Jurisdiction and Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted and resolved exclusively in a state or federal court located in Cuyahoga County, Ohio and each Party irrevocably consents to the exercise of personal jurisdiction by and exclusive venue in such courts.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of COMPANY. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
12. Definitions.
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by COMPANY in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) “Communication Fees” means network communication fees that apply to environments when third party communication networks are utilized to deliver distributed connectivity over networks such as cellular communications.
(d) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or its Authorized Users through the Services.
(e) “Documentation” means COMPANY’s user manuals, handbooks, videos, helpdesk articles, and guides relating to the Services provided by COMPANY to Customer either electronically or in hard copy form/end user documentation relating to the Services.
(f) “COMPANY IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, COMPANY IP includes Aggregated Statistics and any information, data, or other content derived from COMPANY’s monitoring of Customer’s access to or use of the Services but, does not include Customer Data or Customer Data.
(g) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or its Authorized Users through the Services
(h) “Services” means COMPANY’s proprietary digital mapping and navigation technology and software solutions. COMPANY’s software products are described in Exhibit A hereto.
Exhibit A
PRODUCT DESCRIPTIONS; PRICING; SERVICE LEVELS & SUPPORT
1. Standard Consulting Services
Unless otherwise agreed in writing, COMPANY’s consulting rate is $175.00 per hour. This includes, but not limited to:
a) IT planning and engineeringb) Cybersecurity compliance and incident responsec) Physical security consulting and integrationd) Project implementation and documentation2. Hosting Services
Unless covered by an active SOW or Service Agreement, month-to-month or expired hosting arrangements are billed at $3,000.00 per month minimum, including:
a) Hosted infrastructure or VMs
b) Backup and disaster recovery
c) Remote monitoring and access
d) Systems administration
Disclaimer: COMPANY is not responsible for outages caused by third-party platforms, networks, or utilities. Efforts will be made to assist recovery, but COMPANY disclaims liability for third-party service failures.
3. Support Services
If not otherwise detailed in an SOW:
a) After-hours support is billed at 1.5x standard rate
b) On-site dispatch has a 4-hour minimum, plus mileage
c) Repairs billed at time and materials with 30% markup on materials
4. Service Level Objectives
COMPANY targets 99.9% uptime for hosted environments. Without an active agreement, support is provided on a best-effort basis.