Master Services Agreement (2017-2019)
This Master Services Agreement (“Agreement”) is made between Gryphon Networks Corp. (“Gryphon”), a Delaware corporation with its principal offices at 711 Atlantic Avenue, 6th Floor, Boston, MA 02111 (“Gryphon”) and the customer identified within a Service Attachment (“Customer”) executed by both Customer and Gryphon. Customer and Gryphon may execute Service Attachments referencing this Agreement, and each Service Attachment shall fully incorporate the terms, conditions and descriptions contained within this Agreement.
Whereas, Gryphon provides services to businesses to aid their compliance with various state and federal statutes and regulations governing communications with their customers and prospective customers, maximize their universe of permitted communications, and more effectively manage their marketing activity, and Customer desires to obtain one or more of such services;
Now, therefore, in consideration of the mutual obligations contained in this Agreement, the Gryphon and Customer (together the “Parties” and each individually a “Party”) agree as follows:
1. SERVICES
1.1
Gryphon will provide and Customer shall have access to and may use the Service(s) described in each Service Attachment executed by Customer and Gryphon pursuant to this Agreement as ordered by Customer. Service Attachments may reference a Service described within Schedule A and/or one or more other Gryphon Service. Each Service Attachment shall fully incorporate all terms and conditions contained within this Agreement. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any Service Attachment, the Service Attachment shall take precedence. Gryphon reserves the right to change or modify the terms, conditions and descriptions within this Master Services Agreement. Any such changes or modifications shall take effect thirty (30) days after they are posted to http://www.gryphonnetworks.com/legal/msa.html.
1.2
Customer may utilize each Service solely for its own internal business purposes. Customer shall designate Authorized Users of the Services, who shall be employees or other representatives of the Customer and only Authorized Users may use the Services. If an Authorized User is not an employee of Customer, Customer shall execute and keep in effect agreements with such person(s) to bind them to confidentiality and use terms no less restrictive than contained in this Agreement.
1.3
Customer shall not directly or indirectly (i) permit any third party except Authorized Users to use or have access to the Services; (ii) use the Services for the benefit of any third party; (iii) use the Services or any information in or from the Services to create any database or service that is similar to or competes with the Services; or, (iv) copy, distribute, modify, create derivative works of or translate any data or materials, including the Services, provided by Gryphon pursuant to this Agreement. This Agreement does not convey to Customer any ownership rights in the Services, any information or materials provided by Gryphon pursuant to this Agreement, or any intellectual property rights in the Services, which shall remain with Gryphon.
2. FEES AND PAYMENT
2.1
In consideration of Gryphon’s delivery of the Services, Customer shall pay Gryphon the fees specified in each respective Service Attachment hereto, without reservation or set-off. All fees are nonrefundable and are payable in U.S. currency. Customer, not Gryphon, shall be responsible for all state taxes.
2.2
Gryphon shall invoice Customer as specified in the Service Attachment(s) hereto. All fees are due within thirty days of the date of invoice. Should Customer not pay any invoice when due, Gryphon may, at its discretion and in addition to other available remedies, suspend all Services until Customer has paid all outstanding amounts due and/or charge interest on all overdue amounts, from the due date, at three (3) percent or the maximum rate permitted by law.
2.3
Customer shall be responsible for any and all fees and charges related to Customer’s access to the Internet, any telecommunications service, any customer relationship management service (Salesforce.com or Oracle), or any other service or connection used to access or utilize the Gryphon Services. Gryphon shall not be responsible for any fees or charges associated with such access by Customer, except as otherwise expressly set forth within a Service Attachment.
3. WARRANTY
3.1
Gryphon warrants to Customer that during the Service Term and any Renewal Terms each Service provided by Gryphon shall substantially conform to and perform the Service functions identified within the Service Attachment.
3.2
The Warranty in this Section 3 shall not apply and Gryphon shall have no obligation to the extent that any deficiency or failure of a Service is caused by (i) improper use or operation of the Service by Customer, (ii) failure by Customer to properly obtain or subscribe to the appropriate Do Not Call lists, databases or similar data, as required in Section 4, (iii) the inaccuracy or insufficiency of any information or instructions provided by Customer, (iv) Customer’s refusal or delay to implement upgrades to the Service as provided by Gryphon, (v) failure or malfunction of any electronic, technology or telecommunications equipment or resource not under Gryphon’s sole control, or (vi) Customer requested modification, change to or alteration of any Gryphon Service default configuration, setting process or functionality.
3.3
If Customer uses Internet services, a customer relationship management service (Salesforce.com or Oracle) or telecommunications services to access or communicate with a Service, the warranty in this Section 3 shall not apply and Gryphon shall have no obligation to the extent that any deficiency or failure of the Service results from: (i) any interruption, discontinuation, malfunction, defect, change, disruption, termination, cancellation or other issue related to such third party service that is not attributable to the Service, or (ii) Customer’s improper or unauthorized use or operation of such third party service. Customer shall provide Gryphon with advance notice of any upcoming change related to such third party service. Customer acknowledges that any third party restriction and limitation governing Customer’s access to and use of such third party services shall also apply to Customer’s use of any Service accessed using such third party service. Gryphon has no control or responsibility over any communications link or telecommunications equipment between Customer and Gryphon, including, but not limited to, the Internet and any public telecommunications network.
3.4
Customer understands and acknowledges Gryphon obtains or may obtain do-not-call, do-not-email, do-not-text, do-not-mail, do-not-fax, wireless telephone number, and business telephone number data and lists from government bodies, private sources and Customer. Gryphon does not own or control the data and information it is provided by such sources and bears no responsibility for any deficiencies or inaccuracies contained in such data at the time it is provided to Gryphon. Service output reflects such do-not-contact data, Customer data and legal requirements existing at the time of Service utilization by Customer. Service output used at a later time or date may not reflect do-not-contact data or legal requirements at such later time or date.
3.5
EXCEPT AS EXPRESSLY SET FORTH HEREIN, GRYPHON MAKES NO WARRANTIES REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, OR THE RESULTS TO BE ACHIEVED OR EXPECTED THEREFROM. GRYPHON EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY SERVICES PROVIDED HEREUNDER.
4. DO NOT CONTACT DATA
4.1
Customer will at all times remain in compliance with laws requiring Customer to register for, acquire or purchase federal, state and private do-not-call or other do-not-contact lists or data. Customer shall provide Gryphon its federally assigned Subscription Account Number (SAN) associated with Customer’s subscription to the U.S. National Do Not Call Registry and, if applicable, the Canadian National Do Not Call List. Customer shall also provide Gryphon with confirmation information associated with Customer’s purchase of state do-not-call lists and any similar privately maintained lists upon request. Customer and Authorized Users shall not utilize Gryphon’s Services to attempt to contact a telephone number associated with any U.S. or foreign jurisdiction for which Customer has not purchased private, state or National Do Not Call Registry do-not-call or other do-not-contact data.
4.2
Customer and Authorized Users shall not use Gryphon Services to: (i) place calls to jurisdictions outside the U.S. unless otherwise specifically set forth within a Service Attachment, (ii) transmit false, defective or misleading caller ID information, or (iii) place any prerecorded or automated voice telephone calls.
4.3
Customer will defend, indemnify and hold Gryphon, its affiliates, directors, employees and agents and their successors and assigns harmless from any liability, claim, demand, suit or action to the extent that it is based on Customer’s failure to fulfill its obligations under this Section 4.
5. CONFIDENTIALITY
5.1
“Confidential Information” means (a) any information disclosed by either Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, data tags and content, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation (collectively, the “Disclosed Materials”) or should reasonably be understood by the receiving Party as being
confidential and (b) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the Disclosed Materials. Confidential Information that is disclosed orally shall be Confidential Information if it is (i) designated as such at the time of disclosure or within a reasonable time after disclosure; or (ii) should be reasonably understood to be Confidential Information. Information may also include information of a third party that is in the possession of one of the Parties and is disclosed to the other Party under this Agreement. Confidential Information shall not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving Party from a third party lawfully in possession of such information and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession. Neither Party shall provide any social security number, personal health information, credit card information, account number, member identification number or any other similar sensitive information to the other Party without both Parties’ prior written agreement.
5.2
Each Party agrees not to use any Confidential Information of the other Party for any purpose except as reasonably necessary for its performance or enforcement of its rights under this Agreement. Each Party agrees not to disclose any Confidential Information of the other Party, except that, subject to Section 5.3 below, a receiving Party may disclose the other Party’s Confidential Information to its employees and agents and the employees and agents of its Affiliates and their respective officers, managers, directors, and advisors (including, without limitation, attorneys, accountants, underwriters, lenders, and consultants), and providers or prospective providers of financing and their advisors (“Representatives”) provided such Representatives are required to have such information as reasonably necessary for the Party’s performance or enforcement of its rights under this Agreement.
5.3
If a receiving Party or its Representative is required by law to make any disclosure that is prohibited or otherwise constrained by this Agreement, the receiving Party will provide the disclosing Party with prompt written notice of such requirement (to the extent permitted by applicable law) so that the disclosing Party may seek a protective order or other appropriate relief. Subject to the foregoing sentence, such receiving Party may furnish that portion (and only that portion) of the Confidential Information that the receiving Party is legally compelled or is otherwise legally required to disclose; provided, however, that the receiving Party (a) provides such assistance as the disclosing party may reasonably request in obtaining such order or other relief, (b) uses reasonable efforts to ensure that all Confidential Information that is so disclosed will be accorded confidential treatment, and (c) furnishes only that portion of the Confidential Information that is legally required. Each party acknowledges the disclosing Party’s Confidential Information is valuable both in whole and its individual parts, and each Party, as the receiving Party agrees that neither the receiving party, nor its Representatives will modify, reverse engineer, create other works from, disassemble or decompile any prototypes, software or other tangible objects that embody the other Party’s Confidential Information and that are provided to the party under this Agreement.
5.4
Each Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care (including, without limitation, all precautions the receiving party employs with respect to its confidential materials). Each Party shall ensure that its Representatives who have access to the other party’s Confidential Information have signed a non-use and non-disclosure agreement in content similar to the provisions of this Agreement or are otherwise legally obligated not to disclose such Confidential Information, prior to any disclosure of Confidential Information to such Representative. Each Party shall reproduce the other Party’s proprietary rights notices on any copies, in the same manner in which such notices were set forth in or on the original. A Party receiving Confidential Information shall promptly notify the party disclosing such Confidential Information of any use or disclosure of such Confidential Information in violation of this Agreement of which the receiving party becomes aware. Each Party shall be directly liable for its Representatives’ breaches of this Agreement.
5.5
All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either Party to the other Party, and all copies or extracts thereof that are in the possession or control of the other Party of its Representatives, shall be and remain the property of the disclosing Party and shall promptly be destroyed or returned to the disclosing Party upon the disclosing Party’s written request. Notwithstanding the foregoing, the receiving Party may retain Confidential Information disclosed hereunder to the extent required to provide evidence of compliance with legally imposed requirements, and a receiving Party is not obligated to remove the Confidential Information from its backed up electronic records outside of its normally scheduled retention policies, provided all restrictions on disclosure and use of Confidential Information set forth within this Agreement shall continue to apply to any retained Confidential Information.
5.6
Each Party’s obligations of confidentiality with respect to the other Party’s Confidential Information will continue for a period of three (3) years following the expiration or termination of this Agreement and each Service Attachment hereto; provided, however, all obligations with respect to Confidential Information that constitutes a trade secret shall remain in effect until such time as the information is no longer a trade secret under applicable law.
5.7
Each Party understands and agrees that its breach or threatened breach of this Agreement will cause irreparable injury to the other Party and that money damages will not provide an adequate remedy for such breach or threatened breach, and both Parties hereby agree that, in the event of such a breach or threatened breach, the non-breaching Party will also be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including injunctive relief and specific performance. The Parties’ rights under this Agreement are cumulative, and a Party’s exercise of one right shall not waive the Party’s right to assert any other legal remedy.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR SAVINGS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY; PROVIDED, HOWEVER, THE LIMITATIONS ON SUCH DAMAGES SHALL NOT APPLY IN THE CASE OF A PARTY’S INDEMNITY OBLIGATIONS OR ABREACH OF THE CONFIDENTIALITY OR INTELLECTUAL PROPERTY RESTRICTIONS SET FORTH WITHIN THIS AGREEMENT. EXCEPT AS LIMITED BY APPLICABLE LAW EACH PARTY’S LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO GRYPHON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.
7. TERM AND TERMINATION
7.1
This Master Services Agreement shall commence on the Effective Date set forth in the first paragraph and shall continue in effect unless and until terminated by either Party as stated below, or automatically in the event there is no Service Attachment in effect for a continuous twelve month period. The Term for each Service Attachment shall be as specified within the applicable Service Attachment. Such Term for each Service Attachment shall automatically renew for consecutive renewal periods equal to the Term (a “Renewal Term”) upon expiration of the Term or any prior Renewal Term unless either Party provides the other Party written notice that it wishes to terminate the Service Attachment at least ninety (90) days prior to the expiration of the Term or Renewal Term. Termination of this Master Service Agreement shall not terminate any Service Attachment hereto, each of which shall constitute a separate agreement terminable in accordance with the terms therein and this Section 7 and shall continue to incorporate the terms of this Master Service Agreement.
7.2
Either Party may terminate this Agreement at any time upon thirty (30) days written notice to the other Party in the event that the other Party shall have breached any of its material obligations under this Agreement and shall not have cured such default prior to the expiration of the thirty (30) day notice period.
8. INDEMNITY
8.1
Gryphon shall indemnify and defend Customer, its affiliates, employees, officers and agents from any third party claims, fines, penalties or judgments (“Claims) to the extent caused by a breach of warranty during the Services Term and any Renewal Term as set forth within Section 3.
8.2
Gryphon shall indemnify, and defend Customer from and against any Claims alleging that the Services or their use by Customer, directly infringes or misappropriates any United States patent, trademark, copyright, or trade secret right of any third party. Customer shall permit Gryphon to modify any affected Services to avoid infringement, or to procure for Customer the right to continue to use such Services. Alternatively Gryphon may require Customer to cease using the affected Services and Gryphon’ sole liability in regard to such return shall be to refund the access and implementation fees paid by Customer for the remaining Service term. Gryphon shall have no obligation with respect to claims, actions, or demands to the extent they are based upon (i) the combination of Services with any services or items not supplied by Gryphon, (ii) any Customer breach of this Agreement or modification, alteration or improper use of the Services by Customer, (iii) any intellectual property right in which Customer or any affiliate of Customer has a proprietary interest. This Section states the entire liability of Gryphon with respect to indemnification or liability for infringement of patents, copyrights or other proprietary rights by the Services or any part thereof or by their use.
8.3
Either Party must notify the other immediately upon receiving notice of or learning of a Claim and in no event later than twenty (20) days thereafter. Indemnitor shall choose legal counsel to defend such Claim and make any decisions regarding its defense, provided that Indemnitor may not settle a claim regarding Indemnitee without Indemnitee’s prior consent which shall not be unreasonably withheld. Indemnitee shall have the right to participate in the defense of any such Claim, at its own expense, through counsel of its own selection.
9. MISCELLANEOUS
9.1
Customer is an independent contractor under this Agreement. Nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties, or to grant either Party the authority to enter into any agreement on behalf of the other Party. Gryphon shall not reimburse Customer for any expenses or costs incurred by Customer in the performance of its responsibilities under this Agreement. Neither Party may assign this Agreement, or its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
9.2
Gryphon may use Customer’s name and logo in Gryphon marketing materials such as sales presentations, website references, informational presentations, seminars and trade shows.
9.3
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (excluding its choice of law rules.) The exclusive jurisdiction for any legal proceeding regarding this Agreement shall be in the state or federal courts located in the Commonwealth of Massachusetts and each Party hereto expressly submits to the jurisdiction of said courts and hereby waives any objection to the venue in such courts.
9.4
Neither Party shall, by lapse of time or inaction, be deemed to waive any breach by the other Party of this Agreement. No waiver shall be effective unless in writing and signed by the Party against which enforcement of such waiver is sought. The waiver by either Party of a particular breach of this Agreement by the other Party shall not be a continuing waiver of such breach, or of other breaches of this Agreement. Neither Party shall be in default if failure to perform any obligation hereunder is caused by conditions beyond that Party’s control, including acts of God, civil commotion, strikes, labor disputes, and governmental demands or requirements. If any provision of this Agreement shall be held unenforceable or illegal, the validity of the remaining portions or provisions hereof shall not be affected thereby.
9.5
Unless otherwise specifically provided herein, all notices and other communications shall be sent postage prepaid either by U.S. registered mail, return receipt requested, or by overnight courier service and addressed to the Party at the notice address set forth within a Service Attachment, or an updated notice address provided to the other Party in writing. Notices shall be deemed received when such delivery is made or attempted.
9.6
In the event of any conflict or inconsistency between this Master Service Agreement and any Service Attachment executed hereunder, the terms within the Service Attachment shall control.
9.7
Any provision of this Agreement which contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality, and limitation of liability provisions) shall survive termination or expiration of this Agreement and continue in full force and effect.
9.8
No ISG/UCITA. The convention on the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. The Parties hereby agree that their respective rights and obligations hereunder shall be solely and exclusively as set forth herein and that UCITA, whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, shall not apply to this Agreement and is hereby disclaimed.
9.9
No Third-Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person or entity who is not a Party to this Agreement or a Service Attachment hereto, nor shall anything in this Agreement be construed as creating an obligation by either Party to any non-party to this Agreement.
9.10
This Agreement, along with Service Attachments and any exhibits, constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, proposals, representations, understandings, and negotiations, whether written or oral, between the Parties respecting the subject matter hereof. No amendments or modifications, including shrink wrap, purchase order, click through or similar terms, shall be binding upon either Party unless made in writing and signed by both Parties.
9.11
Signed facsimile or electronic copies of this Agreement and any Service Attachments shall legally bind the Parties to the same extent as original documents. This Agreement and Service Attachments may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same instrument.
9.12
When executed by both Parties each Service Attachment shall constitute a separate agreement and, except for any provisions herein which are specifically excluded or modified in such Service Attachment, each Service Attachment shall incorporate the terms and conditions of this Agreement.