KAGR Master Client Agreement
Last Updated: 9/13/2023
This Master Client Agreement (the “Agreement”) governs the relationship between Client and KAGR LLC (“Provider” or “KAGR”), with regards to KAGR’s Platform and Services (each as hereinafter defined). Capitalized terms used in this Agreement shall have the definitions set forth herein, or as otherwise set forth in a Statement of Work (“SOW”) between Client and Provider. This Agreement immediately becomes effective when the Parties execute the first SOW that references this Agreement (such date of execution, the “Effective Date”). To the extent of a conflict between the terms of this Agreement and the terms of a SOW, the terms of the SOW shall control.
- 1. Platform.
- 1. Platform License. Provider grants to Client a nontransferable, non-exclusive license during the Subscription Period to allow Authorized Users to access and use the Platform for Client’s internal business purposes in accordance with the terms of this Agreement.
- 2. Platform Availability; Service Levels. Provider will use commercially reasonable efforts to make the Platform available for access and use by Client and Authorized Users in accordance with Provider’s standard Service Level Policy, available at kagr.com/legal-service-level-policy/.
- 3. User Guide. Client shall access and use the Platform in accordance with the standard Platform User Guide, available at kagr.com/legal-kagr-platform-user-guide/ (the “User Guide”). Client’s failure to comply with the User Guide may cause a delay in Provider’s performance of Services or delivery of Deliverables.
- 4. Use Restrictions.
- 1. Client shall not, and shall not allow any Authorized User or third party who gains access to the Platform with Client’s authorization or due to Client’s failure to use reasonable security precautions to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Platform by any means, or disclose any of the foregoing; (ii) except as expressly set forth in the Agreement, provide, rent, lease, lend, or use the Platform for timesharing, subscription, or service bureau purposes; (iii) sublicense, transfer or assign the Platform or any of the rights or licenses granted under the Agreement; or remove or obscure any trademark, copyright or other proprietary notices provided with the Platform or related documentation.
- 2. Client shall not, and shall not allow any Authorized User or third party who gains access to the Platform with Client’s authorization or due to Client’s failure to use reasonable security precautions to: (i) use the Platform for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local, federal, or international law; (ii) transmit Client Data using the Platform that infringes upon or misappropriates the intellectual property or privacy rights of any third party; (iii) perform any load testing of the Platform or attempt to probe, scan or test the vulnerability of the Platform without proper authorization; or (iv) log into a server or account that Client is not authorized to access.
- 3. Client is responsible for all activity occurring under Authorized User accounts and for each Authorized User’s compliance with all terms and conditions of the Agreement. Client is also responsible for the use of the Platform by any person who gains access to Client Data or the Platform as a result of Client’s failure to use reasonable security precautions, even if the use was not authorized by Client. If Client accesses and/or uses data from third-party data sources as part of the Platform, Client is responsible for its, and its Authorized Users’, compliance with all terms and conditions provided by the third-party data provider with respect to the access and use of such third-party data.
- 4. A portion of the Software may contain or consist of open source software, which Client may use under the terms and conditions of the specific license under which the open source software is distributed.
- 5. Client Representations. Client represents and warrants that (1) each of Client and any Custodian that provides any data (including but not limited to Client Data) to Provider has all rights necessary or otherwise desirable to license Provider to use such data in the manner contemplated by the relevant SOW; (2) between the Parties, Client is responsible for any fees required by (a) a Custodian or any third party in order to provide data to Provider pursuant to the relevant SOW and (b) a third-party vendor in order for Provider to perform services for Client under the relevant SOW, which may include third-party data appends, a third-party deploying a survey on behalf of Client, or third-party support required for a data integration; (3) the provision of all such data to Provider and the use by Provider of such data in the manner contemplated by the relevant SOW and this Agreement complies with all Applicable Laws and applicable privacy policies and does not infringe upon the intellectual property rights or other proprietary rights of any other party; and (4) subject to Section 6.3, no Sensitive Data will be provided to Provider.
- 6. Authorized Users. The Subscription to the Platform is granted solely to the parties stated in the relevant SOW and their Authorized Users and shall not be shared with any third parties other than Authorized Users. The number of Authorized Users accessing the Platform shall not exceed the maximum number of Authorized Users specified in the relevant SOW. User subscriptions are for named users and cannot be shared or used by more than one user but may be reassigned from time to time to new Authorized Users if an Authorized User has terminated an employment or some other prior relationship with Client, changed job status or function, or otherwise no longer requires ongoing use of the Platform.
- 7. Platform Suspension. Provider may suspend all or part of the Platform or Client’s access thereto: (i) upon receipt of a subpoena or law-enforcement request; or (ii) when Provider has a commercially reasonable belief that Client has breached a material term of this Agreement or the User Guide, or that Client’s use of the Platform poses an imminent security risk or may otherwise subject Provider to liability.
- 8. Platform Modification. Provider may from time to time develop enhancements, upgrades, updates, improvements, modifications, extensions and other changes to the Platform (“Changes”). Client hereby authorizes Provider to implement such Changes without prior notice or consent, provided that such Changes do not have a material adverse effect on the functionality or performance of the Platform.
- 9. Platform Maintenance. It may be necessary for Provider to perform scheduled or unscheduled patches, updates, repairs or maintenance, which may temporarily degrade the quality of the Platform or result in a partial or complete outage of the Platform on a temporary basis.
- 2. Statements of Work
- 1. Scope of SOW; Changes to SOW. Subject to the terms of this Agreement, Provider will perform the Services and provide the Deliverables set forth in a SOW. If Client seeks to modify or add to the Services or Deliverables, Client shall submit such request (a “Change Request”) in writing to Provider with a sufficient level of detail. Provider will determine whether such Change Request is, in its reasonable judgment, technically and commercially feasible, and if so, what impact approving the Change Request will have on the Services, Deliverables, Fees, timetable and milestones. Provider shall respond to Client in writing with either: (a) an acceptance of the Change Request; (b) a proposal of modifications to the Change Request; or (c) the reasons why such a Change Request cannot be accepted. In the event that the Change Request as evaluated and/or modified is acceptable to both Parties, the Parties shall amend the relevant SOW or enter into a new SOW to address the scope of the new or changed Services and/or Deliverables, in a writing signed by their respective authorized signatories (a “Change Order”). Client is not entitled to, and Provider is not obligated by, a Change Request unless and until it becomes a Change Order.
- 2. Acceptance. The Deliverables shall be subject to acceptance as to form and content by Client. Except as otherwise set forth in a SOW, Client shall, within ten (10) days of receipt of Deliverables (the “Acceptance Period”), give Provider written notice of Client’s acceptance or rejection of the Deliverables. Failure to provide notice within the Acceptance Period shall constitute acceptance of the Deliverables.
- 3. SOW Disputes. In the event that Client believes that Provider has failed to perform Services, or failed to provide Deliverables, in a manner that conforms with the relevant SOW, Client must notify Provider in writing, describing with sufficient detail the Services or Deliverables that Client believes fail to conform to such SOW. If Provider failed to perform Services or provide Deliverables in a manner that complies with the relevant SOW, Provider will promptly, at Provider’s sole cost and expense, modify the Services or Deliverables such that they comply with the relevant SOW. In the event that the Parties dispute whether Provider performed Services or provided Deliverables in a manner that complies with a SOW, the Parties will work together in good faith to resolve such dispute. If the Parties cannot resolve such dispute, a manager from Provider will discuss with a manager from Client to attempt to resolve the dispute for two (2) business days; if the dispute is still not resolved within such two day period, an executive from each Party shall attempt to resolve the dispute within two (2) business days.
- 3. Fees and Payment; Modifications
- 1. Fees; Payment. Client agrees to pay Provider all fees set forth in each SOW on or prior to the payment due dates set forth in each SOW. All payments not received when due shall accrue interest at a rate per month of one percent (1.0%). Payment obligations are non-cancellable and non-refundable.
- 2. Reimbursable Expenses. Client shall be responsible for the payment in full of any Reimbursable Expenses incurred by the Provider while performing the Services. Within thirty (30) days of written notice from the Provider, Client shall reimburse the Provider for all undisputed Reimbursable Expenses.
- 3. Taxes. The Fees payable under this Agreement shall not include local, state, federal or foreign sales, use, value-added, excise or personal property or other similar taxes or duties now in force or enacted in the future imposed on the transaction and/or the delivery of the Services, all of which Client shall be responsible for and pay in full except those taxes based on the net income of Provider. If Client is exempt from the payment of any such taxes, upon execution of the Agreement, Client shall provide Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
- 4. Term and Termination.
- 1. Term. This Agreement shall commence and be effective upon the Effective Date, and shall remain in effect until completion or termination of all SOWs between the Parties (the “Term”). In the event that Client licenses a Subscription to the Platform, the initial Platform Subscription Term, and options to renew or extend the initial Platform Subscription Term (each, a “Platform Renewal Term”), shall be as set forth in the relevant SOW. The “Platform Subscription Term” shall include all Platform Renewal Terms.
- 2. Termination for Non-Payment. Provider may terminate a SOW entered into pursuant to this Agreement if Client fails to make payment on or prior to the due date(s) set forth in such SOW and fails to cure such failure within five (5) days of written notice from Provider.
- 3. Termination for Cause. In addition to the termination right of Provider set forth in Section 4.2 above, either Party may terminate this Agreement by written notice if the other Party fails to observe and perform fully any material term, covenant or agreement contained in a SOW, the User Guide or this Agreement on its part to be performed and such failure continues for a period of thirty (30) days after the defaulting Party is given written notice specifying the nature of such failure and requesting that it be remedied. The Parties expressly agree that, so long as Provider performs the Services and provides the Deliverables in a manner that substantially complies with the relevant SOW, Client shall not have the right to terminate for cause as set forth in this Section.
- 4. Termination due to Bankruptcy or Insolvency. Either Party may terminate this Agreement by written notice if the other Party makes an assignment for the benefit of creditors, files a petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any receiver or trustee for it or a substantial part of its property, commences any proceeding relating to it under any reorganization, arrangement, readjustment of debt, dissolution or liquidating law or statute of any jurisdiction, or if there is commenced against it any such bankruptcy proceeding that remains undismissed for a period of sixty (60) days, or if by any act indicates its consent to, approval of or acquiescence in any such proceeding or the appointment of any receiver of or any trustee for it or a substantial part of its property or suffers any such receivership or trusteeship to continue undischarged for a period of sixty (60) days.
- 5. Remedies and Outstanding Fees. In the event that Provider terminates a SOW pursuant to this Section 4, Client shall pay Provider as liquidated damages and not as a penalty, the lesser of (i) Fees due under the terminated SOW for six (6) month period following the date of termination of the SOW and (ii) all Fees due under the terminated SOW for the remainder of the term set forth in such SOW. Termination shall not relieve Client of the obligation to pay Provider immediately upon demand all amounts due and payable as of the termination date, provided that if Client terminates a SOW or this Agreement in accordance with Section 4.3 or Section 4.4, Client shall be entitled to a refund of any pre-paid Fees, prorated as of the termination date.
- 6. Effect of Termination. Upon any termination or expiration of the Agreement (i) Provider will cease providing the Services and will terminate Client’s access to the Platform; (ii) Client shall immediately cease any and all use of and access to any Platform; (iii) Provider will return (or destroy in the event it is impossible to return and certify such destruction) all Client Data; (iv) each party hereunder shall return to the other party any and all Confidential Information of the other party in its possession; and (v) no Party shall have any further obligation to the other, other than those that expressly survive pursuant to this Agreement.
- 5. Proprietary Rights.
- 1. Client Data. All right, title, and interest in and to Client Data as well as any Confidential Information provided by Client, will belong solely and exclusively to Client. Provider will have no rights in the Client Data except as provided in this Agreement. Client hereby grants to Provider a worldwide, non-exclusive, fully paid-up license to use the Client Data solely (i) in any manner reasonably necessary to provide the Platform to Client and/or perform the Services and/or (ii) in an anonymized form or in an aggregated format including with data provided by other third parties provided that it is not possible to identify Client or the identity of any individual contained in the Client Data.
- 2. Platform. All right, title, and interest in the intellectual property embodied in the Platform, content provided by Provider through the Platform, any customizations of the Platform, and any other adaptation, modification, derivation, addition or extension thereof (including but not limited to customized or adapted data via exports), will belong solely and exclusively to Provider or Provider’s licensors, and Client will have no rights in any of the above, except as expressly granted in this Agreement. Any intellectual property developed by Provider during the performance of the Services or provision of the Platform will belong solely and exclusively to Provider and Provider’s licensors.
- 3. Consulting and Professional Services. If any consulting services, training, data migration, data conversion, data integration or other professional services are included in a SOW, in addition to the provisions in this Agreement relating to such Services, the following provisions shall apply. Except as expressly provided otherwise in a SOW, Provider retains all ownership rights to any and all Deliverables or work product created in connection with the performance of the Services (excluding any Client Intellectual Property); provided that Provider grants Client a perpetual, royalty free, non-exclusive, non-assignable worldwide license to use any such Deliverable or work product, in a manner consistent with its then existing business. The Parties acknowledge that nothing in this Agreement shall restrict or limit Provider from performing similar services for any third party.
- 4. Feedback. Client agrees that Provider shall own all rights, title and interest, including all copyrights, in and to any appraisals, comments, evaluations, suggestions or contributions (collectively, “Feedback”) provided by Client or an Authorized User with respect to the Provider’s Services and/or Client’s or Authorized User’s use of the Platform. Client hereby assigns and conveys to Provider any rights and interests, including all intellectual property rights, in and to any such Feedback Client may have, create or provide during the Term, provided that the Provider shall not disclose Feedback that includes Client Confidential Information to a third party without Client’s consent. To the extent that such assignment is held to be invalid or unenforceable, Client hereby grants to Provider a perpetual, exclusive, transferable, royalty-free license to use any Feedback without restriction.
- 6. Data Privacy and Security.
- 1. Data Security. KAGR is committed to securely maintaining and storing Client Data and Client Confidential Information. The Parties shall comply with the security policy located at kagr.com/legal-data-security-policy/ (the “Security Policy”).
- 2. Processing of Personal Data.
- 1. The Parties hereby enter into the Data Processing Addendum, available at kagr.com/legal-data-processing-addendum/ (as amended from time to time in the manner set forth therein, the “DPA”).
- 3. Sensitive Data. Client agrees that no Sensitive Data will be disclosed or made available or accessible to Provider by or on behalf of Client without Provider’s prior written consent as set forth in the DPA. In the event that Client inadvertently provides Provider with Sensitive Data, then, without limitation of any other rights or remedies that Provider may have, Client shall provide immediate notice thereof to Provider and Provider shall have the right to immediately and permanently delete such Sensitive Data.
- 7. Limitations.
- 1. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PLATFORM AND THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PLATFORM OR ANY OF THE SERVICES PROVIDED HEREUNDER EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PROVIDER IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT WITHIN ITS REASONABLE CONTROL.
- 2. EXCEPT WITH RESPECT TO INDEMNITY OBLIGATIONS SET FORTH IN SECTION 8, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR ANY SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, INCOME, PROFIT OR SAVINGS; LOST OR CORRUPTED DATA, PROGRAMS OR SOFTWARE; LOSS OF USE OF A SYSTEM OR NETWORK; LOSS OF BUSINESS OPPORTUNITY; BUSINESS INTERRUPTION OR DOWNTIME.
- 3. EXCEPT WITH RESPECT TO (I) INDEMNITY OBLIGATIONS SET FORTH IN SECTION 8, (II) PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (III) PROVIDER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, PROVIDER’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITH RESPECT TO THE PLATFORM AND ANY SERVICES PROVIDED HEREUNDER) WILL NOT EXCEED THE GREATER OF (Y) THE TOTAL AMOUNT RECEIVED BY PROVIDER UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH SUCH CLAIM(S) AROSE OR (Z) WITH RESPECT TO A CLAIM PURSUANT TO SECTION 7.3 (I-III), AN AMOUNT EQUAL TO TWO TIMES (2X) THE TOTAL AMOUNT RECEIVED BY PROVIDER UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH SUCH CLAIM(S) AROSE .
- 4. THE PROVISIONS OF THIS SECTION 7 ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN PROVIDER AND CLIENT, AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. PROVIDER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATIONS SPECIFIED HEREIN. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW.
- 8. Indemnification.
- 1. Indemnification by Provider. Provider will defend and indemnify Client and any Authorized User from and against any claims, damages, liabilities, losses, costs and expenses, including reasonable attorneys’ fees (collectively, “Claims”) arising out of or relating to any third-party claim or action that (i) any representation by Provider in this Agreement is materially inaccurate, false or misleading, (ii) Provider has breached or failed to perform any obligation or covenant made by Provider in this Agreement or a SOW, (iii) the Platform or the Software (or the Services performed in connection therewith) infringes or misappropriates a third-party’s intellectual property rights, or (iv) Provider failed to use reasonable security precautions to protect Client Data from being stolen or misappropriated by a third party. Should the Platform become, or in Provider’s reasonable opinion be likely to become, the subject of a claim for infringement of a third party’s intellectual property rights, then Provider will, at Provider’s option, (a) obtain a right that allows Provider to continue providing the Platform; (b) modify the Platform to make it non-infringing (without material adverse effect to Client); (c) replace the Platform with a non-infringing equivalent (without material adverse effect to Client); or (d) remove from the Platform any aspect for which Provider does not have the required rights or approvals, or if such removal is not possible, terminate the relevant SOW solely with respect to such aspect, without further obligation or liability on the part of either Party, except that Provider agrees to promptly refund to Client the fees paid by Client for the portion of the Subscription Term for which the Platform would no longer be available to Client. Notwithstanding the foregoing, Provider will have no obligation under this Section for any claim resulting or arising from (1) Client’s gross negligence or willful misconduct, (2) modifications of the Platform that were not performed by or on behalf of Provider, (3) the combination, operation or use of the Platform by Client in connection with a third-party product (the combination of which causes the claimed infringement), or (4) a dispute arising solely from Client Data or other materials or processes provided by Client for use in the Platform. This Section provides Client’s exclusive remedies for any third-party intellectual property claim or action.
- 2. Indemnification by Client. Client will defend and indemnify Provider from and against any Claims arising out of or relating to any third party claim or action that (i) any representation by Client in this Agreement is materially inaccurate, false or misleading, (ii) Client has breached or failed to perform any obligation or covenant made by Client in this Agreement or a SOW, (iii) the Client Data, Client Intellectual Property or other materials or processes provided by Client infringes or misappropriates a third-party’s intellectual property rights, or (iv) relate to Client’s or its Authorized Users’ use of the Platform or Services in a manner prohibited by this Agreement or the User Guide. Should the Client Data or Client Intellectual Property become, or in Client’s reasonable opinion be likely to become, the subject of a claim for infringement of a third party’s intellectual property rights, then Client will, at Client’s option, (a) obtain a right that will allow Provider to continue to possess, store and use the Client Data or Client Intellectual Property in connection with the Platform; (b) modify the Client Data or Client Intellectual Property to make it non-infringing (without material adverse effect to Provider); (c) replace the Client Data or Client Intellectual Property with a non-infringing equivalent (without material adverse effect to Provider); or (d) remove from the Client Data or Client Intellectual Property any records for which Client does not have the required rights or approvals. Notwithstanding the foregoing, Client will have no obligation under this Section for any claim resulting or arising from (1) Provider’s gross negligence or willful misconduct, (2) the use or storage of the Client Data or Client Intellectual Property by Provider in connection with a third-party product (the combination of which causes the claimed infringement); or (3) a dispute arising solely from materials or processes provided by Provider through the Platform. This Section provides Provider’s exclusive remedies for any third-party intellectual property claim or action.
- 3. Indemnification Procedure. The indemnified Party will (i) promptly notify the indemnifying Party in writing of any claim; (ii) grant the indemnifying Party sole control of the defense of the claim; and (iii) cooperate with the indemnifying Party, at the indemnifying Party’s expense, in defending and resolving the claim. The indemnified Party may participate in the defense of any claim at its own cost. Failure of the indemnified Party to provide prompt notice, however, will not affect the indemnifying Party’s obligations to the extent the failure does not materially prejudice the indemnifying Party’s ability to defend the claim. In no event will an indemnifying Party consent to the entry of any judgment or enter into any settlement with respect to any third-party claim without the prior written consent of the indemnified Party (not to be unreasonably withheld) unless the judgment or settlement involves only the payment of money damages, without admission of fault, and expressly and unconditionally releases the indemnified Party from all liabilities and obligations with respect to the claim.
- 9. Miscellaneous.
- 1. Representations and Warranties. Each Party hereby represents and warrants to the other Party, as of the effective date of each SOW, as follows:
- 1. Such Party is duly organized validly existing and in good standing under the laws of the jurisdiction in which it is established.
- 2. The execution, delivery and performance of this Agreement, SOWs and the transactions contemplated hereby and thereby (a) are within the authority of such Party, (b) have been duly authorized by all necessary proceedings, (c) do not conflict with or result in any breach or contravention of any provision of any Applicable Law to which such Party is subject, and (d) do not conflict with any provision of any agreement or instrument binding upon such Party.
- 3. The execution and delivery of this Agreement and SOWs will result in valid and legally binding obligations of such Party, enforceable against such Party in accordance with the terms and provisions hereof and thereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.
- 4. There are no actions, suits, proceedings or investigations of any kind pending or threatened against such Party with respect to the transactions contemplated by this Agreement or a SOW before any governmental authority that, if adversely determined, would have a Materially Adverse Effect.
- 5. Such Party is not in violation of any provision of its charter documents, or any agreement or instrument to which it may be subject or by which it or any of its properties may be bound, or any Applicable Law, in any of the foregoing cases in a manner that has a Materially Adverse Effect.
- 2. Confidentiality. Confidential Information may not be disclosed except to Authorized Users, affiliates, employees, agents and subcontractors who “need-to-know” it and are obligated to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Each Party agrees to take the necessary precautions to maintain the confidentiality of the other Party’s Confidential Information by using at least the same degree of care as such Party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient will provide reasonable advance notice to other Party before making the disclosure, if permitted by Applicable Law.
- 3. Compliance with Laws. Each Party shall, and shall cause its employees, agents, contractors, Authorized Users (if applicable) and consultants to, comply fully with all Applicable Laws in connection with the exercise of its rights and fulfillment of its obligations under this Agreement and each SOW. No provision of this Agreement shall require either Party to take any action inconsistent with or which would violate any Applicable Laws.
- 4. Use of Marks; Public Announcements. Neither Party may use the name, trademarks, trade names or logos owned by the other Party without the prior written consent of the other Party. Neither Party shall make any public announcement about this Agreement or the subject matter thereof without the prior written consent of the other Party, unless a disclosure is required by law.
- 5. Purchase Order Terms. Acceptance by Provider of Client’s purchase orders or confirmations shall not, insofar as such purchase orders or confirmations may be inconsistent herewith or additional hereto, alter, vary or add to the terms of this Agreement or any SOW.
- 6. Independent Contractor Relationship; No Third-Party Beneficiaries. The Parties are independent contractors. No provision of this Agreement creates an association, trust, partnership or joint venture or imposes fiduciary duties, obligations or liability between Client and Provider. Neither Party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another Party. This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the Parties hereto and any indemnitee under Section 8.
- 7. Force Majeure. Neither Party will be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which performance is delayed by circumstances beyond its reasonable control, such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, riot, embargo, public emergency, epidemic, pandemic, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of internet traffic carriers or actions or omissions of regulatory or governmental authorities (including the passage of laws or regulations or other acts of government or law enforcement that impact the delivery of the Platform) (a “Force Majeure”). In the event of Force Majeure, the non-performing Party shall (a) provide the other Party with prompt written notice of the Force Majeure event, including an estimation of its expected duration and probable impact on the performance of its obligations under the affected SOW(s), and (b) use commercially reasonable efforts to continue to perform its obligations under the affected SOW(s) despite the Force Majeure event. If the non-performing Party fails to perform its obligations due to a Force Majeure event for more than 180 consecutive days, the other Party may terminate the affected SOW(s) upon written notice to the non-performing Party, and the terminating Party shall not be liable for any payments due after the termination date.
- 8. Assignment. Except as provided herein, Provider and Client may not assign this Agreement or any rights or obligations under this Agreement to a third-party without the other Party’s prior written consent. Each party may assign this Agreement to an Affiliate (provided such Party remains primarily liable) or a successor of that Party’s business, product line or substantially all of that Party’s assets. Provider may subcontract or delegate in whole or in part this Agreement, provided that Provider remains responsible for the performance of the Services.
- 9. Entire Agreement; Severability. This Agreement and any SOWs entered into from time to time constitute the entire agreement between Client and Provider with respect to its subject matter and supersede all prior oral and written understandings, communications or agreements between Client and Provider. Subject to Section 9.14 below, no amendment to or modification of this Agreement or any SOW, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both Parties. If any provision of this Agreement or any SOW should be found to be void or unenforceable, the provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement or such SOW will remain in full force and will not be terminated.
- 10. Governing Law; Dispute Resolution. This Agreement and any claim, dispute or controversy between Client and Provider arising from or relating to this Agreement, each SOW and the transactions contemplated hereby and thereby, shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to its conflicts of law rules. Except as expressly provided herein, any dispute, claim or controversy arising out of or relating to this Agreement, a SOW and the transactions contemplated hereby and thereby, including whether the claims asserted are arbitrable shall be exclusively referred to and finally determined by arbitration under the Commercial Arbitration Rules of the American Arbitration Association. The tribunal shall consist of one arbitrator, unless the claim amount exceeds $1,000,000.00, in which case the tribunal shall consist of three arbitrators. The place of arbitration shall be New York, NY. The arbitrator shall not have the jurisdiction to award multiple or punitive damages except to the extent authorized by this Agreement. The arbitrator shall not have the jurisdiction to consolidate the arbitration proceeding with any other arbitration or to join any parties in the arbitration who are not parties to, or intended third party beneficiaries of, this Agreement. Except as otherwise specifically limited in this Agreement, the arbitrator shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitrator shall, to the extent permitted by Applicable Law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. Each Party retains the right to apply to any court of competent jurisdiction for provisional and/or conservatory relief, including pre-arbitral attachments or injunctions, and such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The Parties specifically waive the right to participate in a representative capacity or as a member of any class of claimants pertaining to any dispute, claim or controversy arising out of or relating to this Agreement or the transactions contemplated hereby. The Parties understand that the arbitrator’s decision will be final and binding, and that certain rights that a party may have in a court proceeding may not be available in arbitration.
- 11. Attorney’s Fees. In the event that either Party hereto brings an action or proceeding against the other Party to enforce or interpret any of the covenants, conditions, agreements or provisions of this Agreement, the prevailing Party in such action or proceeding shall be entitled to recover all reasonable costs and expenses of such action or proceeding, including without limitation, reasonable attorney’s fees, charges, disbursements and the fees and costs of expert witnesses.
- 12. Waiver. The failure by Provider to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit Provider’s right to enforce such provision at a later time. All waivers must be in writing to be effective.
- 13. Non-Solicitation. Each Party agrees that during the Term and for a period of one year following the termination of this Agreement, neither Party shall solicit, attempt to solicit, or encourage to leave the employment of the other Party, or employ in any capacity or retain as a consultant or agent, any person who was employed by the other Party during the Term; provided that the foregoing shall not apply to any action resulting from general advertisements conducted by one Party that are not specifically targeted at the other Party’s employees.
- 14. Updates. Provider may revise and update this Master Client Agreement and its User Guide, Service Level Policy, the DPA, the Security Policy, and other documentation generally applicable to clients of Provider (“Provider Standard Documentation”), in Provider’s sole discretion. The most current versions of Provider Standard Documentation are available at kagr.com/legal-master-client-agreement/. If Provider makes material changes, as determined by Provider in its sole discretion, to the terms of any Provider Standard Documentation, Provider will notify Client in writing, and will indicate at the top of the applicable documentation the date that revisions were last made. Client should revisit the Provider Standard Documentation on a regular basis, as revised versions are binding upon Client. All revisions and updates to Provider Standard Documentation will be effective immediately upon posting. Client’s continued use of Provider Services following changes to Provider Standard Documentation constitutes Client’s acceptance of such changes.
- 15. Notice. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered (i) by hand, (ii) sent, postage prepaid, by registered, certified or express mail or reputable overnight courier service and shall be deemed given when so delivered by hand, or if mailed, three (3) days after mailing (one (1) business day in the case of express mail or overnight courier service), as follows: if to Provider: KAGR LLC, 200 Patriot Place Suite 200, Foxborough, MA 02035, Attn: CEO; if to Client, the address and contact person set forth in the relevant SOW, or (iii) when delivered by e-mail to the respective address set forth in the relevant SOW provided that the recipient, by a notice delivered to sender in accordance with this Section (with the understanding that an automatic “read receipt” does not constitute acknowledgment of an e-mail for purposes of this Section), acknowledges having received such e-mail. Either Party may change the address(es) for the giving of notices and communications to it, and/or copies thereof, by written notice to the other Party in conformity with the foregoing. Any e-mail purporting to provide notice under this Agreement that is not sent pursuant to the terms of this Section shall not be considered valid notice.
- 16. Survival. The provisions of Sections 1.4 (Use Restrictions), 5 (Proprietary Rights), 8 (Indemnification), and 9 (Miscellaneous) hereof shall survive the termination and/or expiration of this Agreement.
- 1. Representations and Warranties. Each Party hereby represents and warrants to the other Party, as of the effective date of each SOW, as follows:
- 10. Definitions. As used in this Agreement:
“Acceptance Period” shall have the meaning set forth in Section 2.2.
“Affiliate” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Analytics Model” shall mean a model that analyzes Client Data to predict future occurrences and results.
“Applicable Law(s)” means any law (including common law), statute, act, decree, ordinance, rule, directive (to the extent having the force of law), order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any governmental authority and as amended, supplemented or otherwise modified and in effect from time to time, including any replacement thereof.
“Authorized Users” means (a) employees of Client and (b) Client’s consultants and contractors authorized by Client to access and use the Platform, who have been supplied user identification and passwords by Client. Unless otherwise provided in this Agreement, Authorized Users shall not include: (i) Client’s suppliers or (ii) employees, consultants, contractors or suppliers of any of Client’s Affiliates or other entities.
“Changes” shall have the meaning set forth in Section 1.8.
“Change Order” shall have the meaning set forth in Section 2.1. “Change Request” shall have the meaning set forth in Section 2.1.
“Claim(s)” shall have the meaning set forth in Section 8.1.
“Client” shall mean the client identified on a SOW between client and Provider.
“Client Data” shall mean any information (i) transmitted by, on behalf of, or at the direction of Client to Provider or (ii) uploaded, submitted or stored by, on behalf of, or at the direction of Client through the Services (including without limitation any third-party data uploaded, submitted, or stored by Provider through the Services at Client’s direction), in each case Processed by Provider on behalf of Client.
“Client Intellectual Property” shall mean any intellectual property that Client has developed or develops independent of this Agreement and that Client introduces to Provider for incorporation into the Platform pursuant to this Agreement, including, without limitation, any technology or materials supplied by Client for incorporation into any deliverable or work product.
“Client Record” shall mean, when used in a SOW, any record in Client’s Data Warehouse post Standardization that contains the email address (including a valid domain name), phone number (including10-digit phone number), or mailing address (including house or building number, street name, city, state and zip code) of a person.
“Confidential Information” means (i) for Provider, pricing and other Platform terms, software license keys or passwords that Provider may provide Client, know-how, audit and security reports, product development plans, data center designs, or other proprietary information or technology provided to Client (including Software), whether prior to or during the Term of this Agreement; (ii) for Client, any Client Data, whether obtained prior to or during the Term of this Agreement; and (iii) for each of Client and Provider, trade secrets, or any information that a Party reasonably considers to be confidential, including, without limitation, (x) the terms of this Agreement, and (y) technical data, product design and development, source code and source code documentation, operations manuals, implementation guides, business operations and plans, sales information, quantity and kind of licenses sold, prices and methods of pricing, marketing techniques and plans, unannounced products, product and process information and any other information of either Party which is designated as “confidential”. Information that is a part of or enters the public domain, is independently developed by a Party, or otherwise is made available to a Party other than through a violation of confidentiality will not be considered Confidential Information.
“Custodian” shall mean any third party that has custody and/or control of Client Data that Client seeks to have Provider include in the Platform.
“Dashboard Module” shall mean digital visualizations of Client Data as part of the Platform.
“Data Discovery” shall mean Services by which Provider will review sources of Client Data to enable a Data Warehouse build. As part of such Services, each data source will be analyzed to define file layouts, data dictionaries, data flows and business rules.
“Data Warehouse” shall mean a database that consolidates, stores, and maintains Client Data from one or more data sources.
“Deliverables” shall mean those deliverables provided by Provider to Client pursuant to Services, and as more particularly set forth in a SOW.
“Delivery” shall have the meaning set forth in Section 2.1.
“Direct Database” shall mean a database within the Platform, separate from the Portal, that stores certain Client-related data and information.
“Fee(s)” shall mean those fees paid by Client to Provider, and more specifically set forth in a SOW.
“Feedback” shall have the meaning set forth in Section 5.4.
“Force Majeure” shall have the meaning set forth in Section 9.8.
“Materially Adverse Effect” means, with respect to a particular Party, any change following the Effective Date, event or effect that, individually or in the aggregate, has had or is reasonably expected to have a material adverse effect upon (i) the business, operations, assets (including intangible assets), liabilities, condition (financial or otherwise), property, prospects or results of operation of such Party, (ii) the validity or enforceability of this Agreement, or (iii) the ability of such Party to perform its obligations or exercise its rights under this Agreement.
“Party” shall mean each of Client and Provider; “Parties” shall collectively refer to Client and Provider.
“Personal Data” has the meaning ascribed to such term in the DPA.
“Platform” means the on-demand, web-based data analytics and warehousing system made available to Client by Provider via a Subscription, including the Software. Provider will host and operate the Platform on computer servers accessible by Client over the internet.
“Platform Client Services” shall mean training, aid, and problem solving pertaining to the use and navigation of the Platform.
“Platform Implementation Services” shall include but are not limited to, discovery, design and implementation of a Data Warehouse, Dashboard Modules and Analytics Models, Bi-Directional Data Feeds and those implementation services more particularly described in a SOW.
“Platform Renewal Term” shall have the meaning set forth in Section 4.1.
“Platform Services” means Services that relate to the licensing of the Platform for use by Client, and include but are not limited to Platform Implementation Services, Platform Subscription Services, Platform Client Services, Platform Training Services, and regular updating and maintenance of the Platform.
“Platform Subscription Services” shall mean those Services provided by Provider during the Platform Subscription Term, and more particularly described in a SOW.
“Platform Subscription Term” shall have the meaning set forth in Section 4.1.
“Platform Training Services” shall mean Services by which Provider works to provide Client with introductory training and tutorials pertaining to the use of the Platform. These Services may come in the form of pre-made digital tutorials or real-time training sessions.
“Portal” shall mean the user interface made available to Authorized Users to access certain Deliverables in the KAGR Platform, such as dashboards and reports.
“Processing” (including any grammatically inflected forms thereof) shall mean any operation or set of operations which is performed on data or on sets of data, whether or not by automated means or manual means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure (including by transmission), analysis, deletion, modification, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, including the actions of a person directing a third party to Process data on behalf of such person.
“Provider Standard Documentation” shall have the meaning set forth in Section 9.14.
“Reimbursable Expenses” shall mean all reasonable out-of-pocket and documented travel, lodging, food and communication expenses incurred by the Provider while performing the Services.
“Sensitive Data” has the meaning ascribed to such term in the DPA.
“Services” shall mean those services provided (or to be provided) by Provider to Client under this Agreement, including the Platform and the Platform Services and any other services described in a SOW.
“Software” means any software, library, tool or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Provider in connection with the Platform. Software includes software locally installed on local systems (e.g. iPads) and software accessed through the internet or by other remote means including websites, portals and cloud-based services to utilize the Platform in accordance with this Agreement.
“Standardization” shall mean the process of checking syntax and format for specified data fields and cleansing, as appropriate. Data fields include those related to email, name, address, company and phone number (for example: email address, prefix, first name, last name, suffix, address 1, address 2, city, state, zip, country, company name, phone number). Validation on these data fields includes, but is not limited to, checks such as: email domain verification, email syntax error, U.S. Postal Service preferred city.
“Statement of Work” or “SOW” means a statement of work in a form acceptable to Client that makes specific reference to this Agreement and is executed by Provider and Client.
“Subscription” means the right of Authorized Users to access the Platform during the Platform Subscription Term.
“Term” shall have the meaning set forth in Section 4.1.