THIS MASTER SERVICES AGREEMENT (this "Agreement") governs the acquisition and use of Subscription Services by Customer (defined below). By executing an Order Form (defined below) that references this Agreement, you, as or on behalf of Customer, agree to this Agreement. By executing an Order Form on behalf of a company, corporation or other legal entity ("Customer"), you represent that you have the authority to bind that legal entity to this Agreement. The effective date of this Agreement ("Effective Date") is the effective date of the first Order Form that Customer executes with ORM Technologies, LLC, a Delaware limited liability company ("ORM"). ORM and Customer are each a "Party" hereto, and collectively, they are the "Parties" hereto.
Recitals
A. ORM will provide and Customer agrees to use certain Subscription Services during the Term of this Agreement.
B. The Parties desire to set forth in writing the terms and conditions of the Subscription Services as described in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, hereby agree as follows:
Customer agrees to the privacy policies incorporated herein by reference available at the following url: https://orm-tech.com/company/legal/privacy-policy/.
1. Definitions.
Capitalized terms used but not otherwise defined in this Agreement have the following meanings:
(a) "Affiliate" means any corporation or other entity that directly or indirectly controls, is controlled by, or is under the common control with a Party, where "control" means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, whether through ownership of voting securities or equity interests, through common directors, trustees or officers, by contract or otherwise.
(b) "Confidential Information" has the meaning as set forth in Section 5.
(c) "Customer" means the non-ORM party to the Agreement that has access to Subscription Services.
(d) "Customer Data" means any data, information or material originated by Customer that Customer submits to ORM through its use of Services or provides to ORM while using the Services.
(e) "Customer Materials" means all information, methodologies, data, ideas, concepts, materials, templates, know-how, techniques, documentation, software and applications that Customer possesses prior to the commencement of ORM's Services or which it develops independently of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property (including by ORM).
(f) "Deliverables" means any copyrightable works, products, discoveries, developments, designs, work-product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by ORM that result from Professional Services and are provided to Customer hereunder pursuant to the applicable Order Form or Statement of Work.
(g) "Disclosing Party" has the meaning as set forth in Section 5.
(h) "Go Live Date" means the date on which the Subscription Services under an Order Form are made available by ORM for use by Customer and its Users in accordance with this Agreement.
(i) "Initial Term" has the meaning as set forth in Section 4.
(j) "Intellectual Property" shall mean all: (i) U.S. and foreign issued patents and pending patent applications, patent disclosures, and any and all provisional applications, divisions, continuations, continuations-in-part, reissues, reexaminations, requests for continued examination and extension thereof, any counterparts claiming priority therefrom, design patents, semiconductor mask work rights, utility models, patents of importation/confirmation, certificates of invention and like statutory rights; (ii) proprietary ideas, technology, inventions (whether or not patentable), innovations, discoveries, know-how, processes, trade secrets, methods, compositions, formulae, algorithms, procedures, protocols, plans, products, prototypes, models, techniques, confidential information, documentation, results of experimentation and testing, information, data and databases, source code and object code, whether embodied in software, firmware or otherwise, developments, works of authorship, performances, user interfaces and designs; (iii) U.S. and foreign registered and unregistered copyrights (including those in computer software and databases), rights of publicity, rights of privacy, moral rights, and all registrations and applications to register the same; (iv) U.S. and foreign registered and unregistered trademarks, trade dress, service marks, design marks, logos, trade names, corporate names and all registrations and applications to register the same, together with the goodwill associated therewith, and in each of (i) through (iv) including the right to sue for past infringement thereof.
(k) "Malicious Code" means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by a Subscription Services or ORM's computer systems in any manner.
(l) "Order Form" means any order form that may be entered into from time to time between Customer and ORM, and all amendments, modifications and supplements thereto, all of which are incorporated herein by this reference.
(m) "ORM Technology" means: (i) the Software, technology, methodologies and intellectual property existing as of the Effective Date or otherwise arising outside of this Agreement that is owned or controlled by ORM; (ii) all derivatives, improvements, enhancements or extensions of any of the foregoing, whether or not conceived, reduced to practice or developed during the Term; and (iii) all Intellectual Property relating to any of the foregoing.
(n) "Output" shall mean any reports, insights or other output of the Subscription Services specific to Customer or the Customer Data.
(o) "Receiving Party" has the meaning as set forth in Section 5.
(p) "Renewal Term" has the meaning as set forth in Section 4.
(q) "Representatives" of a Party means any and all officers, directors, employees, consultants, contractors, agents, attorneys, accountants, financial advisors, and other representatives of such Party.
(r) "Software" means that certain proprietary business efficiency software that ORM develops and may modify and adapt based on Customer's specific business and business requirements.
(s) "Statements of Work" means those statements of work that may be attached to an Order Form to provide a more detailed description of the services to be provided by ORM to Customer.
(t) "Subscription Services" means the ORM Software application and any other software applications and services, which are ordered by Customer pursuant to an Order Form and made available by ORM to Customer and its Users as a software as a service (SaaS) offering via log-in credentials on a website designated by ORM, and the implementation of such services.
(u) "Term" has the meaning specified in Section 4.
(v) "Users" means individuals who are authorized by Customer to use the Subscription Services, and who have been supplied with user identifications and passwords by Customer (or by ORM at Customer's request). "Users" may include Customer's employees and any on-site contract employees who perform services solely under the direction of Customer and solely for or on behalf of Customer from its offices or facilities.
2. Subscription Services.
ORM shall provide Customer the Subscription Services as set forth in this Agreement.
(a) Grant of Use Rights. Subject to the terms and conditions of this Agreement and the applicable Order Form(s), ORM hereby grants to Customer (and only for the specific Users identified by Customer), for its internal business purposes and for no other purpose, a non-exclusive, non-transferable right during the Term to access and use the Subscription Services specified in the Order Form(s) for the number of Users specified in such Order Form(s).
(b) Customer Data and End-User Data. Customer hereby grants to ORM, its affiliates and applicable contractors a non-exclusive, non-transferable, worldwide right to use Customer Data strictly for the limited purpose of providing the Subscription Services to Customer.
(c) Data Security. ORM shall maintain administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data.
(d) Use of De-Identified Data. Notwithstanding anything to the contrary contained in this Agreement, ORM has the right, during and after a Term, to use, reproduce and distribute aggregate and de-identified data derived from use of the Subscription Services, for any lawful purpose.
(e) Customer Responsibilities. Customer is responsible for: (i) Customer's required participation in the implementation of the Subscription Services; (ii) using the most current licensed versions of an Internet browser; (iii) protecting the names and passwords of the Users; (iv) preventing, and promptly notifying ORM of, any unauthorized access; (v) the reliability, integrity, accuracy, quality and lawfulness of all Customer Data; (vi) each User's compliance with the terms of this Agreement; (vii) using the Subscription Services within the permitted scope; (viii) maintaining archival and backup copies of all Customer Data; (ix) obtaining valid licenses to Third-Party Materials; and (x) using the Subscription Services in accordance with applicable laws.
(f) Restrictions. Customer shall not release evaluation results without ORM's prior written approval. Customer shall not license, sub-license, sell, re-sell, rent, lease, transfer, or distribute the Subscription Services, create derivative works, disassemble, reverse engineer, or decompile the Subscription Services, or use them to develop a competing product.
3. Fees and Expenses.
(a) As consideration for the Subscription Services, Customer will pay ORM an annual subscription fee as set forth in the Order Form.
(b) Customer shall reimburse ORM for all reasonable travel and other ordinary and necessary business expenses incurred by ORM in connection with providing services, subject to Customer's prior written approval.
(c) Any additional or expanded consulting services will be billed at ORM's then current daily rates.
(d) Any payments due under this Agreement will be due and payable within thirty (30) days of ORM's delivery of an invoice. Any sums not paid when due will bear interest at a rate equal to 5% per annum.
(e) All amounts payable are exclusive of taxes. All taxes are the sole responsibility of Customer.
(f) All Subscription Services are subject to review and potential fee increases with no less than forty five (45) days notice prior to the expiration of the then current Term.
(g) Customer will make all payments in United States dollars, by wire transfer to the account designated by ORM.
4. Term and Termination.
(a) The initial term commences on the Effective Date and shall continue for twelve months (the "Initial Term"), automatically renewing for successive twelve month periods (each, a "Renewal Term"), unless either Party provides 30 days' notice of non-renewal.
(b) If there are no Order Forms then in effect, either Party may terminate with ten days' prior written notice.
(c) Either Party may terminate for material breach not cured within 60 days (or 5 days for payment failures) after written notice.
(d) ORM may immediately terminate if Customer breaches Section 3(f) or Section 5(c).
(e) Either Party may terminate immediately if the other becomes subject to bankruptcy, insolvency, or similar proceedings.
(f) The terminating Party retains all rights and remedies under this Agreement and applicable law.
(g) Upon termination, Customer shall immediately destroy all of ORM's Confidential Information.
5. Confidentiality.
(a) Definition; Exclusions. "Confidential Information" means all confidential or proprietary information belonging to either Party (the "Disclosing Party") and disclosed to the other Party (the "Receiving Party"). Confidential Information does not include information that is publicly available, was previously known, was rightfully disclosed by a third party, or was independently developed.
(b) Restrictions on Use. The Receiving Party agrees not to use Confidential Information except to perform its obligations under this Agreement.
(c) Disclosure. The Receiving Party shall hold Confidential Information in strict confidence and not disclose it except to Representatives who require it, subject to confidentiality obligations no less stringent than those herein.
6. Nondisclosure and Nonuse of Third-Party Information.
ORM will not disclose to Customer, use in providing Subscription Services, or cause Customer to use, any information that is confidential to any third party, unless ORM has a written agreement allowing it.
7. Intellectual Property and Inventions.
(a) All consulting work product, reports, and materials constituting Intellectual Property or Developments shall be the sole property of ORM.
(b) All Developments conceived or made by ORM during the term shall be the sole property of ORM.
(c) Each Party shall execute documents to secure intellectual property rights.
(d) Customer shall have a perpetual, irrevocable, royalty-free, non-exclusive, worldwide license to copy, modify and use Developments.
(e) Customer will own all right, title and interest in Customer Data and Output.
(f) Customer will own all right, title and interest in Customer Materials.
8. Notices.
Any notice must be in writing and sent by certified mail, courier, or manually signed email to:
If to ORM:
ORM Technologies, LLC
10000 N Central Expy, STE 775
Dallas, TX 75231
legal@orm-tech.com
If to Customer: As set forth in an Order Form.
9. Independent Contractor.
ORM is an independent contractor and assumes full responsibility for all taxes. ORM is not authorized to act on behalf of Customer except when specifically authorized in writing.
10. Warranties and Disclaimer of Warranties; Limitation of Liabilities.
(a) By Customer. Customer represents it is duly organized and this Agreement is legally binding. Customer will comply with all applicable laws.
(b) By ORM. ORM represents it is duly organized and this Agreement is legally binding. ORM will comply with all applicable laws.
11. Limited Subscription Services Warranty.
ORM warrants that the Subscription Services will perform in material accordance with applicable documentation. If ORM breaches this warranty, Customer's sole remedy is for ORM to correct the non-conformity within 60 days. If ORM is unable to correct it, Customer may terminate and receive a pro-rata refund.
12. DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE WARRANTIES EXPRESSLY STATED, ORM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. ORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR ERROR.
13. LIMITATION OF LIABILITY.
THE CUMULATIVE LIABILITY OF ORM WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE TWELVE-MONTH PERIOD PRIOR TO THE CLAIM. IN NO EVENT WILL ORM BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA.
14. Indemnification.
(a) ORM shall indemnify Customer against third-party claims that the Services infringe intellectual property rights or violate applicable law.
(b) Customer shall indemnify ORM against third-party claims caused by Customer's negligence or willful misconduct.
(c) Indemnification procedures require prompt written notice, cooperation, and sole control of defense by the indemnifying party.
(d) If the Software is found to infringe, ORM may obtain rights for Customer or modify the Software to make it non-infringing.
(e) ORM has no obligation for claims based on Customer's independent use, business conclusions, altered Software, or combination with non-ORM programs.
(f) Neither Party will be liable for indirect or consequential damages. Total cumulative liability will not exceed fees paid in the prior twelve months.
15. Miscellaneous.
(a) Invalid provisions shall be severable.
(b) Each Party is entitled to injunctive relief for breach of Sections 3 and 6.
(c) This Agreement, together with any Order Form, represents the entire agreement.
(d) Neither Party may assign this Agreement except in connection with a merger or acquisition.
(e) No failure to enforce shall be deemed a waiver.
(f) Sections 2, 3, 5, 7, 10 through 14 survive termination.
(g) ORM is an independent contractor.
(h) This Agreement is governed by Delaware law.
(i) Section headings are for convenience only.
(j) This Agreement may be executed in counterparts.
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