1. SERVICES AND SUPPORT.
1.1 Company Provision of Services. Subject to this Master Services Agreement (“Agreement”), PerkCity, Inc., a Delaware corporation d/b/a Nectar HR (“Company”) will provide to you (“Client” or “you”) the services set forth in the online Quote delivered to Client by Company or its authorized representative (the “Services”). Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.
1.2 License. The Services are provided by Company as “software-as-a-service,” and thus Client does not have a license to download any aspect of the Services, except as expressly permitted or intended through the Services. Client is hereby granted, during the Term (defined below), and subject to and limited by the terms of this Agreement, a non-exclusive, non-sublicensable, non-transferable, limited, revocable license to access and use the Services, conditioned on compliance with the terms of this Agreement. With respect to any Services that Company provides through distribution of software or documents prepared by Company, or Services that are otherwise provided to Client for use on Client premises or devices, Company hereby grants Client a non-exclusive, non-transferable, non-sublicensable license to use such distributed Services during the Term and conditioned on compliance with this Agreement, only in connection with the Services.
1.3 Use Restrictions. Client may use the Services only for Client’s internal business purposes and not for any commercialization by Client. Furthermore, Client will not, directly or indirectly: (i) reverse engineer, decompile, copy, mirror, disassemble, or otherwise attempt to discover or reproduce the source code, object code, or underlying structure, feature, function, user interface, ideas, know-how or algorithms relevant to the Services; (ii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Company in writing or authorized within the Services and its features); (iii) use or make available any portion of the Services for any timesharing, commercial, or service bureau purposes or otherwise for the benefit of a third party, including as an outsourcing offering, except as expressly set forth herein; (iv) build or create applications, programs, or services that are competitive with the Services; (v) remove any proprietary notices or labels; (vi) use the Services beyond other usage limits set forth in this Agreement; or (vii) or use the Services, including any documentation relating to the Services, in any manner or for any purpose that infringes, misappropriates, or otherwise violates the intellectual property right or other right of any person.
1.4 Company Monitoring. Although Company has no obligation to monitor Client’s use of the Services, Company may do so and may collect and compile Aggregated Data as set forth in section 3.3 below.
1.5 Services Suspension. In connection with Company’s monitoring activities set out in section 1.4 above, and notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Client’s access to the Services if: (i) Company reasonably determines that (A) there is a threat or attack on any of the Services or Company’s intellectual property; (B) Client’s use of the Services disrupts or poses a security risk to Company or to any other client or vendor of Company; (C) Client is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Client 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 Client is prohibited by applicable law, including changes made thereto; or (ii) any vendor or third party provider of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Client to access the Services (any such incident, a “Service Suspension”). Company agrees to use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. Further, Company will 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. However, Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client may incur as a result of a Service Suspension.
1.6 Control Over Services. So long as Company does not materially decrease the functionality of Services during the Term: (i) Company retains sole control over the operation, provision, maintenance, management, and performance of the Services, including the selection, deployment, modification, and replacement of any software component of the Services, and maintenance, upgrades, corrections or repairs thereof; (ii) Company reserves the right to make any changes to any software component of the Services that it deems necessary or useful to maintain or enhance the quality or delivery of Company’s Services to its customers, the competitive strength of or market for Company’s Services, or the cost efficiency or performance of the Services; and (iii) Company may use global resources to provide Services and perform its obligations, unless otherwise expressly agreed.
2. CLIENT RESPONSIBILITIES; RESTRICTIONS.
2.1 Account Creation. As part of the registration process, Client will identify an administrative user name and password for Client’s Company account (the “Client Account”). Client shall be solely responsible for maintaining, remembering and keeping confidential the Client Account information, including username and password. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate for use with, the Client Account. Client shall be responsible for maintaining the security of the Client Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client Account with or without Client’s knowledge or consent.
2.2 Client Representations. Client acknowledges and agrees that Client will use the Services only in compliance with this Agreement and with Company’s standard published policies then in effect, including as published on Company’s websites or within any application through which the Services are available and all applicable laws and regulations.
2.3 Additional Equipment Responsibilities. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, and for all uses of the Equipment with or without Client’s knowledge or consent.
2.5 Client Data. Client may be required to provide information or data to Company to enable the provision of the Services, and Company may collect data or information from Client by or through the access or use of the Services or any Software (“Client Data”). Company acknowledges that, as between Company and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to such Client Data. Client hereby grants Company a non-exclusive, worldwide, royalty-free right and license to any intellectual property, including Client Data, that is necessary for Company and its designees to perform the Services. Client has sole responsibility for the accuracy, quality, and legality of any Client Data, including the means by which it was acquired by Client.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS; DATA COLLECTION.
3.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose confidential business, technical, proprietary, or financial information relating to the Disclosing Party’s business, clients and vendors, and services (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Services. Proprietary Information of Client includes non-public Client Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after one (1) year following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party without an accompanying duty of confidentiality, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party (as demonstrated by clear evidence) or (e) is required to be disclosed by law.
3.2 Ownership Rights. Company shall own and retain all right, title, and interest in and to (i) the Services, all improvements, enhancements, or modifications thereto, (ii) any software, applications, inventions, or other technology developed in connection with the Services or any support, (iii) any suggestions or feedback provided to Company by Client, and (iv) all intellectual property rights related to any of the foregoing. No transfer of ownership of any intellectual property will occur under this Agreement. No rights or licenses are granted except as expressly set forth herein.
3.4 Processing of Personal Data. To the extent Company processes Client Data or Client personnel data that constitutes Personal Data (defined below), Company and Client agree that Client shall be the controller of such Personal Data and Company shall act only as the processor of the Personal Data, as those terms are defined under applicable U.S. and international privacy laws. Client and Company further acknowledge and understand that Company shall engage in processing of Personal Data solely for the purpose of providing the Services to Client and subject to the terms of the Company’s data processing agreement (“DPA”) (available here), which DPA is incorporated into the terms of this Agreement. For purposes of this section, “Personal Data” means (i) any Client Data or information obtained in connection with this Agreement relating to an identified or identifiable natural person; (ii) any Client Data that can reasonably be used to identify or authenticate an individual, including but not limited to name, contact information, government- or employer-issued identification numbers, and other personal identifiers; and (iii) any Client Data or information that may otherwise be considered “personal data” under applicable U.S. and international privacy laws (including, without limitation, Regulation (EU) 2016/679 (General Data Protection Regulation)).
3.5 Security of Client Data; Data Breaches. Company will use industry accepted technical and organizational measures designed to secure its systems and prevent unauthorized access to or use of the Services and to protect Client Data (including Personal Data) against accidental loss, corruption, and Data Breaches (defined below). The parties acknowledge that Company shall not be liable for any loss, destruction, alteration, unauthorized disclosure, or corruption of Client Data caused by any third party or Third Party Products. In the event of any Data Breach relating to Client Data, Company will, consistent with and to the extent permitted by applicable law, notify Client of the Data Breach as soon as reasonably practicable after Company becomes aware of the Data Breach and implement a cyber incident response plan in accordance with accepted industry standards. For purposes of this Agreement, “Data Breach” means (i) any unauthorized access to or disclosure of Client Data and (ii) any act or omission that materially compromises the security, confidentiality, or integrity of Client Data or the physical, technical, administrative, or organizational safeguards put in place by Company with respect to such Client Data.
4. PAYMENT AMOUNT.
4.1 Payment Amount. Client will pay Company the applicable fees and amounts for the Services in accordance with the payment terms on the Quote the (“Amount”). Company reserves the right to change the Amount or applicable charges and to institute new charges and Amount at the end of the Term or then current renewal term (if any), upon thirty (30) days’ prior notice to Client (which may be sent by email). If Client believes that Company has billed Client incorrectly, Client must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Client support department.
4.2 Late Fees. Unpaid Amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in termination of Services as set out in section 5.2 below.
4.3 Taxes. All fees and Amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client 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 fees and Amounts payable by Client hereunder, other than any taxes imposed on Company’s income.
5. TERM AND TERMINATION.
5.1 Term. Subject to earlier termination as provided below, the term of this Agreement (the “Term”) shall begin on the Effective Date defined in the Quote (“Effective Date”) and continue for the term set out in the Quote plus any renewal terms agreed to by the parties hereto, whether in writing or through online orders through the Company’s website (if applicable).
5.2 Termination for Cause. In addition to any other remedies it may have, including Company’s suspension rights set out in section 1.5 above, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within ten (10) days of such notice. If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Client will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 Termination for Convenience. Either party may terminate this Agreement, at any time and for any or no reason, on sixty (60) days’ advance written notice to the non-terminating party.
5.4 Survival. All sections of this Agreement which by their nature should survive termination will survive termination or expiration of this Agreement, including, without limitation, accrued rights to payment (section 4), confidentiality obligations (section 3.1), data collection procedures (section 3.3 and 3.4), warranty disclaimers (section 6), indemnity rights (section 7), and limitations of liability (section 8).
6. WARRANTY AND DISCLAIMER.
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Company Indemnity Obligations. Company shall hold Client harmless from liability to third parties resulting from infringement by the Services of any United States patent, any copyright or misappropriation of any trade secret or other intellectual property right, provided Company is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Notwithstanding the preceding sentence, Company will not be responsible for any settlement it does not approve in writing or of which it does not receive notice consistent with this section.
7.2 Exclusions from Company Indemnity Obligations. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Services is not strictly in accordance with this Agreement.
7.3 Replacement of Infringing Services. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction, as determined in the final, non-appealable order of such court, to be or are believed by Company to be infringing, Company may, at its option and expense (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Client a license to continue using the Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder immediately and provide Client a refund of any prepaid, unused fees or Amounts for the Services.
7.4 Client Indemnification. Client hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation on the part of Client of this Agreement or otherwise from Client’s use of Services or as a result of Company’s reliance on any Client Data or use of Client Data in connection with the provision of the Services.
8. LIMITATION 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, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) 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 TO THE PARTIES HERTO. 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, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Client except with Company’s prior written consent. Company may transfer and assign, whether by operation of law, merger, direct assignment, or otherwise, any of its rights and obligations under this Agreement without consent of Client.
9.3 Entire Agreement. This Agreement, including the DPA and policies of the Company incorporated herein, 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.4 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever.
9.5 Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party, as determined by the final, non-appealable order of a court of competent jurisdiction, will be entitled to recover costs and attorneys’ fees.
9.6 Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given (i) when received, if personally delivered; (ii) the day after it is sent, if transmitted by facsimile or e-mail or if sent for next day delivery by recognized overnight delivery service; and (iii) upon receipt, if sent by certified or registered mail, return receipt requested.
9.7 Governing Law. This Agreement shall be governed by the laws of the State of Utah, without regard to its conflict of laws provisions.
9.8 Publicity. Client agrees to reasonably cooperate with Company to serve as a reference account upon request, and hereby grants Company a license to display Client’s name and logo on its website and other marketing and sales materials to communicate that Client is a customer of Company.
9.9 Export Restrictions. Client 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), that prohibit or restrict the export or re-export of the Services or any Client Data outside the United States..