This Master Services Agreement is entered into as of the date of last signature (the “Effective Date”) by and between NAVEX Global, Inc., a Delaware corporation, having its principal place of business at 5500 Meadows Road, Suite 500, Lake Oswego, Oregon 97035 (“NAVEX”), and the entity signing the Order Form into which this MSA is incorporated (“Client”). Any references to the “MSA” shall include the General Terms and Conditions below and any Order Form (as defined below). In consideration of the mutual covenants and conditions contained in this MSA and intending to be legally bound, the parties agree as follows:
GENERAL TERMS AND CONDITIONS
1.0 Definitions.
1.1 “Agreement” means this MSA and all Order Forms, Change Orders, and attachments incorporated hereunder.
1.2 “Applicable Law” means any law, rule, or regulation applicable to a party.
1.3 “Affiliate” means an entity controlling, controlled by, or under common control with a party to this MSA, where “control” means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
1.4 “Benchmarking Statistics” means analysis and reporting with respect to the effectiveness of and any trends in corporate ethics and compliance programs according to industry, company size, country, geographic region, or other relevant classification. Benchmarking Statistics are completed through the collection of compiled data, incorporating Client information, which shall not identify Client or any User (as defined below) and which shall be aggregated with other data collected from other NAVEX customers.
1.5 “Change Order” is a simplified ordering document used for one-time, non-recurring fees.
1.6 “Client” means the entity that has entered into this MSA with NAVEX and includes any Affiliates authorized to use the Services in accordance with Section 2.3 (Affiliates).
1.7 “Client Data” means any data and information Client provides, generates, transfers, or makes available to NAVEX under the Agreement, whether in printed, electronic, or other format.
1.8 “Client Property” shall include all of Client’s copyrights, trademarks, patent rights, and other intellectual property rights or proprietary rights recognized in any jurisdiction in the world in any and all Client Data, materials, and logos provided under the Agreement, and any and all derivative works flowing from any of the foregoing.
1.9 “Confidential Information” means any information disclosed at any time by either party, its directors, officers, employees, and agents (collectively, “Representatives”), to the other party or its Representatives in anticipation of or during the parties’ relationship, either directly or indirectly, in writing, orally, or by inspection of tangible objects that pertain to such party’s business, including, without limitation, information concerning technical, marketing, planned functionality, market strategies, financial, employee, planning, product roadmaps, service or product purchase, performance agreements and documentation, performance results, pricing, and other confidential or proprietary information, including information a reasonable person would understand to be confidential or proprietary. Confidential Information of either party will not, however, include any information that (i) was publicly known and that the disclosing party made generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and that the disclosing party made generally available after disclosure to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party without a breach of any third party’s obligations of confidentiality at the time of disclosure by the disclosing party, the burden of proof of prior possession being on the party asserting such prior possession; (iv) the receiving party obtains from a third party without a breach of such third party’s obligations of confidentiality; or (v) the receiving party independently develops without use of or reference to the disclosing party’s Confidential Information, the burden of proof of independent development being on the party asserting such independent development.
1.10 “Content” means materials that NAVEX provides or posts in connection with the Services, including, without limitation, training courses, text, images, graphics, sound recordings, and videos and modifications, enhancements, or new versions thereof.
1.11 “Error” means a material failure of a Service to conform to its functional specifications, as described in the Technical Documentation, that Client reports to NAVEX and that NAVEX is able to replicate.
1.12 “Exclusions” means (i) components or content (including in combination with the Services) that NAVEX does not provide; (ii) unauthorized use or use of the Services other than in accordance with the Technical Documentation and the Agreement; or (iii) viruses, malicious software, or other disruptive programs or applications that Client or its agents or Users introduce or which are introduced as a result of any of Client’s uses of the Services.
1.13 “Hosting Infrastructure” means hosting and management of the SaaS Offering, including obtaining and maintaining all computer hardware, software, communications systems, network, and other infrastructure.
1.14 “Indemnified Party” means a party with a valid claim for indemnification pursuant to Section 9.0 (Indemnification) and who seeks indemnification from the other party pursuant to Section 9.3 (Mutual Obligations).
1.15 “Indemnifying Party” means a party from whom indemnification is being sought pursuant to Section 9.3 (Mutual Obligations).
1.16 “Initial Term” means the initial period of time in which NAVEX provides Services to Client.
1.17 “Legal Process” means a subpoena, request for production of documents, court order, or requirement of a governmental agency to disclose any information or respond to an official inquiry.
1.18 “Losses” means costs and expenses (including reasonable attorneys’ fees and disbursements), liability, and costs from suits, actions, or proceedings threatened, made, or brought by any third party in connection with any and all allegations, claims, or demands.
1.19 “Master Services Agreement” and “MSA” each mean this document (exclusive of Order Forms and Change Orders), which establishes the general terms and conditions to which the parties have agreed in order to facilitate the provision of Services.
1.20 “NAVEX Intellectual Property” means any and all intellectual property recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed, or recorded, including, without limitation: inventions, technology, patent rights (including patent applications and disclosures), the Services, copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, logic, coherence and methods of operation of systems, and training methodology and materials that NAVEX has created, acquired, or otherwise has rights in and may, in connection with the performance of Services hereunder, create, employ, provide, modify, acquire, or otherwise obtain rights in.
1.21 “Notice” means written notification to a party that shall be sent via email only, unless otherwise indicated herein. Any Notice to NAVEX shall be sent to legalnotice@navexglobal.com.
1.22 “Order Form” means the document(s), regardless of actual name, that the parties execute that incorporates by reference the terms and conditions of this MSA, describe Client’s order-specific information, and contain Service-specific terms, such as description of Services ordered, Subscription Metrics, and fees. The definition of “Order Form” includes Change Order.
1.23 “Personal Data” means any information relating to an identified or identifiable natural person. An “identifiable natural person” is one who can be identified directly or indirectly, in particular by reference to one or more identifiers, such as a name, an identification number, location data, online identifier, or to any other factor specific to the individual.
1.24 “Renewal Term” means a term that is equal in length to the Initial Term.
1.25 “SaaS Offering” means the proprietary governance, risk, and compliance software-as-a-service offering identified in an Order Form that NAVEX makes available to Client online via a Uniform Resource Locator (URL).
1.26 “Sanctions Investigation” means any investigation by the Office of Foreign Assets Control, Department of the Treasury (OFAC), or any other Governmental Authority pursuant to any laws that OFAC or any other Governmental Authority administers.
1.27 “Service” or “Services” means, collectively, the SaaS Offering and any other services set forth in an Order Form.
1.28 “Subscription Metrics” means the limitation on usage of Services as designated and/or defined on the applicable Order Form, or the financial metric used to calculate applicable fees. Subscription Metrics are designated by a term such as the number of “users,” “employees,” “reports,” and the like.
1.29 “Support” means support for the SaaS Offering in accordance with the schedule detailed in the following webpage: https://www.navexglobal.com/ClientCareProblemSupport, as NAVEX may update from time to time.
1.30 “Taxes” include, without limitation, any direct or indirect taxes, levies, duties, or similar governmental assessments, including value-added, use, or withholding taxes. Taxes shall not include any taxes on NAVEX’s net income.
1.31 “Technical Documentation” means the user instructions, release notes, manuals, and on-line help files that describe the operation of a Service in the form generally made available to NAVEX customers, as may be updated from time to time.
1.32 “Term” means the period of time in which NAVEX provides Services to Client. The Initial Term and Renewal Terms are collectively referred to herein as the “Term.”
1.33 “User” means any employee or non-employee who Client authorizes to use the Services and is accounted for in the Subscription Metrics of an Order Form.
**2.0 Purpose and Scope. **
2.1 Master Services Agreement. This MSA establishes the general terms and conditions to which the parties have agreed with respect to NAVEX’s provision of the Services to Client. Additional Service-specific terms and conditions are set forth in one (1) or more Order Forms.
2.2 Order Forms. Client’s execution of an Order Form constitutes a binding commitment to purchase the items specified in such Order Form under the terms and conditions of this MSA and such Order Form.
2.3 Affiliates. Client may authorize its Affiliates’ use of the Services provided that the combined use of the Services hereunder by Client and its Affiliates shall not in any event exceed the Subscription Metrics authorized under the applicable Order Form(s). Furthermore, Client (i) represents that it has the authority to bind such Affiliate(s) to the terms and conditions of the Agreement, (ii) guarantees any such Affiliate’s performance of all terms and obligations of the Agreement, and (iii) agrees to comply with any injunction arising out of any Affiliate’s breach of this Agreement. Client shall be responsible for all use and access of the Services by any Affiliate.
2.4 Order of Precedence. To the extent any terms and conditions of this MSA conflict with the terms and conditions of an Order Form, the terms and conditions of the Order Form shall control, unless otherwise stated in the Order Form.
2.5 Definitions. Unless defined in this MSA, capitalized terms have the meaning ascribed to them in Section 1.0 (Definitions).
**3.0 Services. **
3.1 Generally. Subject to Client’s compliance with the Agreement and timely payment of the applicable fees, NAVEX shall provide the Services described in any Order Form(s).
3.2 Grant of Use. During the Term, and subject to timely payment of applicable fees and Client’s compliance with the Agreement, NAVEX grants Client a non-transferable, non-assignable, worldwide right to access and use the SaaS Offering for Client’s internal use for purposes of managing and coordinating information. Client’s use is limited by the Subscription Metrics identified in the applicable Order Form. The SaaS Offering is provided on a subscription basis and Client will not independently possess, install, or utilize the software NAVEX uses to provide the SaaS Offering.
3.3 Online Access; Environment; Hosting Infrastructure. NAVEX will provide Client online access to and use of the SaaS Offering in accordance with the Order Form and the Technical Documentation. Client will access the SaaS Offering by use of a Client-provided browser. NAVEX is responsible for the Hosting Infrastructure necessary to permit Client and Users to access and use the SaaS Offering, either directly or through its designated third party supplier or data center. NAVEX will manage and install within the Hosting Infrastructure all updates and upgrades that NAVEX makes generally available to its customers for the SaaS Offering. Client is solely responsible for obtaining and maintaining, at its own expense, all equipment needed to access the SaaS Offering, including, without limitation, internet access and adequate bandwidth.
3.4 Changes. Access is limited to the version of the Services in NAVEX’s production environment. NAVEX regularly updates Services and reserves the right to discontinue, add, and/or substitute functionally equivalent features in the event of Service unavailability, end-of-life, or changes to software requirements.
3.5 Acceptable Use. Client acknowledges and agrees that NAVEX does not monitor or evaluate Client Data transmitted through the Services, and NAVEX shall not be responsible for the content of any Client Data. Client shall use the Services exclusively for authorized and legal purposes, consistent with all Applicable Laws and NAVEX’s Privacy Policy (https://www.navexglobal.com/privacy-statement), as may be amended from time to time. Client is solely responsible and liable for (i) making sure that the disclosure and use of data, content, and information that Client provides to NAVEX does not violate any Applicable Law or infringe upon the rights of any third party; (ii) ensuring the appropriate use of any reports and other materials prepared by NAVEX in a manner that will not violate any Applicable Law or infringe upon the rights of any third party; and (iii) all acts and omissions of any Users. Client agrees not to post or upload any content or data which (a) violates the rights of others, such as data that infringes on any intellectual property rights or violates any right of privacy or publicity; or (b) otherwise violates any Applicable Law.
3.6 Security. NAVEX will implement commercially reasonable and appropriate measures designed to secure Client Data against accidental or unlawful loss, access, or disclosure. NAVEX will be responsible for ensuring the security and confidentiality of account names and passwords residing within its systems and while being received and processed by the SaaS Offering for the purpose of permitting access thereto, and Client is responsible for instructing Users on the confidentiality of account names and passwords. Client agrees to promptly notify NAVEX if account names or passwords are lost, stolen, or otherwise compromised. Client will not (i) breach or attempt to breach the security of the Services or of any network, servers, data, computers, or other hardware relating to or used in connection with the SaaS Offering, or of any third party that is hosting or interfacing with any part of the SaaS Offering; or (ii) use or distribute through the SaaS Offering any software, files, or other tools or devices designed to interfere with or compromise the privacy, security, or use of the SaaS Offering or the operations or assets of any other customer of NAVEX or any third party. Client will comply with the user authentication requirements for use of the SaaS Offering. Client is solely responsible for monitoring the administration of access to and use of the SaaS Offering by its Users. Any failure by a User to comply with the Agreement shall be deemed to be a material breach by Client, and NAVEX shall not be liable for any damages that Client or any third party incurs resulting from such breach. Client must immediately take all necessary steps, including providing Notice to NAVEX, to affect the termination of an access identification for any User if there is any compromise in the security of that access identification or if unauthorized use is suspected or has occurred.
3.7 Support. During the Term of a SaaS Offering, NAVEX will provide Support. However, NAVEX is not under any obligation to provide Support with respect to (i) SaaS Offering(s) that have been altered or modified by anyone other than NAVEX or its licensors; (ii) SaaS Offering(s) used other than in accordance with the Technical Documentation and the Agreement; (iii) discrepancies that do not significantly impair or affect the operation of the Services; or (iv) errors and/or malfunctions caused by any systems or programs not supplied by NAVEX.
3.8 Cooperation. Client shall provide NAVEX with good faith cooperation as NAVEX may reasonably require in order to provide the Services, including, without limitation, providing security access, information, and software interfaces to Client’s applications and Client personnel as may be reasonably requested by NAVEX from time to time. Client acknowledges and agrees that NAVEX’s performance is dependent upon the timely and effective satisfaction of Client’s responsibilities hereunder and timely decisions and approvals of Client in connection with the Services. NAVEX shall be entitled to rely on all decisions and approvals of Client.
**4.0 Proprietary Rights. **
4.1 Client Property and Data. All rights not expressly granted to NAVEX are reserved exclusively by Client and its licensors; there are no implied rights. Except as specifically provided herein, NAVEX may not obscure, alter or remove any copyright, patent, trademark, service mark, or proprietary rights notices on any Client materials. NAVEX agrees that its use of any of Client’s trademarks or service marks will inure solely to the benefit of Client and NAVEX will not at any time acquire any rights in Client’s trademarks or service marks. Client shall retain all right, title, and interest in Client Property. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use of all such Client Property. Client grants NAVEX, for the Term, a limited, non-exclusive, worldwide, non-transferable, royalty-free license to reproduce, transmit, perform, copy, display, distribute, create derivative works of (solely with respect to Client Data and only for formatting purposes), and otherwise use any and all Client Property for the sole and limited purpose of delivering the Services to Client.
4.2 NAVEX Intellectual Property. All equipment, Hosting Infrastructure, websites, and other materials that NAVEX provides in the performance of Services and any and all other NAVEX Intellectual Property will at all times remain the exclusive, sole, and absolute property of NAVEX or its licensors. Client does not acquire any right, title, or interest in or to such equipment, materials, or NAVEX Intellectual Property. All rights not expressly granted to Client are reserved exclusively by NAVEX and its licensors; there are no implied rights. Client may not obscure, alter, or remove any copyright, patent, trademark, service mark, or proprietary rights notices on any NAVEX materials. Client agrees that any use of any of NAVEX’s trademarks or service marks will inure solely to the benefit of NAVEX and that Client will not at any time acquire any rights in NAVEX’s trademarks or service marks. Client shall not take any action that jeopardizes NAVEX’s Intellectual Property Rights in the Services, nor acquire any right in the Services, except for the limited-use rights specified in this MSA.
4.3 Restrictions. Client shall not itself, or through any Affiliate, employee, consultant, contractor, agent, or other third party, (i) sell, resell, distribute, host, lease, rent, license, or sublicense, in whole or in part, the Services; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer, or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure, or other elements of the Services, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge, or make available the Services to anyone other than Users; (iv) write or develop any derivative works based upon the Services; (v) modify, adapt, tamper with, or otherwise make any changes to the Services or any part thereof; (vi) create internet links to or from the Services, or frame or mirror any Content; (vii) use the Services to provide processing services to third parties, or otherwise use the same on a service bureau basis; (viii) use the Services in a manner not authorized under the Technical Documentation or the Agreement, or in violation of any Applicable Law; or (ix) use the Services, or permit them to be used, for purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without NAVEX’s prior written consent. Despite the foregoing, pursuant to Applicable Law, Client may use NAVEX’s name in internal or regulatory communications pertaining to Client’s agreement to use NAVEX’s Services.
4.4 Commercial Item. The SaaS Offering and any accompanying Technical Documentation and related software were developed by NAVEX and its suppliers at private expense and are deemed to be a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Use, duplication, and disclosure by civilian agencies of the U.S. Government will be in accordance with FAR 52.227-19(c) or other agency data rights provisions, as may be applicable.
5.0 Privacy.
5.1 Personal Information and Data. Client acknowledges and agrees that NAVEX will collect, process, use, and/or store certain Personal Data. NAVEX (i) has established and shall maintain appropriate technological security measures to protect against unauthorized access to any Personal Data that is stored within the Hosting Infrastructure; (ii) shall not utilize Personal Data for any purpose other than to provide Services; (iii) shall not disclose any Personal Data to any person not authorized by Client, except as necessary to comply with Applicable Law; (iv) will act solely on the instructions of Client in respect of all Personal Data, unless otherwise prohibited by Applicable Law; and (v) will promptly inform Client in a timely manner of any confirmed security breach regarding disclosure of Personal Data, complaint concerning disclosure, or other unauthorized use of Personal Data. NAVEX is certified by the US Department of Commerce under the EU – U.S. Privacy Shield Framework and U.S.-Swiss Safe Harbor Framework (collectively the “Frameworks”) so as to ensure that adequate safeguards are adduced with respect to the protection of privacy and fundamental rights and freedoms of individuals located in the European Economic Area and Switzerland for the transfer of any Personal Data by Client to NAVEX. NAVEX intends to certify under the Swiss-U.S. Privacy Shield Framework when the Department of Commerce makes certification that available and the reference herein to the U.S.-Swiss Safe Harbor shall be replaced with the Swiss-U.S. Privacy Shield at that time. Accordingly, NAVEX agrees to process any such Personal Data in compliance with the Frameworks. The parties agree that they will work together in good faith to enter into any additional agreements that may be legally required by either party to ensure compliance with Applicable Law, particularly in regard to applicable data privacy laws. All NAVEX subcontractors with access to Personal Data will be contractually required to comply with Applicable Law and Frameworks, where applicable, and will be bound to obligations of confidentiality, privacy, and security. NAVEX shall be responsible for any non-compliance by such subcontractors.
5.2 Data Aggregation. Client hereby authorizes NAVEX to access and compile specific Client information collected in the performance of Services; however, the compiled data incorporating Client information shall not identify Client or a User, and shall be aggregated with data collected from other NAVEX customers to create statistical benchmarking data. This benchmarking data will be used for the purpose of Benchmarking Statistics or for other uses as NAVEX may decide. Client may access the Benchmarking Statistics by purchasing NAVEX’s Integrity Diagnostics and/or Performance Benchmarking Services.
**6.0 Fees and Payment. **
6.1 Fees. Fees are set forth in the applicable Order Form and are based on the applicable Subscription Metrics. All fees are in United States Dollars and are non-refundable and non-cancellable. Beginning with the second annual period of the Term, NAVEX may, upon sixty (60) calendar days’ prior Notice, increase the fees, effective as of each annual anniversary of the Order Form effective date. All invoices and fee increase notices from NAVEX shall be sent via email to the email address indicated in the applicable Order Form, unless otherwise specified herein.
6.2 Payment. Unless otherwise specified in the Order Form, all payment obligations start from the execution of the Order Form, with payment of all an Order Form’s fees due within thirty (30) calendar days following the invoice date. Except as otherwise expressly specified in the Order Form, Client shall send such payment to the address included on the invoice, and such payments shall be made in United States Dollars. Interest accrues on past due balances until paid at the lesser of (i) one and one-half percent (1.5%) per month, and (ii) the highest rate allowed by law. Client shall reimburse NAVEX for expenses incurred, including interest, court costs, and reasonable attorneys’ fees, in collecting amounts due to NAVEX hereunder that are not under good faith dispute by Client. NAVEX will be entitled to require Client to pay all outstanding fees in full before NAVEX renders any additional performance and before NAVEX allows Client to purchase any additional Services.
6.3 Taxes. Except as otherwise specified in an Order Form and except for any taxes on NAVEX’s net income, all fees for the Services exclude Taxes. Client is responsible for paying all Taxes associated with Client’s purchases hereunder. If NAVEX has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides NAVEX with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.4 Subscription Metrics. Client may increase its Subscription Metrics at any time during the current Term at then-prevailing prices. Additional Subscription Metrics will be coterminous with the current Term. Client may decrease Subscription Metrics at any time, but NAVEX shall not issue any refunds or reduce fees payable through the end of the current Term.
6.5 Additional Service Fees. Additional Subscription Metrics must be purchased at NAVEX’s then-prevailing prices in the event actual usage exceeds the current Subscription Metrics. At all times during the Term, Client shall be responsible for ensuring sufficient Subscription Metrics to accommodate one hundred percent (100%) of its usage of the Services.
6.6 Travel and Lodging Expenses. NAVEX’s reasonable travel and lodging expenses that NAVEX incurs in the performance of Services will be invoiced separately, in accordance with NAVEX’s applicable travel policy.
**7.0 Term and Termination. **
7.1 MSA Term. This MSA shall remain in effect until terminated, as set forth herein, or until the expiration or termination of all Order Forms.
7.2 Services Term. The Initial Term for each Service purchased, and any renewal rights or extensions, will be as set forth in the applicable Order Form. Unless otherwise provided in the applicable Order Form, the Term of a SaaS Offering shall automatically renew for the same duration as the immediately preceding Term unless a party gives Notice to the other party of its intention not to renew at least thirty (30) calendar days prior to the expiration of the current Term.
7.3 Suspension of Services and Termination. If any fees which are not disputed by Client in good faith are more than thirty (30) calendar days past due, NAVEX will have the right, in addition to all other rights and remedies available to it, to suspend delivery of, or access to, the Services or terminate the Agreement upon the expiration of ten (10) calendar days’ Notice. Additionally, the Agreement may be terminated (i) by either party if the other party materially breaches the Agreement and does not cure the breach within thirty (30) calendar days after receiving Notice thereof from the non-breaching party; (ii) as set forth in Section 8.4 (Infringement Remedies); (iii) as set forth in Section 13.7 (Compliance with Law); or (iv) if the other party becomes insolvent (generally unable to pay its debts as they become due) or the subject of a bankruptcy, conservatorship, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors.
7.4 Partial Termination. Where a party has rights to terminate the Agreement pursuant to Section 7.3 (Termination), the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Order Form. Order Forms that are not terminated shall continue in full force and effect under the terms of this MSA.
7.5 Effects of Termination or Partial Termination. Upon any termination, without prejudice to any other rights or remedies that the parties may have, all rights licensed and obligations required hereunder shall immediately cease, except as otherwise provided. Each party may retain, subject to this MSA, copies of Confidential Information required for internal record keeping purposes and for compliance with Applicable Law. Upon expiration or termination of this MSA or an Order Form, NAVEX shall have the right, but not the obligation, to delete all Client Data unless otherwise agreed to under the Order Form. If NAVEX terminates the Agreement or an Order Form for Client’s non-payment, Client agrees that it shall remain responsible for all outstanding fees payable to NAVEX for the current Term and NAVEX may declare all such fees immediately due and payable. Client acknowledges that such amounts are liquidated damages reflecting a reasonable measure of actual damages and not a penalty.
8.0 Warranties and Disclaimers.
8.1 NAVEX Services Warranty. NAVEX warrants that (i) the SaaS Offering, as updated in accordance with Section 3.4 (Changes) and when used in accordance with the current Technical Documentation, will perform in all material respects, as specified in such Technical Documentation during the applicable Term; (ii) all Services will be performed in a professional manner, in accordance with industry standards; and (iii) NAVEX will not design its systems to include any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines,” or other similar computer software routines. In the event of any breach of Section 8.1(i), NAVEX shall diligently endeavor to remedy any Errors during the applicable Term; the foregoing shall be Client’s sole remedy, and shall be NAVEX’s sole liability, for any uncured breach of Section 8.1(i). NAVEX shall not be obligated to correct Errors resulting from any Exclusions.
8.2 Client Warranties. Client represents and warrants that (i) Client and Users are authorized to provide all Client Data and any other data and information submitted to the Services; (ii) Client’s and Users’ use of the Services and provision of Client Data will comply with all Applicable Laws; (iii) NAVEX’s use of Client Data in providing the Services will not infringe the intellectual property or other proprietary rights of any third party; (iv) Client will be responsible for promptly obtaining and providing to NAVEX all third-party licenses and consents required for Client to use the Services; and (v) Client will not modify or create derivative works based on the SaaS Offering or any other Services, or attempt to decode, decipher, decompile, disassemble, or reverse engineer the SaaS Offering or any other Services or deliverables.
8.3 Mutual Warranties. Each party represents and warrants the following: (i) the execution, delivery, and performance of this MSA has been and shall be duly authorized by the executing party; (ii) the executing party’s performance of its obligations will not conflict with, result in a breach of, or constitute a default under any other material agreement to which that party is bound; and (iii) the executing party is in material compliance with all Applicable Laws with regard to its obligations under this MSA.
8.4 Infringement Remedies. If the SaaS Offering infringes or if NAVEX believes that the SaaS Offering infringes on the intellectual property or proprietary rights of a third party, NAVEX may, in its sole discretion, (i) modify the SaaS Offering to be non-infringing, (ii) obtain for Client a license to continue using the affected SaaS Offering, or (iii) if neither (i) nor (ii) are practical in NAVEX’s sole judgment, terminate the affected SaaS Offering and return to Client the unused portion of any fees paid for the affected SaaS Offering. Subject to the parties also meeting their express indemnification obligations under this MSA, NAVEX’s satisfactory performance of any one or all of the remedies set forth in the preceding sentence shall be Client’s sole and exclusive remedy for NAVEX’s breach of the infringement warranty or for any damages incurred from early termination of the applicable Order Form due to a third-party infringement claim.
8.5 Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8.5 AND THOSE EXPRESSLY SET FORTH IN AN ORDER FORM, ALL SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND NAVEX DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE SERVICES, DELIVERABLES, MARKS, OR NAVEX’S PERFORMANCE UNDER THE AGREEEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, NAVEX DOES NOT MAKE ANY PROMISE (i) AS TO THE SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICES; (ii) AS TO ANY THIRD-PARTY PROVIDER OR ANY OF ITS SERVICES, WHETHER OR NOT NAVEX MAY HAVE DESIGNATED IT OR ITS SERVICES AS “CERTIFIED,” “VALIDATED,” OR OTHERWISE, EXCEPT ANY SUBCONTRACTORS THAT NAVEX HAS CONTRACTED TO PERFORM SERVICES IN ACCORDANCE WITH THIS MSA AND APPLICABLE ORDER FORM; (iii) THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; OR (iv) THAT ALL ERRORS OR DEFECTS SHALL BE CORRECTED. NAVEX EXPRESSLY DOES NOT WARRANT THAT THE SERVICES MEET THE SPECIFIC REQUIREMENTS OF ANY FEDERAL, PROVINCIAL, STATE, OR LOCAL LAWS, REGULATIONS, OR GUIDELINES. CLIENT ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES PROVIDED HEREUNDER TO ACHIEVE ITS INTENDED RESULTS.
8.6 Additional Disclaimers and Agreements.
i. LEGAL SERVICES. NAVEX IS NOT ENGAGED IN THE PRACTICE OF LAW. IN THE PROVISION OF SERVICES, CERTAIN ISSUES MAY ARISE THAT ARE QUASI-LEGAL IN NATURE. ANY STATEMENTS OR ASSISTANCE NAVEX PROVIDES IN THESE MATTERS SHOULD BE INTERPRETED AS OPINIONS OR ADVICE CONCERNING BUSINESS ISSUES TO BE CONSIDERED IN CONNECTION WITH THE SERVICES. CLIENT REPRESENTS AND WARRANTS IT IS NOT RELYING UPON NAVEX TO PROVIDE LEGAL SERVICES.
ii. USE. CLIENT AGREES AND ACKNOWLEDGES THAT IT IS FULLY RESPONSIBLE FOR ITS USE OF THE SERVICES. NAVEX EXPRESSLY DISCLAIMS ANY LIABILITY AS A RESULT OF CLIENT’S USE OF THE SERVICES OR CLIENT’S ACTIONS OR INACTIONS WITH RESPECT TO ANY INFORMATION DERIVED THEREFROM, EXCEPT WHERE SUCH LIABILITY FIRST AROSE AS A DIRECT RESULT OF NAVEX’S (a) MATERIAL BREACH OF THIS MSA, OR (b) GROSSLY NEGLIGENT ACT OR OMISSION IN DELIVERING THE SERVICES. NAVEX WILL NOT BE RESPONSIBLE FOR PAYMENT OF ANY FINES ASSESSED AGAINST CLIENT OR ITS USERS BY ANY REGULATORY AUTHORITY FOR CLIENT’S FAILURE TO COMPLY WITH STATUTORY OR REGULATORY REQUIREMENTS OF ANY KIND.
9.0 Indemnification.
9.1 By NAVEX. NAVEX will indemnify and defend Client and its officers, directors, employees, and agents against any Losses to the extent such Losses relate to or arise from a claim that the SaaS Offering infringes or misappropriates any third-party intellectual property rights. NAVEX’s obligations in this Section 9.1 do not apply (i) to the extent that the allegedly infringing SaaS Offering, portions or components thereof, or modifications thereto result from any change made by Client or any third party for Client; (ii) if the infringement claim could have been avoided by using an unaltered current version of a SaaS Offering that NAVEX provided; (iii) to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by NAVEX, or any material from a third-party portal or other external source that is accessible to Client within or from the SaaS Offering (e.g., a third-party Web page accessed via a hyperlink) or a third-party product; (iv) to the extent that an infringement claim is based upon the combination of any material with any products or services not provided by NAVEX; or (v) to the extent that an infringement claim is caused by Client providing to NAVEX materials, designs, know-how, software, or other intellectual property with instructions to NAVEX to use the same in connection with the SaaS Offering.
9.2 By Client. Client will indemnify and defend NAVEX and its officers, directors, employees, and agents against any and all Losses to the extent such Losses relate to or arise from (i) a claim that Client Property infringes or misappropriates any third-party intellectual property rights; (ii) from all Taxes for which Client is liable; or (iii) Client’s use of the Services, provided that such use is the sole and proximate cause of the request for indemnification under this subsection.
9.3 Mutual Obligations. The Indemnifying Party shall provide indemnification to the Indemnified Party under Sections 9.1 (By NAVEX) and 9.2 (By Client) of this MSA, as the case may be, only on the following conditions. The Indemnified Party must promptly provide the Indemnifying Party with Notice of any claim, promptly tender control of the defense and settlement of any such claim to the Indemnifying Party (at the Indemnifying Party’s expense and with the Indemnifying Party’s choice of counsel); provided, however, that the failure to give such Notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that such Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall cooperate fully with the Indemnifying Party at the Indemnifying Party’s request and expense in defending or settling such claim, including, without limitation, providing any information or materials necessary for the Indemnifying Party to perform the foregoing. The Indemnifying Party will not enter into any settlement or compromise of any such claim without the Indemnified Party’s prior written consent if the settlement would require admission of fault or payment by the Indemnified Party.
**10.0 Confidential Information. **
10.1 Disclosure of Confidential Information. Both NAVEX and Client shall (i) hold all Confidential Information in confidence and use it only as permitted in connection with the Services provided under the Agreement; (ii) use the same care to prevent unauthorized disclosure of the disclosing party’s Confidential Information as the receiving party uses with respect to its own Confidential Information of a similar nature and shall not, in any case, be less than the care a reasonable business person would use under similar circumstances; (iii) disclose only the Confidential Information required to comply with a court order or Applicable Law and in conjunction with fulfilling obligations under Section 10.3 (Legal Process); and (iv) only disclose the Confidential Information to its Representatives who have a need to know such information in order to perform their job, have been informed of its confidential nature, and have agreed to, and are bound by, no less restrictive confidentiality obligations than those in this MSA. Each party shall be liable for their respective Representative’s breach of this MSA. Confidential Information shall not be disclosed to third parties without the other party’s prior written consent unless required by Applicable Law.
10.2 Injunctive Relief. Each party acknowledges that a party’s actual or threatened breach of its confidentiality obligations under this Section 10.0 would likely cause irreparable harm to the non-breaching party that could not be fully remedied by monetary damages. Each party, therefore, agrees that the non-breaching party may seek such injunctive relief or other equitable relief as may be necessary or appropriate to prevent such actual or threatened breach without the necessity of proving actual damages. Each party waives the requirement to post a bond in the event of such actual or threatened breach.
10.3 Legal Process. If either party receives notice of Legal Process, the recipient thereof shall, if permitted by law, give prompt Notice to the other party so the other party may move for a protective order or other relief. If either party is required to respond to or support such Legal Process involving the other party (but not where the parties are adverse to one another), the responding party shall be entitled to recover from the other party all reasonable costs, fees, and expenses that the responding party incurs, including reasonable time expended by internal resources and reasonable attorneys’ fees. Client agrees to cooperate fully with NAVEX to respond to any notice or inquiry from a third party related to Client Data or Client’s use of the Services.
**11.0 Liability Exclusions and Limitations. **
11.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR (I) BREACHES OF CONFIDENTIALITY OBLIGATIONS, (II) VIOLATIONS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (III) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, OR (IV) PAYMENT OF FEES, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER FORESEEABLE OR NOT, AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR (i) BREACHES OF CONFIDENTIALITY OBLIGATIONS, (ii) VIOLATIONS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (iii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, OR (iv) PAYMENT OF FEES, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER IN CONNECTION WITH THE AGREEMENT SHALL NOT EXCEED THE AGGREGATE CONTRACT VALUE FOR THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
11.3 Time Limit for Bringing Action. No claim or action, regardless of form, arising out of the Agreement, other than a claim or action relating to a breach of confidentiality or infringement, may be brought by either party more than two (2) years after the cause of action has arisen.
**12.0 Governing Law. ** Any dispute between the parties related to the Agreement will be governed by the substantive and procedural rules of Delaware, without regard to conflict of law principles. The parties agree to submit to the exclusive jurisdiction of and venue in the state and federal courts of Multnomah County, Oregon, and each party waives any claims it may have for forum non conveniens. The parties agree that the Uniform Computer Information Transactions Act (UCITA) shall not apply to the Agreement.
13.0 General Provisions.
13.1 Publicity. NAVEX may use Client’s name and trademarks (including use of logos) in NAVEX’s customer lists for marketing or promotional purposes. With prior written approval (which may occur via email), NAVEX may use Client’s name and trademarks (including use of logos) (i) in press releases and other communications pertaining to Client’s agreement to use NAVEX’s services; and (ii) on NAVEX’s website and other sales and marketing media, including collateral, emails, tradeshows, and signs.
13.2 Insurance. NAVEX shall, at its own cost and expense, acquire and continuously maintain insurance coverages detailed at the following website during the Term of the Agreement: https://www.navexglobal.com/Insurance.
13.3 Third-Party Beneficiaries. Unless otherwise prohibited by Applicable Law, nothing in the Agreement shall be construed to give any person or entity other than the parties hereto any legal or equitable claim, right, or remedy; rather, the Agreement is intended to be for the sole and exclusive benefit of the parties.
13.4 Assignment. The terms of the Agreement shall be binding on the parties and their respective successors. Neither party will assign, transfer, or delegate its rights or obligations under the Agreement (in whole or in part) without the other party’s prior written consent, except (i) to an Affiliate, or (ii) pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void.
13.5 Consents and Approvals. Unless the parties have agreed otherwise herein, all consents and approvals required under the Agreement must be delivered in writing by courier, facsimile, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the most recent Order Form. Such consent or approval shall be deemed delivered when received. NAVEX shall deliver invoices and fee increase notices via email only. Regardless of the method used to deliver a consent or approval, Client shall send a copy of such consent or approval to legalnotice@navexglobal.com on the same date the consent or approval is sent.
13.6 No Agency. The Agreement shall not be construed to create a joint venture or partnership between the parties. Neither party shall be deemed to be an employee, agent, partner, or legal representative of the other for any purpose, nor shall either party have any right, power, or authority to create any obligation or responsibility on behalf of the other.
13.7 Compliance with Law.
i. Each party shall be responsible for compliance with all Applicable Law, if any, related to the performance of its obligations under the Agreement.
ii. NAVEX’s Services are subject to U.S. sanctions laws and may not be sold or licensed to any party listed on the Specially Designated Nationals List maintained by the U.S. Department of the Treasury (“Restricted Party”) or in U.S.-sanctioned countries (the most up-to-date lists can be found at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). Client represents and warrants that neither Client, nor any of its Affiliates, or, to its knowledge, any of its or any of its Affiliates’ directors, officers, employees, or agents are currently the subject of a Sanctions Investigation. Client shall promptly notify NAVEX if it or any of its Affiliates, or any of its or any of its Affiliates’ directors, officers, employees, or agents become the subject of any Sanctions Investigation. Client agrees not to use, transfer, or provide access to NAVEX’s Services (a) to any Restricted Party, or (b) in or for the benefit of individuals or entities from such U.S. sanctioned countries. Client represents and warrants that it is not directly or indirectly owned by, controlled by, owning, controlling, or named as a Restricted Party. NAVEX and its Affiliates may not do business with a Restricted Party under U.S. law (the most up-to-date lists can be found at https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx and https://www.bis.doc.gov/index.php/the-denied-persons-list).
iii. Client represents and warrants that its use of NAVEX’s Services will in all respects comply with current U.S. export controls regulations and requirements, including, but not limited to, those promulgated by U.S. Departments of State, Commerce, Homeland Security, Treasury, and Defense. Any breach of this Section 13.7 is a material breach of the Agreement, this MSA, and any applicable Order Form for which no cure period shall apply.
13.8 Force Majeure. Except for payment of fees, neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the Agreement if and to the extent that such failure or delay is caused by events beyond its reasonable control, including, but not limited to, acts of the public enemy or a governmental body in its sovereign or contractual capacity, war, fire, floods, unusually severe weather, outside electrical failure, the limitations or failures of third-party internet service providers and/or telecommunication providers, the performance or failures of internet service providers, or acts of terrorism, including cyberattacks on NAVEX’s computer systems or those of third parties, including, without limitation, internet service providers and telecommunication providers. If so affected, the affected party shall use commercially reasonable efforts to avoid or remove such causes of non-performance or delay and shall continue performance hereunder with reasonable dispatch whenever such causes are removed or otherwise resolved.
13.9 Waiver. No waiver or delay in enforcement of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and a waiver shall not be effective unless made in writing and signed by an authorized representative of the waiving party.
13.10 Survival. The terms and conditions of the Agreement that by their nature require performance by either party after the termination or expiration of this MSA, including, without limitation, limitations of liability, confidentiality obligations, exclusions of damages, indemnification obligations, governing law, fees owed prior to the date of termination, and any other provision or partial provision that by their nature would reasonably extend beyond the termination of this MSA shall be and remain enforceable after such termination or expiration of this MSA for any reason whatsoever.
13.11 Severability. If any provision of the Agreement conflicts with governing law or if any provision is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with Applicable Law; and (ii) the remaining terms, provisions, covenants, and restrictions of this MSA shall remain in full force and effect.
13.12 Audit. During NAVEX’s regular business hours, but not any more frequently than once a year, Client may, at its sole expense, perform a confidential audit of NAVEX’s compliance with Section 5.1 (Personal Information and Data) of this MSA as it pertains to the SaaS Offering provided under the Agreement. Such audits shall be conducted on a mutually agreed upon date, which shall not be sooner than thirty (30) calendar days after NAVEX’s receipt of Client’s written request for such audit. Such audits shall be limited to security systems as they pertain to the SaaS Offering and shall not exceed a cumulative four (4) hours at NAVEX’s facilities. If the audit shall exceed such four (4) hour period, Client shall be responsible for payment of professional services fees to NAVEX at the current hourly rate for professional services. If the audit is to be performed by a third party on Client’s behalf, such third party shall (i) not be a direct or indirect competitor of NAVEX, and (ii) execute a confidentiality and non-disclosure agreement as presented by and for the benefit of NAVEX. Upon completion of the audit, Client shall promptly provide NAVEX a summary of the findings from each report prepared in connection with any such audit and discuss results, including any remediation plans. If audit results find NAVEX is not in substantial compliance with the requirements of Section 5.1 (Personal Information and Data) of this MSA, then Client shall be entitled, at NAVEX’s expense, to perform up to one (1) additional such audit in that year in accordance with the procedure set forth in this Section. NAVEX agrees to work with Client to identify reasonable remediation actions and to promptly take action at NAVEX’s expense to correct those matters or items upon which NAVEX and Client mutually agreed are identified in any such audit that require correction.
13.13 Entire Agreement. The Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements, proposals, responses to requests for proposals, representations, and warranties, written or oral, concerning the subject matter of the Agreement, including any prior non-disclosure or confidentiality agreement(s), which shall be replaced by those terms and conditions set forth in Section 10.0 (Confidential Information) unless otherwise expressly agreed to in writing by the parties. This MSA and any Order Forms may be modified or amended only in writing signed by a duly authorized representative of each party; any other act, usage, or custom shall not be deemed to amend or modify this MSA or an Order Form. It is expressly agreed that the terms of the Agreement shall supersede the terms in any Client purchase order, and the terms included in any such purchase order or other Client policy shall not (i) apply to the Services ordered, and (ii) in any way modify, revise, supplement, or otherwise affect the terms and conditions in the Agreement. If Client requires processing of payments through a third-party payment vendor, it is understood and agreed that use of such third-party payment vendor is solely for the convenience of Client and such documentation associated with payment submission shall not in any way modify, add to, or delete any of the terms and conditions of the Agreement. Any costs associated with the use of such third-party payment vendor shall be borne exclusively by Client.
13.14 Section Headings. The Section headings are for reference purposes only and shall not in any way affect the meaning or interpretation of this MSA.
13.15 Counterparts. The parties may execute this MSA and any Order Form in counterparts. An exchange of scanned and emailed executed copies or electronic signatures is acceptable. In the event of such an exchange, this MSA and any Order Form shall become binding and any scanned and emailed signed copies or electronic signatures shall constitute admissible evidence of the existence of this MSA or Order Form.
13.16 Updates. NAVEX may from time to time make updates to the terms incorporated into and contained in this MSA; provided, however, any existing MSA shall remain subject to the terms that have been incorporated into or contained in this MSA as of the Effective Date of this MSA until the expiration of the Term.
NAVEX MASTER SERVICES AGREEMENT V.55