Master Service Agreement
This MASTER SERVICE AGREEMENT (this “Agreement”) governs the use of our or Services. By using our Services you agree to the terms of this Agreement.
WHEREAS, the Company desires services as set forth in the Order Form (the “Services”) to be provided by the Vendor.
WHEREAS, the Vendor is in the business of providing such Services and desires to provide the Services to the Company.
WHEREAS, Vendor and Company desire to enter into this Agreement defining their respective rights and responsibilities and memorializing the terms and conditions pursuant to which Vendor will provide to Company the Services in exchange for a fee.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Vendor agree as follows:
Default Term & Renewal. Unless stated otherwise in the Order Form, the term of this Agreement (the “Term”) shall be two (2) years (24 months). Every year thereafter, this agreement will renew for an additional one (1) year (12 months) (a “Renewal Term”) unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the Term or the then current Renewal Term.
Incorporation of Order Form: All terms and provisions set forth in the Order Form are incorporated herein by reference with the same force and effect as though fully set forth herein.
Fees: The Company will pay all fees as set forth in the Order Form. Initial set-up fees are due upon the full execution of the Order Form (“Contract Date”). Service fees are payable upfront annually and for the initial year are due on the date that Vendor begins performing Services for Company (“Service Date”).
Expenses: The Company will reimburse Vendor for its reasonable out-of-pocket travel and related expenses incurred in performing the Services. Vendor shall notify the Company prior to incurring any such expense and shall comply with the Company’s travel and expense policy if made available to Vendor prior to the required travel.
Taxes: The Fees do not include any taxes, duties, or other amounts assessed or imposed by any government authority. The Company is solely responsible for paying all such taxes, duties, and other amounts, other than taxes imposed on the Vendor’s income. The Company will pay or reimburse Vendor for all such amounts upon demand or provide evidence of payment or exemption. If any deduction or withholding is required by law to be made by the Company, the amount of Fees shall be increased to the amount which, after making any deduction or withholding, leaves the amount equal to the Fees which would have been due if no deduction or withholding had been required, and the Company will not reduce the amount payable to Vendor on account thereof.
Right to Use: Vendor grants the Company a non-exclusive, non-transferrable and non-sublicensable license to the Company for use of the Services for the term of this Agreement. Company may use the Services in any legal manner, subject to the terms of this Agreement, including but not limited to money generating advertising.
Restrictions: Except as this Agreement expressly permits, the Company shall not:
License, sub-license, sell, re-sell, rent, lease, transfer, distribute, assign, publish, time share, or otherwise make any portion of the Services available for access by third parties unless expressly authorized by this Agreement;
Use the Services to develop or operate products or other services which perform the same or similar functions, or compete with Visiting Media;
Modify, correct, adapt, translate, enhance, or otherwise prepare any derivative works, changes and/or improvements to the Services;
Reverse engineer, decompile, disassemble, copy, or otherwise derive any source code, Confidential Information, or trade secrets from or about the Services;
Use the Services in a way that infringes, misappropriates, or otherwise violates the rights of the Vendor or any third parties;
Bypass or breach any security device or protection contained in the Services, or use the Services to bypass or breach any security or protection of third parties;
Use the Services in or in connection with any matter in which the use of the Services, or failure of the Services could result in physical personal or property damage;
Use the Services to create, use, send, store, or run any harmful computer code, viruses, files, scripts, agents, programs;
Grant or purport to grant any security interest to any third party in the Services;
Use the Services for any illegal, pornographic, or other illicit activity or purpose.
Services include all offerings of Vendor, including but not limited to, software, licensing and services performed by Vendor employees and contractors.
Scope of Services – The Services selected by Company, which will be provided to the Company by the Vendor as set forth in the Order Form.
The Company may integrate TrueTour platform and platform content via link/embed codes etc. into any other platform at any time
Support – The Vendor will provide the Company with support services with respect to the Services so long as Company has paid all outstanding fees at the time such support is required.
The Company acknowledges that this Agreement is a services agreement, and the Vendor will not be delivering copies of software to the Company as part of the Services. In case of a self-hosted deployment, the Vendor will provide the Company the capability to host the content.
Access: The Company shall be solely responsible for the acts and omissions of its users. The Vendor shall not be liable for any loss of data or functionality caused directly or indirectly by any of Company’s users.
Company Assistance: The Company shall provide commercially reasonable information and assistance to the Vendor to enable the Vendor to deliver the Services. Upon request from the Vendor, the Company shall promptly deliver the requested assistance, content, or information. The Company acknowledges that Vendor’s ability to deliver the Services in the manner provided in this Agreement depend upon the accuracy of such information and assistance.
Changes to this Agreement:
The Vendor, at its sole discretion, may amend the terms of this Agreement at any time without the consent of Company by posting the updated Agreement on its website: URL. The terms of the Agreement as posted shall apply to any relevant issue that occurs on or after such posting.
If either party wishes to change the Scope of Services provided under the Order Form, the party must provide notice as required in the Notice clause of this Agreement. The Vendor, within a reasonable time of receiving such notice, shall provide the Company with a written estimate of the time required to implement the requested change, any changes in fees to the Company, and any other expected impact(s) on the terms of the Agreement.
Changes to the Services: The Vendor, at its sole discretion, may add or remove features, amend, backup, correct, improve maintain, redesign, repair, upgrade or otherwise modify the Services from time to time, which may result in disruption or reduced usefulness of the Services.
Discontinuation of Services: The Company acknowledges that Vendor reserves the right to suspend and/or discontinue offering the Service at the conclusion of the Company’s then current Term or for the Company’s failure to perform any obligations under this Agreement, including but not limited to the obligation to timely make payment of any undisputed amounts due to Vendor under this Agreement. Suspension of the Services does not release the Company from any obligations, including payment, under this Agreement. Vendor reserves the right to suspend delivery of the Services if Vendor reasonably concludes that the Company’s use of the Services is causing or will, or is likely to cause harm to Vendor or others. In the event that Vendor must suspend delivery of the Services, Vendor shall immediately notify the Company of the suspension and the parties shall diligently try to resolve the issue. The Company agrees that Vendor will not be liable to the Company or any third party for any modification or discontinuance of the Service.
Termination: Notwithstanding the foregoing, without affecting any other right or remedy available, either party may terminate this Agreement with immediate effect by giving notice to the other party if:
The other party commits a material breach of any term of this Agreement which is irremediable, or the breaching party fails to remedy the breach within thirty (30) days of the notice of such breach; or
The other party takes any step or action in connection with its entering administration, provisional liquidation, or any composition or arrangement with creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of a court), having a receiver appointed to any of its assets or ceasing to carry on business, or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or it ceases or threatens to cease to carry on business.
Effect of Termination:
Upon termination or expiration of this Agreement, Vendor shall immediately cease providing the Services, and all use rights granted under this Agreement shall terminate unless provided otherwise.
If Vendor terminates this Agreement due to breach by the Company, then Company shall immediately pay to Vendor all amounts then due and all amounts to become due during the term of this Agreement, but for the termination. If Company terminates this Agreement due to a breach by Vendor, Vendor shall immediately repay any amounts paid for unperformed Services scheduled to be delivered or performed after the termination date.
Upon termination of this Agreement, the Company shall immediately return all Vendor’s Confidential Information in the Company’s possession.
Company data processed or contained in the Services (the “Company Data”) is and will remain owned by the Company. The Company hereby irrevocably grants the Vendor all such rights and permissions in or relating to Customer Data as are necessary or useful to Vendor to provide the Services, to enforce this Agreement and exercise Vendor’s rights and perform Vendor’s obligations hereunder.
The Vendor owns all rights, title, and interest in, and intellectual property rights in and to the Services, and any improvements, modifications, design contributions, or derivative works, and any knowledge or process related to them or provided under this Agreement.
In the event the Company makes improvements, modifications, design contributions, or derivative works in violation of license, Company hereby assigns all right, title, and interest in and to the same without further compensation. Company shall require all of its authorized users to assign any right, title, and interest each may have in and to any improvements, modifications, design contributions, or derivative works to Vendor in order for Company to fully effectuate this section.
To the extent the Company provides any feedback, suggestions, or improvements about or to the Services (“Feedback”), the Company hereby assigns all right, title, and interest in and to the Feedback to Vendor without further compensation .
Intellectual Property Rights: The Company acknowledges and agrees that:
The Services, including the Vendor’s software and any third-party software used in connection with the Services contain proprietary and confidential information, including but not limited to names, logos, marks, product names, or service names, that is protected by applicable intellectual property and other laws, including but not limited to copyrights, trademarks, patents, or other laws;
Other than licensed software, Vendor is the sole owner of all right, title, and interest in and to the Services, including all intellectual property rights related thereto, subject only to the license granted to the Company under this Agreement;
The Company will take all reasonable measures to safeguard the intellectual property of Vendor in the Services from infringement, misappropriation, theft, misuse, or unauthorized use or access;
The Company will notify the Vendor if the Company becomes aware of any such infringement, misappropriation, theft, misuse, or authorized use or access of the Services whether by itself or third parties;
The Company will reasonably cooperate in actions to prevent or abate any actual or potential infringement, misappropriation, theft, misuse, or authorized use or access to the Services against third parties, including making available any requested documents, information, or records for discovery or trial.
The Company is responsible for the accuracy, quality, and legality of any data or information entered into or uploaded for the purpose of the Services.
The Company is solely responsible for determining the suitability of the Services for the Company’s business, and for compliance with any data privacy or protection laws and regulations applicable to the Company.
Vendor will implement and maintain reasonable and appropriate safeguards designed to protect the confidentiality, integrity, and availability of Company Data.
Late Payments: If the Company fails to make any payment to Vendor as provided under the Order Form or pursuant to this Agreement, Vendor shall provide written notice to the Company of such delinquency. If the Company fails to make payment in full within two (2) weeks (14 days) of the notice, the Vendor may undertake all available remedies, including but not limited to:
Charge interest on the past due amount at the maximum permitted statutory rate;
Charge any amounts to the Company for reasonable costs and fees, including but not limited to attorney’s fees, incurred by the Vendor related to the collection of any delinquent amounts;
Cease providing the Services or withhold access to, disable, or otherwise prevent the Company’s access to the Services.
Representations and Warranties:
Insurance. Vendor represents that, at its sole cost and expense, it procured and will maintain in full force and effect commercial and general liability insurance in amounts not less than $1,000,000 per occurrence for commercial and $1,000,000 each accident for general liability. Upon request by the Company, Vendor shall deliver to the Company copies of the certificates evidencing the existence and amounts of such insurance.
Mutual Representations: Each party represents, warrants, and covenants to the other that:
It is duly organized, validly existing, and in good standing under the laws of the jurisdiction where it is organized;
It has the full right, power, and authority to perform its obligations and grant the rights, licenses, authorizations it grants and is required to grant under this Agreement;
The execution of this agreement by the representative whose signature is set forth at the end of this Agreement has been duly authorized to bind the party to this Agreement;
When executed and delivered to each party, the Agreement will constitute a legal, valid, and binding obligation, enforceable on each party in accordance with its terms.
Disclaimer of Warranties: IN NO EVENT WILL VENDOR OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
The Company will indemnify, defend, and hold harmless the Vendor, its affiliates, employees, directors, agents, representative, successors and assigns (the “Vendor’s Indemnified Parties”) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) incurred by the Vendor Indemnified parties as a result of any claim or action by a third party:
that any intellectual property rights or rights of any person, or any law is or will be infringed, misappropriated, or otherwise violated by the Company data, including its use in the Services;
any breach by the Company of any term or obligation under this Agreement;
relating to negligence, abuse, misapplication, misuse, recklessness, willful misconduct, or other unlawful act or omission by or on behalf of the Company with respect to the Services or in connection with this Agreement;
relating to the use of the Services by or on behalf of the Company that is outside the purpose, scope, or manner authorized by this Agreement, or in any manner contrary to the Vendor’s instructions.
The Vendor Indemnified Party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such Vendor Indemnified Party’s failure to provide notification shall not affect the Company’s indemnification obligations except to the extent that the failure to notify delays or prejudices the Company’s ability to defend the applicable claim. The Company shall conduct the defense and shall have control of the litigation, and the Company shall cooperate in defending against the claim. The Vendor Indemnified Party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. The Company shall not make any settlement of the claim that results in any liability or imposes any obligation on the Vendor Indemnified Party without the prior written consent of the Vendor Indemnified Party. If the Company fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the Vendor Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the Company, and the Company shall promptly reimburse the Vendor Indemnified Party for all such costs and expenses.
Limitations on Liability:
Indirect Losses: To the fullest extent permitted by law and in addition to the disclaimer of Section 21, each party shall not be liable for any loss of product, loss of revenue, loss of profit, loss of savings, loss of sales, loss of or damage to reputation, whether actual or anticipated, or any damage, cost, or expense or other claims for consequential compensation, incurred by or awarded against the other party arising directly or indirectly under or in connection with this Agreement or the performance or non-performance of this Agreement, and whether arising under any indemnity statute, in tort or any other basis in law or equity, except for (i) interest due for late payments; (ii) personal injury or property damage caused by negligence; (iii) losses caused by fraud or fraudulent misrepresentation; or (iv) indemnification.
Monetary Cap: In no event will the aggregate liability of Vendor arising out of this Agreement for any reason, including but not limited to breach of contract, tort, strict liability, or any other legal or equitable theory, exceed the total amounts paid and amounts accrued but not yet paid to Vendor under this agreement in the one (1) year preceding the event giving rise to the claim. To the extent that Company has multiple users of the Service (for example, multiple hotels in one Order Form with each having its own dedicated Scope of Service) the limitation of liability shall be the fees associated with the property involved with the claim.
Statute of Limitations: No action or cause of action which arose out of an event or occurrence which occurred more than two (2) years prior to the commencement of the action may be asserted by the Company.
Disputed Invoices: The Company may reasonably dispute any invoices without incurring late payment fees if it provides notice of such dispute within two (2) weeks (14 days) of the date of the invoice specifying the amount in dispute and the reason for the dispute. The Company agrees to pay all undisputed amounts, and to work diligently with Vendor to resolve any such disputes.
Other Disputes: The party asserting any dispute arising under or in connection with this Agreement or the Services shall provide written notice providing the basis for the dispute and the proposed resolution of the dispute (“Notice of Dispute”). The Company and Vendor agree to work diligently, reasonably, and in good faith to resolve all disputes.
Arbitration: If no resolution of a dispute is reached, the dispute shall be decided by a single arbitrator using the Arbitration Services of Portland
Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without reference to the principles of conflict of laws thereof. Each party hereby consents to State of Oregon, County of Multnomah as the proper and exclusive venue for any disputes arising out of or relating to this Agreement.
Equitable Relief: Company acknowledges and agrees that a breach or threatened breach by the Company of its obligations under this Agreement would cause the Vendor irreparable harm for which monetary damages would not be an adequate remedy, and that, in the event of such a breach or threatened breach, the Vendor will be entitled to, in addition to any and all other remedies that may be available, equitable relief, including without limitation any injunctive relief, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.
No Authority to Bind Company. All Services provided by Vendor shall be performed by Vendor directly and independently as an independent contractor and not as an agent, employee or representative of the Company. This Agreement is not intended to and does not constitute, create or otherwise give rise to a joint venture, partnership or other type of business association or organization of any kind by or between the Company and Vendor. Specifically, and without limitation, Vendor has no power or authority to contract for, or bind, the Company in any manner.
No Assignment: Neither party may assign this Agreement or any right under this Agreement without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party, whether by merger, asset sale, or otherwise. This Agreement shall be binding upon and inure the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this Agreement, provided however, that such party shall not be relieved of any obligation under this Agreement.
Early Termination. Company understands that if this agreement is terminated the amounts due for the entire remaining term of service on this agreement will apply and be due in full at the time of termination.
Visual Technology Conversion upon Termination Company understands that all visual technology platform content is proprietary to the Vendor software. If Company terminates the agreement, Vendor, upon request, will convert the data to Google’s open-source platform for a fee of $1000.
Vendor hereby agrees that during the Term and indefinitely thereafter, Vendor shall not directly or indirectly disclose, publish or use for the benefit of Vendor or any party, except in carrying out its duties for the Company, any of the Company’s Confidential Information (as defined below), without the prior written consent of the Company.
The Company agrees that at all times and notwithstanding any termination or expiration of this Agreement, it will hold in strict confidence and not disclose Vendor’s Confidential Information to any third party, except as approved in writing by the Vendor. If any loss or unauthorized disclosure of any Confidential Information occurs, the party which caused the loss or allowed the unauthorized disclosure shall immediately notify the other party.
For the purposes of this Agreement, “Confidential Information” shall mean all non-public information respecting the business, including, without limitation, its products, research and development, files, ideas, processes, customer lists, financial information, sales and merchandising information, intellectual property, software, trademarks, marketing plans and strategies.
Confidential Information excludes information that is (a) known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party; (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party; or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party.
Confidential Information may be disclosed to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
Notices. All notices or communications, including emails, hereunder shall be made to each party in accordance with the contact information set forth in the Order Form or as other such address as the party may designate from time to time in accordance with this Section. Notices sent in accordance with this section are deemed effective when received/sent, or on the following business day if sent after 5 pm.
Non-Exclusive Service: The Company acknowledges that the Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Vendor’s ability to provide the Services or any other technology, including any features or functionality initially developed specifically for the Company, to other parties.
No Third-Party Beneficiaries: This Agreement is an arrangement between the Vendor and the Company, and confers no rights upon either party’s employee’s agents, contractors, partners, customers, or other third party, whether person or entity.
Entire Agreement. This Agreement and the Order Form contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, discussions, negotiations, and undertakings, whether written or oral, between the parties with respect thereto. Any conflict between the terms of this Agreement and the terms of the Order Form shall be governed by the terms of the Order Form.
Amendments and Modifications. No modifications or alterations of this Agreement shall be effective unless made in writing and signed by both parties.
Severability. In the event any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall remain unaffected.
Force Majeure: The Vendor shall use all reasonable efforts to perform its obligations under this Agreement, but shall not be liable for any failure or delay in performing any obligation under this Agreement due to causes beyond its reasonable control including, but not limited to, acts of God, accidents, riots, war, terrorist acts, epidemics, pandemics, natural disasters, civil or military disturbances, utilities, communications or computer services interruptions or disruption, strikes, or work stoppages. Furthermore, should one of the above events occur that impact the ability of the Company to utilize the Services, the Company is excused from obligations for the duration of such event and for such a time thereafter as is reasonable to enable parties to resume performance, provided however, that in no event shall such time extend for a period of longer than ninety (90) days.
Counterparts: This Agreement may be executed in any number of counterparts, each of which may be deemed an original and all of which together shall constitute one and the same instrument. Electronic and facsimile copies hereof and electronic or facsimile signatures hereon shall have the same force and effect as originals.