Master Services Agreement
This Master Services Agreement (the “Agreement”),effective as of the Effective Date (as defined below), is by and between Accrete, Inc., a Delaware corporation (“Accrete”), and customer listed in the applicable Sales Order (“Customer”).
WHEREAS, Accrete provides (i) access to its cloud and on-premises based software offerings to its customers, and (ii) certain applicable services;
WHEREAS, Customer desires to access certain service and other offerings described herein and the applicable Sales Order, and Accrete desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, 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. Definitions.
“Access Credentials”means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Accrete Materials”means the Services, Documentation, and Accrete Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Accrete or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services orAccrete Systems. For the avoidance of doubt, Accrete Materials includePerformance Data and any information, data, or other content derived fromAccrete’s monitoring or support of Customer’s access to or use of the Services, but do not include Customer Data.
“Accrete Systems” means the information technology infrastructure used by or on behalf of Accrete in performing theServices, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Accrete or through the use of third-party services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50% of the voting securities of a Person.
“Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased here under.
“Beta Services” means Accrete’s services or functionality that may be made available to Customer to try at its option at no additional charge and which is clearly designated as beta, pilot, limited release, developer preview, non-production or evaluation, or by a similar description.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Performance Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Systems”means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Documentation” means any manuals, instructions, or other documents or materials that the Accrete provides or makes available to Customer in any form or medium and which describe the functionality, performance metrics, components, features, or requirements of the Services orAccrete Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permits transfer of software or data to an unauthorized destination or permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or(b) prevent Customer or any Authorized User from accessing or using theServices or Accrete Systems as intended by this Agreement.
“Intellectual PropertyRights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance claim.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy.“Processing” and “Processed” have correlative meanings.
“Performance Data” means data and information related to Customer’s use of the Services that is used by Accrete in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Platform” means Accrete’s proprietary application software and/or website, including all modules, functions, features identified in a Sales Order or otherwise generally made available by Accrete to its customers. The Platform includes all models, updates, releases, improvements, and corrections to the Platform.
“Sales Order” means an order pursuant to which from time to time Customer orders the Services or rights to the Platform.
“Services” means the services that are ordered by the Customer under a Sales Order, including (i)limited access and use rights to the Platform, (ii) support services, and (iii)any other similar generally applicable services that Accrete provides to its customers as stated in the Sales Order or the SOW.
“Third-Party Materials”means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Accrete.
2. Services.
2.1 Customer Content. Customer and Authorized Users may provide or otherwise make available certain data, software, third-party services, and other content uploaded, accessed, stored, or submitted (via the API or by other means) for the use of the Services by or on behalf of the Customer or anyAuthorized Users (“Input”), and receive output from the Services and the Platform based on the Input (“Output” and together with Input, “Customer Content”).As between Customer and Accrete, and to the extent permitted by applicable law, Customer (a) retains all ownership rights in Input and (b) owns all Output. Accrete hereby assigns to the Customer all its right, title, and interest, if any, in and to Output. Customer is solely responsible for any and all obligations with respect for the accuracy, quality and legality of the Input. Customer is further responsible for all third-party licenses, consents and permissions needed for us to use the Input to provide the Services (including but not limited to verifying that theOutput does not infringe on any third party's rights).
2.2 Access and Use Restrictions. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and applicable Sales Order, Accrete hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 15.6) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and any applicable Sales Order. Unless expressly agreed in writing in the applicable Sales Order, the Services and all Output are for the Customer’s internal use only and not for resale to any third party.
2.3 Documentation License. Accrete hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.6) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.4 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Accrete has and will retain sole control over the operation, provision, maintenance, and management of the Accrete Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Accrete Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any:
(i) information, instructions, or materials provided by any of them to the Services or Accrete;
(ii) results obtained from any use of the Services or Accrete Materials; and (iii) conclusions, decisions, or actions based on such use.
2.5 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Accrete Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Accrete Materials, and the Third-Party Materials are and will remain with Accrete and the respective rights holders in the Third-Party Materials.
2.6 Changes. Accrete reserves the right, in its sole discretion, to make any changes to the Services and Accrete Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Accrete’s services to its customers; (ii) the competitive strength of or market for Accrete’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
2.7 Subcontractors. Accrete may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
2.8 Suspension or Termination of Services. Accrete may suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Accrete Materials, without incurring any resulting obligation or liability, if: (a) Accrete receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Accrete to do so; or (b) Accrete believes, in its good faith discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or fora purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Accrete’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. Use Restrictions
3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Accrete Materials except as expressly permitted by this Agreement and the applicable Sales Order and, in the case of Third-Party Materials, the applicable third-party license agreement. If Customer repeatedly creates content that violates the Agreement, the applicable Sales Order or applicable government regulations, Accrete may restrict access to the Customer’s account. For certain egregious violations (e.g., stolen data or materials, abusive materials, terrorism, extremely violent content, or any content that violates sanctions, etc.), Accrete may permanently restrict Customer’s account after a single violation in its sole reasonable discretion without refunding the fees paid. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) reverse assemble, reverse compile, decompile, translate, engage in model extraction or stealing attacks, or otherwise attempt to discover the source code or underlying components of the Services or the Platform, algorithms, and systems of the Services or Platform (except to the extent these restrictions are contrary to applicable law);
(b) create or prepare derivative works based upon the Platform or Services;
(c ) create any copy of or “mirror” the Platform;
(d) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Platform or Documentation;
(e) bypass or breach any security device or protection used by the Services or Accrete Materials;
(f) input, upload, transmit, or otherwise provide to or through the Services or Accrete Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(g) access or use the Services or Accrete Materials for purposes of competitive analysis of the Services or Accrete Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Accrete’s detriment or commercial disadvantage;
(h) use Output to develop any artificial intelligence models that compete with Accrete’s products and services;
(i) distribute or make Output commercially available to third parties other than as permitted by the applicable Sales Order;
(j) use any method to extract data from the Services other than as permitted through the APIs or as stated in the applicable Sales Order;
(k) buy, sell, or transferAPI keys from, to or with a third party unless explicitly permitted by the applicable Sales Order; or
(l) upload, post, transmit or generate using the Platform any audio recording, video, image, text, or any other content that:
(i) Infringes any third party’s Intellectual Property Rights or any right of publicity or privacy;
(ii) Contains any pornographic, defamatory, or otherwise unlawful content;
(iii) Contains materials generated by minors or depicting minors. A minor is someone under 18 years of age. All materials containing minors must be pre-approved by Accrete in writing;
(iv) Violates any sanctions, laws, statute, or regulation of any jurisdiction with authority over Customer or Accrete.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used; (b) provide all cooperation and assistance as Accrete may reasonably request to enable Accrete to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2 Customer’s Obligations for Customer Content. Customer is responsible for all Input and represents and warrants that it has all rights, licenses, and permissions required to provide Input to the Services. Customer is solely responsible for all use of the Output and evaluating the Output for accuracy and appropriateness for Customer’s use case, including by utilizing human review as appropriate.
4.3 Similarity of Output. Customer acknowledges that due to the nature of the Services and artificial intelligence generally, Output may not be unique and other users may receive similar content from Accrete. Responses that are requested by and generated for other Accrete users are not considered Customer Output. Accrete assignment of Output in Section 2.1 does not extend to other Accrete users’ output or any content delivered as part of any third party offerings or products.
4.4 Effect of Customer Failure or Delay. Accrete is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
4.5 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Accrete Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Accrete within 48 hours of any such actual or threatened activity.
5. Additional Terms.
5.1 Professional Services. Customer may elect from time-to-time to obtain from Accrete professional services relating to the Platform that are in addition to the Services including, customized user training, specialized support, integration, enhancements, and development pursuant to a Statement of Work (each, a “SOW”).Each SOW will describe the fees, costs and expenses payable by Customer to Accrete and any assumptions or dependencies relating to such professional services.
5.2 Beta Services. From time to time, Accrete may make certain Beta Services, features or functionality available to the Customer, which may be designated by Accrete as a beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description, to be used in conjunction with or separate from the Services, as applicable (each, a “Beta Service”). Pursuant to the terms hereof, Accrete agrees to allow Customer to test and evaluate the Beta Services and Customer may choose to try such Beta Services or not in its sole discretion. Beta Services are intended for evaluation purposes, are not generally available, may contain bugs and errors or provide incorrect Output, and may be subject to additional terms as set forth in any associated documentation. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE BETA SERVICES ARE PROVIDED “AS-IS” WITH RESPECT TO THEIR PERFORMANCE, SPEED, FUNCTIONALITY, SUPPORT, AND AVAILABILITY AND ACCRETE WILL HAVE NO LIABILITY OR OBLIGATION FOR ANY HARM OR DAMAGE ARISING FROM DEFICIENCIES THEREWITH. Customer agrees to provide ongoing feedback to Accrete regarding the Beta Services. Customer grants Accrete an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to the Customer.
5.3 Free Trial. If Customer registers for a free trial, Accrete will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s),or (b) the start date of any subscriptions ordered by Customer for suchService(s), or (c ) termination by Accrete in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page or in a signed applicable agreement between the Parties. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. DURING THE FREE TRIAL THE SERVICES ARE PROVIDED ”AS-IS” WITHOUT ANY WARRANTY AND ACCRETE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ACCRETE’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00.
5.4 Free Services. Accrete may make free Services available to Customer. Use of free Services is subject to the terms and conditions of this Agreement. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Accrete, in its sole discretion and for any or no reason, may terminate Customer’s access to the free Services or any part thereof. THE FREE SERVICES ARE PROVIDED ”AS-IS” WITHOUT ANY WARRANTY AND ACCRETE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OFANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ACCRETE’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00.
6. Data Backup.
The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. ACCRETE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
7. Security.
7.1 Information Security. Accrete will: (i) protect the security and integrity of the Customer Data that is collected, accessed, stored or received by Accrete in connection with the Platform or the performance of the Services; and (ii) develop, implement and maintain a comprehensive security program (“SecurityProgram”) with administrative, technical and physical safeguards to protect the Customer Data against any unauthorized disclosure or use of such data and any anticipated or reasonably foreseeable threats or hazards to the security or integrity of such Customer Data. The Security Program must comply with all applicable federal and state privacy laws. Accrete will update and keep the Security Program current in light of changes in relevant technology applicable Laws.
7.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c ) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Accrete Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
7.3 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
8. Fees and Payment.
8.1 Fees. Customer shall pay Accrete the fees set forth in the Sales Order (“Fees”) in accordance with this Section 8.
8.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, 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 hereunder, other than any taxes imposed on Accrete’s income.
8.3 Payment. Customer shall pay all invoices within 30 days of the invoice date. Customer shall make all payments hereunder in the currency stated in the Sales Order to an address or account as Accrete may specify in writing from time to time.
8.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Accrete 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;
(b) Customer shall reimburse Accrete for all costs incurred by Accrete in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(c ) if such failure continues for 30 days following written notice thereof, Accrete may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
8.5 No Deductions or Setoffs. All amounts payable to Accrete under this Agreement shall be paid by Customer to Accrete in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other any deduction or withholding of tax as may be required by applicable Law).
8.6 Fee Increases. Accrete may increase Fees after the Initial Term by providing written notice (email being sufficient) or issuing a new Sales Order to the Customer at least 90 calendar days prior to the commencement of any Renewal Term.
9. Confidentiality.
9.1 Confidential Information. In connection with this Agreement each party (as the “DisclosingParty”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”).Subject to Section 9.2, “ConfidentialInformation” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. The Receiving Party agrees to safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care.
9.2 Exclusions. The obligations in this Section do not apply to any information that (a) is or becomes generally available to the public through no fault of the Receiving Party, (b) was in the Receiving Party’s possession or known by it prior to receipt from Disclosing Party, (c ) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without use of Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information only to its employees, contractors, and agents who have a need to know and who are bound by confidentiality obligations at least as restrictive as those of this Agreement.The Receiving Party will be responsible for any breach of this Section by its employees, contractors, and agents. Recipient may disclose Confidential Information to the extent required by law, provided that the Receiving Party uses reasonable efforts to notify the Disclosing Party in advance.
9.3 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
10. Intellectual Property Rights.
10.1 Accrete Materials. All right, title, and interest in and to the Accrete Materials, including all Intellectual Property Rights therein, are and will remain with Accrete and, with respect to Third-Party Materials, the applicable third-party shall own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Accrete Materials except as expressly set forth inSection 2 or the applicable third-party license, in each case subject to Section 3. All other rights in and to the Accrete Materials are expressly reserved by Accrete. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Accrete an assignment of all right, title, and interest in and to the Performance Data, including all Intellectual Property Rights relating thereto.
10.2 Customer Data. As between Customer and Accrete, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3.
10.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary to Accrete and its Subcontractors to perform Accrete’s obligations hereunder.
11. Representations and Warranties.
11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2 Additional Accrete Representations, Warranties, and Covenants. Accrete represents, warrants, and covenants to Customer that (i)Accrete will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under thisAgreement, and (ii) Services do not infringe or otherwise violate any copyright, trade secret, or U.S. trademark of any third party and, to Accrete’s knowledge, when used for its intended use, do not infringe any patent of any third party.
11.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Accrete that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Accrete and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 11.1 AND 11.2, ALL SERVICES AND ACCRETE MATERIALS ARE PROVIDED “AS IS.” ACCRETE 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. WITHOUT LIMITING THE FOREGOING, ACCRETE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ACCRETE MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’SOR 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. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12. Indemnification.
12.1 Accrete Indemnification. Accrete will defend, indemnify and hold Customer and its successors, parents, subsidiaries, Affiliates, officers, directors, employees and agents harmless (together, “Customer Indemnitee”) from and against any and all losses, damages, costs, judgments, liabilities, and expenses(including reasonable attorneys’ fees court costs, and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties) (collectively, “Losses”) arising from any Action by a third party asserting that (i) Accrete failed to comply with Section 9 (Confidentiality), or (ii)Services, or the use thereof (as permitted under this Agreement) infringed or misappropriated any third party’s Intellectual Property Rights.
The foregoing obligation does not apply to the extent that the alleged Intellectual Property Rights infringement or misappropriation arises from:
(a) Third-Party Materials or Customer Data;
(b) access to or use of the Accrete Materials in combination with any hardware, system, software, network, or other materials or service not provided by Accrete or specified for Customer’s use in the Documentation;
(c ) modification of the Accrete Materials other than: (i) by or on behalf of Accrete; or (ii) with Accrete’s written approval in accordance withAccrete’s written specification; or
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Accrete.
12.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Accrete and its officers, directors, employees, agents, successors, and assigns (each, a “Accrete Indemnitee”) from and against any and all Losses incurred by such Accrete Indemnitee resulting from any Action by a third party that arise out of or result from, or are alleged to arise out of or result from (i) Customer Data, including any Processing of Customer Data by or on behalf of Accrete in accordance with this Agreement;(ii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Accrete’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Accrete; (iii) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (iv) gross negligence or willful misconduct by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or 12.2, as the case may be. The party seeking indemnification (the “Indemnitee”)shall cooperate with the other party (the “Indemnitor”)at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
12.4 Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ACCRETE’S SOLE LIABILITY AND OBLIGATION FOR THE BREACH OF SECTION 11.2(ii) AND ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND ACCRETE MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13. Limitations of Liability.
13.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT,MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED THE TOTAL CHARGES PAID BY CUSTOMER TO ACCRETE DURING THE MOST RECENT 12 MONTH PERIOD PRIOR TO THE LAST EVENT GIVING RISE TO LIABILITY.
13.2 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.
13.3 CAP ON MONETARY LIABILITY. THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13.1 WILL NOT APPLY TO ANY DIRECT LOSSES AS THE RESULT OF: (A)THE PARTY’S FAILURE TO COMPLY WITH SECTION 9 (CONFIDENTIALITY); (B)INDEMNIFICATION OBLIGATIONS HEREUNDER; OR (C) FRAUD OR WILLFUL MISCONDUCT.
14.Term and Termination.
14.1 Term. The initial term of this Agreement commences as of the date the Customer signs the Sales Order (“Effective Date”) and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect for 12 months from such date (the “Initial Term”).This Agreement will automatically renew unless either party gives the other party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). Except with respect to monthly plans, each Sales Order will renew automatically for successive one-year periods on the previously executed Sales Order terms and conditions, unless a party provides notice of non-renewal to the other party at least 60 days prior to expiration of the then-applicable subscription term.
14.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) 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: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
(b) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.
14.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Accrete shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information;
(c ) Customer shall immediately cease all use of any Services or Accrete Materials and (i) promptly return to Accrete, or at Accrete’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Accrete’s Confidential Information;
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information inits then-current state and solely to the extent and for so long as required by applicable Law; and (iv) Accrete may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 14.3(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement; and
(e) Accrete may disable all Customer and Authorized User access to the Accrete Materials.
14.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, 9, 11.4, 12, 13, 14.3, and 15.
15. Miscellaneous.
15.1 Relationship of the Parties.The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.2 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Accrete may, without Customer’s consent, include Customer’s name and other indicia in its lists of Accrete’s current or former customers ofAccrete in promotional and marketing materials.
15.3 Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party at the address set forth below and/or the applicable Sales Order (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.3). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; or (c ) when sent, if by email, unless sender receives within 24 hours of sending a system-generated message indicating the message has not been received.
Accrete, Inc.
17 State St., Ste. 3500
New York, NY 10004
Attn: Notice Administrator
Email: notice.administrator@accrete.ai
15.4 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.5 Entire Agreement. This Agreement, together with any Sales Orders and any other documents incorporated herein by reference, 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, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and the Sales Order, the Sales Order shall control.
15.6 Assignment. This Agreement will be binding on the Parties hereto and their respective successors and assigns. Neither Party may, or will have the power to, assign this Agreement without the prior written consent of the other Party, except that Accrete may assign its rights and obligations under this Agreement, in whole or in part, to any Affiliate or in the event of any merger, sale of all or substantially all of Accrete’s assets, or other similar transaction; provided that in no event will such assignment relieve Accrete of its obligations under this Agreement.
15.7 Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstance beyond such party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) outbreak or material escalation of war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or commencing after the date of this Agreement; (vi) national or regional emergency; and (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.8 No Third-Party Beneficiaries.This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.9 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.10 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall 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 hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties 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.
15.11 Governing Law. This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of law principles thereof. All actions arising out of or relating to this Agreement shall be heard and determined exclusively in any state or federal court located in New York, New York (or in any appellate courts thereof) (the “Specified Courts”). Each party hereto hereby (i) submits to the exclusive jurisdiction of any Specified Court for the purpose of any action arising out of or relating to this Agreement brought by any party hereto and (ii) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the action is brought in an inconvenient forum, that the venue of the action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court.
15.12 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.13 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. A signed copy of this Agreement delivered by email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Effective Date: July 3, 2024