Master Services Agreement
Previous agreements: Effective 11/10/20
THESE SAAS SERVICES TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERN CUSTOMER’S ACCESS TO AND USE OF THE SEVCO SECURITY, INC. SERVICES, UNLESS CUSTOMER ACCESSES THE SERVICES THROUGH A MANAGED SECURITY SERVICE PROVIDER (AN “MSSP”), IN WHICH CASE THE MSSP’S TERMS AND CONDITIONS SHALL GOVERN. BY ACCEPTING THIS AGREEMENT, BY (1) CREATING A SERVICE ACCOUNT AND USING THE SERVICES, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING A FREE TRIAL, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. EACH PERSON EXECUTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS.
1 DEFINITIONS; SAAS SERVICES
1.1 Definitions “Authorized Reseller” means an authorized reseller of the Services. “Customer Data” means non-public customer data provided to Sevco to enable the Services, and any data relating to the provision, use and performance of the Services. “Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data under this Agreement. “Documentation” means the documentation for the Services generally made available by Sevco to assist its customers in their use of the Services. “Order Form” means the Sevco Security, Inc. Order Form, or any other mutually agreed upon ordering document, including referenced attachments or supplements included with or incorporated into the Order Form. “Services” means the specific hosted Sevco services ordered by Customer pursuant to the Order Form, as such services may be modified, enhanced and/or updated from time to time. “Software” means the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services. “Trial Access” means free, trial or evaluation access to the Services.
1.2 Services. Subject to the terms of this Agreement, Sevco will use commercially reasonable efforts to provide Customer the Services, in accordance with: (a) the Service Level Agreement available at https://sevcosecurity.com/sla/; (b) the Security Protocols available at https://sevcosecurity.com/security; (c) the Support Agreement available at https://sevcosecurity.com/support/; and (d) the Documentation available at https://docs.sev.co, each of which may be updated from time to time.
1.3 Restrictions. Customer will not, directly or indirectly, and will not permit or authorize third parties to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the Software (except as allowed by and in compliance with applicable law); (b) use the Services or Software other than in connection with Customer’s internal business; (c) access or use the Services or Software in order to build or support, competitive products or services; (d) without Sevco’s prior written consent, perform on the Services or Software network discovery, port and service identification, vulnerability scanning, remote access testing or penetration testing; (e) modify, translate or create derivative works based on the Services or Software (except to the extent expressly permitted by Sevco or authorized within the Services); (f) use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (g) remove any proprietary notices or labels from the Services or Software.
Trial Access. If Sevco has made available to Customer Trial Access, Customer may use such access solely to evaluate purchase of a subscription from Sevco. The Trial Access is limited to thirty (30) days from the date Customer activates the Trial Access, unless otherwise specified by Sevco (the “Trial Period”). Notwithstanding any other provision of this Agreement, the Trial Access is provided “AS IS” without warranty or support of any kind, express or implied. Sevco may terminate Customer’s Trial Access at any time for any reason and without liability of any kind.
2 CONFIDENTIALITY; PROPRIETARY RIGHTS
2.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Sevco Proprietary Information includes non-public information regarding features, functionality and performance of the Services. Customer Proprietary Information includes Customer Data. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information; and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information, except to those of its employees, contractors, consultants, legal representatives and agents (collectively, “Representatives”) who need access for purposes consistent with this Agreement and who are subject to confidentiality obligations with the Receiving Party containing protections no less stringent than those herein. Receiving Party is responsible for its Representatives’ compliance with this Section 2.
2.2 Confidentiality Exceptions. The Disclosing Party agrees the foregoing shall not apply if the Receiving Party can document the information: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.
2.3 Customer Data. As between Customer and Sevco, Customer shall own all Customer Data. Customer hereby grants to Sevco, its affiliates and contractors a worldwide, limited license to host, copy, transmit and display Customer Data as reasonably necessary for Sevco to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Customer is solely responsible for the accuracy and content of all Customer Data, and Customer represents and warrants to Sevco that: (a) Customer has sufficient rights in the Customer Data to authorize Sevco to process, distribute and display the Customer Data as contemplated by this Agreement; (b) the Customer Data and its use hereunder will not violate or infringe the rights of any third party; and (c) Customer’s use of the Services and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions. In addition, during and following the Term, Sevco may use the Customer Data, on an aggregated and de-identified basis only, for any Sevco business purpose, including without limitation improving and enhancing the Services and marketing and promoting the Services.
Data Processing Addendum If Sevco processes any Customer Data comprised of personal data, as defined in the General Data Protection Regulation (Regulation (EU) 2016/679), each party shall adhere to the provisions set out in the Sevco Data Processing Addendum (the “DPA”), which incorporates the applicable Standard Contractual Clauses (processors) (the “SCCs”), located at https://sevcosecurity.com/dpa and incorporated herein by reference. Execution of the Agreement constitutes execution of the DPA and the SCCs.
2.4. Sevco Proprietary Rights. Sevco shall own and retain all right, title and interest in and to: (a) the Services and Software, and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with support; and (c) all intellectual property rights related to any of the foregoing. Customer hereby grants Sevco and its affiliates a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its users relating to the Services.
2.5 Use of Customer Name and Logo. Sevco may use Customer’s name and logo to identify Customer as a Sevco customer of the Services, including without limitation on Sevco’s website. Sevco agrees that any such use shall be subject to Sevco complying with any written guidelines that Customer may deliver to Sevco regarding the use of its name and logo and shall not be deemed Customer’s endorsement of the Services.
3.1 Direct Purchase Payment Terms. If Customer purchases Services from Sevco under an Order Form between Sevco and Customer, Customer will pay Sevco the fees set forth in the Order Form for the Services (the “Fees”). Unless otherwise expressly set forth on the Order Form, all Fees will be invoiced in advance on the Effective Date of the Order Form.
Unless otherwise expressly set forth on the Order Form, payment of all invoices shall be due within thirty (30) days of the date of invoice. If Customer’s use of the Services exceeds the number of devices or other service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. If Customer believes that Sevco has billed Customer incorrectly, Customer must contact Sevco no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Sevco’s customer support department.
3.2 Fee Changes. Sevco reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to Customer (which may be sent by email). Such changes will take effect: (a) for monthly subscriptions, beginning on the first day following such thirty (30) day notice period; and (b) for fixed duration subscriptions, beginning on the next renewal term.
3.3 Late Payments. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services.
3.4 Taxes. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Sevco’s net income.
3.5 Authorized Reseller Payment Terms. If Customer purchases Services from and Authorized Reseller under an Order Form between Customer and the Authorized Reseller, Customer is responsible for payment of all Fees due to the Authorized Reseller. Customer’s access to the Services may require Customer’s agreement to additional terms and conditions that the applicable Authorized Reseller may make available at the time of purchase (“Additional Reseller Terms”). Such Additional Reseller Terms are exclusively between Customer and the Reseller. Sevco assumes no liability or responsibility arising from or related to Additional Reseller Terms.
3.6 Suspension for Non-Payment. If Customer does not pay any Fees due to Sevco or an Authorized Reseller, as applicable, Sevco may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full. Sevco will give Customer at least ten (10) business days’ prior written notice that Customer’s account is overdue before suspending the Services.
4 TERM AND TERMINATION
4.1 Term. Subject to earlier termination as provided below, this Agreement commences on the Effective Date of the first Order Form and continues until otherwise terminated, by written agreement of the parties, in accordance with Section 4.2 or 4.3 hereof, or upon the expiration of the last subscription term or renewal thereof of all Order Forms (the “Term”).
4.2 Renewals. For monthly subscriptions, unless otherwise expressly set forth in the Order Form, the Term shall automatically renew on a monthly basis until either party terminates with at least thirty (30) days’ written notice prior to the end of the month in which such termination is to be effective. For fixed duration subscriptions, unless otherwise expressly set forth in the Order Form, the Term shall automatically renew for additional one year periods unless either party terminates the Agreement with written notice at least thirty (30) days’ prior to the end of the then-current Initial Service Term or renewal term.
4.3 Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided, and if Customer terminates this Agreement pursuant to this Section 4.3, then Sevco will refund Customer any prepaid Fees applicable to periods following the termination date. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
4.4 Data Destruction and Transition Assistance. Upon any termination, all Customer Data will be available, in a standard format, for electronic retrieval for a period of thirty (30) days. If requested in writing prior to the end of the Term, Customer may receive Sevco’s assistance exporting Customer Data in alternative formats. Customer agrees to reimburse Sevco for any non-trivial engineering services at commercially reasonable hourly rates.
5 CUSTOMER REPRESENATIONS; WARRANTY AND DISCLAIMER
5.1 Customer Representations. Customer represents, covenants and warrants that Customer will use the Services only in compliance with Sevco’s standard published policies then in effect, the Documentation, and all applicable laws and regulations. Customer shall be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
5.2 Warranty. Sevco warrants that the Services will substantially conform to the Documentation. This warranty does not apply if the Services have been altered, except by Sevco or its authorized representative. For any breach of this warranty, Sevco will use commercially reasonable efforts to repair or replace the affected Services. If the foregoing remedies are not commercially practicable, Sevco may, in its sole discretion, terminate the applicable Order Form upon providing Customer with written notice thereof and refund to Customer any Fees prepaid by Customer with respect to the expired portion of the current Initial Service Term or then current renewal term, as applicable, for the non-conforming Services. The remedies set out in this Section 5.2 are Customer’s sole remedies for breach of the warranties contained herein. Sevco shall use commercially reasonable efforts to minimize errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Sevco or by third-party providers, or because of other causes beyond Sevco’s reasonable control, but Sevco shall provide advance notice in writing or by e-mail of any scheduled service disruption.
5.3 DISCLAIMER. SEVCO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SEVCO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.1 Sevco Indemnification Obligations. Sevco shall defend Customer against any claim, demand, suit, or proceeding (a “Claim”) made or brought against Customer by an unaffiliated third party alleging that the Services, or use of the Services as permitted hereunder infringe any United States patent or any copyright or misappropriate any trade secret, and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court approved settlement of, a Claim. The foregoing obligations do not apply with respect to portions or components of the Services: (a) not supplied by Sevco; (b) combined with other products, processes or materials where the alleged infringement relates to such combination; (c) where Customer continues allegedly infringing activity after being notified thereof; or (d) where Customer’s use of the Services is not strictly in accordance with this Agreement. If the Services are or are likely to become subject to a claim of infringement or misappropriation, then, Sevco may, at its sole option and expense: (x) replace or modify the Services to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (y) obtain for Customer a license to continue using the Services; or (z) terminate this Agreement.
6.2 Customer Indemnification Obligations. Customer shall defend Sevco against any Claim made or brought against Sevco by an unaffiliated third party that arises from a violation or alleged violation of its representations, warranties or obligations under this Agreement or otherwise from Customer’s use of Services and shall indemnify Sevco for any damages, attorney fees and costs finally awarded against Sevco as a result of, and for amounts paid by Sevco under a court approved settlement of, a Claim.
Indemnification Process. Each party’s indemnification obligations in this Section 6 are subject to: (i) prompt notification in writing of any Claim (provided that the indemnified party’s failure to provide reasonable written notice shall only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying party’s ability to defend or settle such claim); (ii) the transfer of sole control of the defense and any related settlement negotiations to the indemnifying party (provided that indemnifying party shall not settle a Claim without the consent of the indemnified party unless indemnified party is unconditionally released of all liability); and (iii) the indemnified party’s cooperation in the defense of such claim. Notwithstanding the foregoing, if the indemnifying party fails to respond in writing within ten (10) days after receiving notice of a Claim from the indemnified party, stating that the indemnifying will fulfill its obligations pursuant to this Section, then the indemnified party shall have the right to assume the exclusive defense of the Claim (including, without limitation, the investigation, trial, settlement, appeal, and payment of any losses) solely at indemnifying party’s expense. Customer will fully cooperate in the defense of any Claim. THIS SECTION 6 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR CLAIMS FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
7 LIMITATION OF LIABILITY
7.1 LIABILITY EXCEPTIONS. NOTWITHSTANDINGANYTHING TO THE CONTRARY, SEVCO AND ITS SUPPLIERS, OFFICERS, AFFILIATES,REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (B) FOR ANY MATTER BEYOND SEVCO’S REASONABLE CONTROL;
7.2 MAXIMUM LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR SEVCO’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 HEREOF, SEVCO AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES (COLLECTIVELY THE “SEVCO PARTIES”) SHALL NOT BE LIABLE UNDER THIS AGREEMENT, INCLUDING ANY ADDENDUMS OR DOCUMENTS INCORPORATED BY REFERENCE HERETO: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES, OR PUNITIVE DAMAGES; OR (B) FOR AN AGGREGATE AMOUNT EXCEEDING THE FEES PAID OR PAYABLE BY CUSTOMER TO SEVCO FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE MONTH IN WHICH THE CLAIM OCCURRED. NOTWITHSTANDING THE FOREGOING, THE ENTIRE LIABILITY OF THE SEVCO PARTIES UNDER THIS AGREEMENT RELATED TO TRIAL ACCESS OR TO ANY PRODUCTS OR SERVICES IN BETA SHALL BE $500. MULTIPLE CLAIMS SHALL NOT EXPAND THESE LIMITATIONS.
8. EXPORT COMPLIANCE
Customer agrees to comply with U.S., foreign, and international laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, other anti-corruption laws, U.S. Export Administration and Treasury Department’s Office of Foreign Assets Control regulations, and other anti-boycott and import regulations. Customer represents and warrants that it is neither a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which Sevco is prohibited from doing business.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Sevco’s prior written consent. Sevco may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Sevco in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. No provisions of Customer’s pre-printed purchase orders, acknowledgements, or click-through terms may modify this Agreement, and such other or additional terms or conditions are void and of no effect. This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws provisions.