This ONLINE MASTER SERVICES AGREEMENT (this “Agreement”) is entered into by ASCENT360, INC., a Delaware company, having a place of business at 651 Corporate Circle, Ste 204, Golden, CO 80401 (“Ascent360”) and the client (“Client”) identified in a proposal, order, statement of work, or similar document incorporating by reference this Agreement (the “Order”). This Agreement is dated as of the date set forth in the Order (the “Effective Date”). In the event of a conflict between the terms of this Agreement and the terms of the Order, the terms of this Agreement shall control unless the conflicting term of the Order expressly states otherwise.
THE PROVISION OF THE SERVICES UNDER AN ORDER OR SOW IS EXPRESSLY MADE CONDITIONAL ON CLIENT’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND ASCENT360 AGREES TO PROVIDE THE SERVICES ONLY UPON THESE TERMS AND CONDITIONS. IN THE EVENT THAT CLIENT AND ASCENT360 ARE PARTY TO A SEPARATE WRITTEN AGREEMENT GOVERNING THE SOFTWARE SERVICE (“SERVICES AGREEMENT”), THE TERMS OF THE SERVICES AGREEMENT WILL APPLY IN PLACE OF THIS AGREEMENT AND THIS AGREEMENT WILL BE OF NO FORCE OR EFFECT.
1.1. Software Service Subscription: Subject to the terms and conditions of this Agreement and the Order, Ascent360 grants to Client during the Term (defined below), a non-exclusive, non-transferable right to remotely access and use (via the Internet) the functionality of Ascent360’s software products described in the applicable Order (the “Software Service”), solely for Client’s internal business purposes and strictly in accordance with this Agreement and the applicable Order.
1.2. Support Services: Ascent360 will use best efforts to provide to Client the training, technical support, and maintenance services described in the Support and Service Level Agreement available at https://www.ascent360.com/docs/legal/Ascent360_Client_Success_Services.pdf (“Support Services”). The specific Support Services provided by Ascent360 may be updated from time to time.
1.3. Professional Services; Statements of Work: Ascent360 may provide to Client marketing and strategic consulting services (“Professional Services”, and together with the Software Service and Support Services, the “Services”) described in the Order or one or more Statements of Work (“SOW”). Each SOW or Order for Professional Services shall include a description of the Professional Services to be provided, any acceptance criteria, a project schedule, fees, commencement and termination dates, and such other terms and conditions as the parties may agree. The terms of this Agreement are hereby incorporated by reference into each SOW, and shall control over any conflicting provisions of the SOW unless the SOW specifically states otherwise with reference to the applicable provision.
2.1. Fees. Client will pay to Ascent360 the fees set forth in the applicable Order and/or SOW (“Fees”) within thirty (30) days after receipt of the applicable invoice. All payments must be made in U.S. dollars.
2.2. Fee Increases. Ascent360 may increase the Fees for the Software Service by up to 5% upon the commencement of any Renewal Term.
2.3. Late Payments. Outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Ascent360’s reasonable costs of collection.
2.4. Taxes. All Fees due hereunder are exclusive of, and Client shall pay, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon Ascent360’s net income.
3. Ownership of Data:
4. Access; Users:
4.1. Users. Client shall be responsible for the acts and omissions of each person authorized by Client to access or use the Software Service (each a “User”). Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software Service, and notify Ascent360 promptly of any such unauthorized use. 4.2. Suspension. Ascent360 will have the right to immediately, in its sole discretion, suspend access to the Software Service, deactivate any Users’ access, restrict access to certain features, or terminate this Agreement, if Ascent360 determines, in its discretion, that: (a) harm is being done to the Software Service by Client or a User; (b) Client or its Users have violated this Agreement, applicable law, or the rights of Ascent360 or any third party; or (c) payment of Fees is more than 30 days past due. Ascent360 will, when it is reasonably practicable, provide advance notice of suspension under this section. Ascent360 may also temporarily suspend or restrict access in the event it needs to perform emergency maintenance. Ascent360 will not be liable for any loss, damage, or inconvenience suffered by Client as a result of any suspension or termination in accordance with the foregoing.
5. Agreement Term:
5.1. Term. The initial term of this Agreement will begin on the Effective Date and will continue for a period of time as set forth in the Order (“Initial Term”). Thereafter, unless otherwise set forth in an Order, this Agreement will automatically renew for additional periods equal to the length of the Initial Term (each, a “Renewal Term”) unless a party provides notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term (as applicable). The Initial Term and each Renewal Term are referred to collectively as the “Term”.
5.2. Termination: In addition to the other termination rights set forth in this Agreement, (i) the parties may terminate this Agreement upon mutual written agreement and (ii) either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach within ten (10) business days after receiving written notice thereof.
5.3. Effect of Termination: Unless Client terminates this Agreement for Ascent’s uncured breach in accordance with this Section 5.2 and Section 7.1, such termination shall not terminate or affect Client’s obligation to pay all Fees for the entire then-current Term for the Software Service and all Fees for Professional Services provided prior to the effective date of termination. Unless otherwise set forth in Section 7.1, Client shall not be entitled any refund of prepaid Fees. In addition, upon termination of this Agreement all rights granted by Ascent360 to Client will immediately cease to exist and Client must discontinue all use of the Software Service. Upon cancellation or termination of the Software Service, Ascent360 agrees to return Client Data to client by secure FTP and will assess to Client all costs associated with the processing and transfer of such Client Data. Costs for the processing and transfer of Client Data are not to exceed $1,000. Client Data will not be released until all Fees and charges owed Ascent360 are paid.
6.1. Ascent360 Indemnity. Ascent360 shall defend at its expense (or settle at its cost) Client and its affiliates, and the shareholders, directors, officers, employees and agents of each of the foregoing (“Client Parties”), from and against any and all third party claims and actions which are brought against any Client Parties in any proceeding as a result of, in respect of, in connection with, arising out of or in any way related to any infringement or misappropriation of any patent, copyright, trademark, trade secret or other proprietary rights of any third party, if caused by Client’s authorized use thereof without modification, of the Software Service or any marketing materials prepared by Ascent360 in connection with the Professional Services. Ascent360 shall indemnify and hold the Client Parties harmless for all damages, losses, charges, costs, liabilities and expenses, including judgments, fines, penalties, amounts paid in settlement and reasonable legal fees incurred by Client attributable to such claim or action.
6.2. Client Indemnity. Client shall defend at its expense (or settle at its cost) Ascent360 and its members and affiliates, and the shareholders, directors, officers, employees and agents of each of the foregoing (“Ascent360 Parties”), from and against any and all third party claims or actions which are brought against any Ascent360 Parties in any proceeding as a result of, in respect of, in connection with, arising out of or in any way related to (i) any material breach of any term, covenant, agreement or obligation of Client hereunder; (ii) any violation by Client of applicable laws, rules or regulations; or (iii) any infringement or misappropriation of any patent, copyright, trademark, trade secret, personal, proprietary or other rights of any third party caused by Ascent360’s authorized use of the Client Data. Client shall indemnify and hold the Ascent360 Parties harmless for all damages, losses, charges, costs, liabilities and expenses, including judgments, fines, penalties, amounts paid in settlement and reasonable legal fees incurred by Ascent360 attributable to such claim or action.
6.3. Indemnification Procedures: As an obligation to enforce any indemnification right, the party seeking indemnification must notify the other party of any event subject to indemnification and adhere to the following: The indemnifying party shall solely control the defense and settlement of the applicable claim or action. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any claim or action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such claim or action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any claim or action in a manner that requires the indemnified party to pay monies or admit liability without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this section shall not relieve the indemnifying party of its obligations under this section except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
7. Warranty; Disclaimer:
7.1. Performance. Ascent360 shall use reasonable efforts to correct, in accordance with the Support Services, any reproducible error in the Software Service that indicates that the Software Service has failed to operate as described in the documentation provided by Ascent360 in any material respect. In the event that Ascent360 is unable to correct the Software Services, Client’s sole remedy is to terminate this Agreement and receive a refund of prepaid Fees paid by Client during the period of time in which the Software Service did not perform in material compliance with the documentation. This Section 7.1 set forth Client’s sole and exclusive remedy and Ascent360’s sole and exclusive liability for failures in the performance of the Software Service 7.2. Disclaimer. Use of the Services and reliance by Client on the Services is at Client’s sole risk. Ascent360 and its Providers do not warrant that the Software Service will be uninterrupted or error free. Nor does Ascent360 or its providers make any warranty as to the results that may be obtained from use of the Services. OTHER THAN AS SET FORTH IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS IS” AND ASCENT360 AND ITS PROVIDERS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8. Limitation of Liability: Ascent360 or its partners shall not be held financially responsible under any circumstances for decisions made by Client based on the Services. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ASCENT360’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO ASCENT360 HEREUNDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
9.1. Definition. “Confidential Information” means the terms and conditions of this Agreement and all information related to a party’s business, financial affairs or operations, including but not limited to information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential.
9.2. Obligations. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
9.3. Exceptions. The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
9.4. Return of Confidential Information. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, and permanently erase all electronic copies of such Confidential Information, promptly upon the written request of the Disclosing Party; provided that Receiving Party shall not be required to destroy electronic records or files that have been created pursuant to Receiving Party’s automatic archiving and back-up procedures and the removal of which is not technically practical.
9.5. Injunctive Relief. Each party acknowledges that a breach or threatened breach of this section would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this section by the other party or any of its employees or agents.
10. Personal Information:
“Personal Information” is data or information through which an individual may be identified or contacted, including, without limitation, names, addresses, telephone numbers, email addresses, as well as any other non-public information about an individual that is associated with or linked to any of the foregoing data, but excluding any data in encrypted or hashed form. With respect to Confidential Information of Client that is Personal Information, Ascent360 shall (a) provide commercially reasonable physical and logical security controls to prevent security breaches or unauthorized access to such Personal Information; and (b) in the event that Ascent360 knows that there has been any unauthorized access (or attempted unauthorized access) to Client’s Personal Information that compromises, or threatens to comprise, the security, confidentiality or integrity of such Personal Information, it shall notify Client and take reasonable steps to remedy such unauthorized access and to prevent further disclosure of Personal Information. The foregoing obligations shall continue to apply after the expiration or termination of this Agreement, regardless of the reasons therefore.
11. Ascent360 Personnel:
Ascent360 may, at its sole cost and expense, employ such employees and subcontractors as it, in its discretion, deems necessary, appropriate or convenient in order to provide the Services hereunder (“Ascent360 Personnel”). All Ascent360 Personnel shall be considered an employee, contractor or agent, as the case may be, of Ascent360 and not of Client. Ascent360 is responsible for all Ascent360 Personnel’s acts or omissions in connection with this Agreement. Ascent360 shall be solely and exclusively responsible for the payment of salaries and/or other compensation to any Ascent360 Personnel, and for the payment of any and all state, local, federal and international taxes, withholding, benefits payments or other payments due on such compensation.
12. Governing Law, Venue and Attorney’s Fees:
12.1. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of Colorado, without reference to its choice of laws rules. Venue for any dispute under this Agreement or any SOW will be in state and federal courts in Denver, Colorado.
12.2. Attorney’s Fees. The prevailing party in any litigation shall be entitled to reasonable and necessary attorneys’ fees in addition to any other relief to which it may be entitled. A prevailing party’s right to recover reasonable attorneys’ fees is to be proportional to the number of claims on which the party actually prevailed in relation to the total amount of claims alleged, pursued, or brought by that party.
13. Miscellaneous Provisions:
13.1. Force Majeure. Neither party shall be liable to the other for any delay in the time for performance of its obligations under this Agreement if such delay arises out of circumstances beyond its reasonable control including, but not limited to, strikes, wars, natural disasters, fire, earthquakes, weather, epidemics or pandemics, social unrest, riots, equipment, transportation, power or telecommunication failure or breakdown, or governmental regulations, orders or interference. In the event of any such excusable delay, the time for performance of such obligations shall be extended for a period equal to the length of the delay. The party whose performance is hampered by the excusable delay shall provide written notice thereof to the other party as soon as reasonably possible.
13.2. Relationship. The relationship of the parties created by this Agreement is that of independent contractor and not that of employer/employee, principal/agent, partnership, joint venture or representative of the other. Neither party shall represent to third parties that it is the representative of the other in any manner or capacity whatsoever.
13.3. Non-Solicit. During the term of this Agreement, and for a period of one (1) year thereafter, neither party will directly or indirectly hire or cause to be hired, any employee or independent contractor of the other party without the prior written consent of the other party; provided, however, that the foregoing does not prevent a party from issuing general advertisements or other general solicitations of employment not directed to the other party’s employees or independent contractors.
13.4. Survival. The terms and conditions of this Agreement regarding obligations, restrictions, proprietary rights, ownership, warranties, liability, confidentiality, indemnification, accrued payment obligations and all others that by their sense and context are intended to survive the execution, delivery, performance, termination or expiration of this Agreement, survive and continue in effect.
13.5. Updates. The terms of this Agreement may be updated from time to time. Notwithstanding any such update, the terms in place as of the Effective Date of an applicable Order shall continue to govern the provision of Services under the applicable Order unless otherwise agreed by the parties in writing.
13.6. Entire Agreement. This Agreement supersedes and replaces any and all previous agreements between the parties.