Terms of Service
MASTER SERVICES AGREEMENT
This Terms of Service Agreement (this “Agreement”) is effective as of July 24, 2024 by and between SalesRevv Inc., a Delaware corporation (“Company”), and the undersigned (“Customer”). Company and Customer are sometimes referred to herein individually as a “Party” and together as the “Parties” to this Agreement.
RECITAL:
Customer wishes to engage with Company, and Company agrees to so be engaged, to supply the Platform and to provide the Services (each as defined in Section 2), all as more fully described in one or more Statements of Work and this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of foregoing Recitals, incorporated by reference, the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Incorporation of Recitals. The above Recitals are hereby incorporated by reference as if set forth herein.
Platform and Services.
Customer hereby engages Company to supply and deliver to Customer the system (the “Platform”) as may be ordered from time to time pursuant to a statement of work order in the form of Exhibit A attached hereto (“Statement of Work”). Customer shall only install and use the Platform at the locations set forth in the Statement of Work. Customer agrees and acknowledges that Customer shall not use or install the Platform at any other Customer location other than as specified in the applicable Statement of Work.
In addition to the supply and delivery of the Platform, Company shall provide Customer with a limited, revocable, non-exclusive, nontransferable, non-assignable, and non-sublicensable license to use the SalesRevv software set forth on a Statement of Work (collectively, the “Services”). Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
Once executed by the Parties, the Statement of Work shall be deemed an integral party of this Agreement. In the event of any conflict between the terms of this Agreement and the terms set forth in the Statement of Work, the terms of this Agreement shall prevail, unless otherwise expressly written in such Statement of Work.
Intellectual Property.
Company hereby grants Customer a perpetual, irrevocable, worldwide, non-exclusive, nontransferable, non-assignable, and non-sublicensable license under the Company IP (as defined below) to use the Company IP, solely for Customer’s internal development purposes in accordance with the terms of this Agreement. The foregoing license shall pass to the Customer upon payment in full of the Service Fee (as defined in Section 4(a)). For the avoidance of doubt, Customer is hereby expressly prohibited from (i) sharing or disclosing the Company IP with or to any third party, (ii) reverse engineering or creating derivative works of the Company IP, (iii) disassembling, decompiling or otherwise attempting to learn the source code, structure, algorithms or proprietary rights underlying the Company IP, (iv) modifying, translating, or creating derivative works of the Company IP and (v) having the Company IP manufactured by any third party.
Subject to the license granted in Section 3(a), Company shall retain sole and exclusive ownership of all right, title, and interest in and to all Company IP. As used herein, the term “Company IP” shall mean copyrights, patents and patent rights, trade secrets and trade secret rights, trademarks, design rights, or any other forms of intellectual property rights, together with all goodwill and claims appurtenant to, in the Platform, Services and any and all related materials and equipment, and any other processes, products, tools, designs, schema, models, prototypes, software, data, documentation, specifications, methods, information, ideas, know-how, confidential information, trade secrets, inventions, or works of authorship that are owned or have been conceived, developed, acquired, or licensed by or for Company including, without limitation, all customizations, modifications and derivatives thereto and therein. Company’s ownership and related rights to Company IP shall inure at creation. To the extent Company IP, for whatever reason, may vest in Customer, Customer (on behalf of itself and its employees) hereby perpetually and irrevocably assign to Company, without compensation, all right, title, and interest in and to Company IP and Customer hereby irrevocably waives all rights with respect to the foregoing (other than the limited license granted in Section 3(a)).
Customer grants Company a perpetual, irrevocable, non-exclusive, revocable, royalty-free, worldwide license to (i) use, collect and analyze the Derived Data and Usage Data, so long as such data does not include personally identifiable information of Customer’s end-users and customers sourced from data owned or licensed to Customer and (ii) provide, maintain, develop, train, enhance, and improve the Platform and Services. “Derived Data” means any resultant data that may be generated or otherwise derived from the data collected, processed, used or generated by Company in connection with the access to or use of the Platform or Services by or on behalf of Customer. “Usage Data” means any data reflecting the access to or use of the Platform or Services by or on behalf of Customer or any end-user or customer, including, without limitation, end-user profiles, visits, sessions, impressions, click-through or click-stream data, and any statistical or other analysis, information or data based on or derived from any of the foregoing. Customer represents, warrants and covenants that it has sufficient right, title and interest in and to the Derived Data and Usage Data to grant the license set forth herein. Customer acknowledges and agrees that Company will be free (during and after the Term hereof) to (A) use such Derived Data and Usage Data to improve and enhance the Platform and/or Services and for other development, diagnostic and corrective purposes in connection with the Platform and/or Services and other Company offerings, and (B) disclose such data solely in aggregate or other de-identified form. Customer is responsible for ensuring any Derived Data and Usage Date does not violate any applicable.
Customer grants Company a perpetual, irrevocable, royalty-free license to use Customer’s name and data for promotional, illustrative, marketing and advertising purposes, in any manner or in any medium, including on social media sites such as Company’s website, LinkedIn, Facebook, Instagram, Twitter and YouTube.
Support Services provided by Company. Company shall provide the following support services to Customer:
Company shall provide second-line support to Company’s employees Monday through Friday during the hours of 8:00 A.M. Eastern Time through 8:00 P.M. Eastern Time (excluding Federal holidays), as well as hours on the weekend as determined by Company in its reasonable discretion (such hours collectively referred to as “Support Hours”).
Company will provide technical support to Customer in accordance with this Section 4:
For a Critical Problem, Company will use commercially reasonable efforts to respond to all technical support requests within four (4) hours if a Critical Problem is reported during Support Hours. For purposes of this Agreement, “Critical Problem” means a technical problem that renders the Services completely or materially unusable by Customer.
For a Serious Problem, Company will use commercially reasonable efforts to provide Customer support on a priority, but not necessarily continuous, basis during the hours set forth in Section 4(a) until the Services are no longer impaired. For purposes of this Agreement, “Serious Problem” refers to a technical problem that substantially impairs operation of the Services but does not render the Services completely unusable by Customer.
For a Moderate Problem, Company will use commercially reasonable efforts to respond to a technical support request within two (2) business days following report thereof by Customer. For purposes of this Agreement, “Moderate Problem” means a technical problem that impairs operation of the Services to a lesser degree than a Serious Problem but does not render the Services completely unusable.
For a Minor Problem, Company will use commercially reasonable efforts to respond to a technical support request within five (5) business days following report thereof by Customer. For purposes of this Agreement, “Minor Problem” refers to a non-conforming behavior that does not impair use of the Services.
Company will use commercially reasonable efforts to provide bug fixes and patches for any material error, non-conformity or defect in the Services.
Fees and Payment.
In consideration of Company supplying the Platform or providing Services in accordance with this Agreement and applicable Statement of Work, Customer shall pay Company the service fee set forth in such Statement of Work (the “Service Fee”) and the implementation fee set forth in such Statement of Work (the “Implementation Fee”). The Service Fee and the Implementation Fee are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes and shall reimburse Company for any taxes paid by Company or, prior to payment, provide Company with valid tax exemption certificates.
Customer acknowledges and agrees (i) that the Implementation Fee is payable by Customer relates to certain onboarding activities of Company and such onboarding period may take up to approximately three weeks in order for the Platform and Services to be fully operational to Customer and (ii) the actual onboarding time may vary.
Unless set forth in a Statement of Work, the Service Fee shall be paid by Customer automatically on a recurring monthly basis until the Statement of Work is terminated by Customer or Company as set forth herein. To the extent a Service Fee is not paid by Customer within thirty (30) days of becoming due, such Service Fee shall accrue interest at a rate equal to 1.0% per month.
At Company’s election and upon notice to Customer, Company may increase the Service Fee payable under a Statement of Work, amend or alter the payment terms and conditions associated with the Platform and Services.
In the event of a breach of the payment terms of this Agreement or any Statement of Work, Customer shall indemnify Company for all costs and expenses relating to enforcement of the payment terms of this Agreement or any Statement of Work incurred by Company in seeking collection of any amounts owed, including, but not limited to, collection costs, reasonable attorneys’ fees and court costs.
Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Company, whether relating to Company’s breach or otherwise.
In addition to all remedies available to Company under this Agreement, Company shall be entitled to suspend the performance of Services or access to the Platform if Customer fails to pay the Service Fee when due hereunder and such failure continues for more than five (5) days following written notice thereof.
Term; Termination.
This Agreement shall commence on the date of this Agreement and shall continue to be in full force and effect as set forth on the Statement of Work (the “Term”).
Customer may terminate this Agreement and/or any Statement of Work in the event of material breach by Company which breach is not cured within thirty (30) days written notice from Customer. Upon such termination, Company shall discontinue all work on this Agreement and/or any Statement of Work, and Customer shall pay Company the outstanding Service Fee, if any. To the extent that (i) Customer has provided thirty (30) days prior written notice of termination to Company as set forth herein and (ii) the monthly recurring Service Fee is payable during such thirty (30) day period, such Service Fee shall by paid by Customer without setoff, deduction or other offset.
Company may terminate this Agreement and/or any Statement of Work, immediately upon written notice of termination to Customer, (i) in the event of a material breach by Customer of any term or condition of this Agreement and/or Statement of Work, (ii) if any representation, warranty or covenant of Customer becomes untrue or misleading, or (iii) if Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Customer Covenants, Representations and Warranties.
To the extent that Customer is an agency or full-suite customer, Customer acknowledges, agrees and covenants that, during the Term, Customer shall either be actively paying for digital marketing services or otherwise obtaining at least one hundred new and unique leads per month. Customer further agrees to cooperate, as reasonably requested by Company, to achieve maximum performance of the Platform and Services.
Customer acknowledges, agrees, represents, warrants and covenants that: (i) Services under this Agreement or any Statement of Work may require Company to collect, process, review and/or produce data as specified by Customer; (ii) Customer has the legal right and authority to authorize the collection, processing, review and/or production of any data that is collected, processed, reviewed and/or produced pursuant to this Agreement; (iii) Customer will not authorize or direct Company to collect, process, review and/or produce any data that Customer does not have the legal right or authority to authorize the collection, processing, review and/or production of; and (iv) any transfer or export of any data Customer directs Company to collect, process, review and/or produce outside of the United States will not violate any local, state, federal or international statute, law, regulation or other legislation. Customer acknowledges, agrees, represents, warrants and covenants that Company has the right to collect, process, and use data for its business purposes, so long as Company does not make such data personally identifiable. Notwithstanding anything herein to the contrary, Customer shall not disclose any information or data to Company that would be considered protected under the Health Insurance Portability and Accountability Act, and Customer expressly acknowledges that such information and data is not required for performance of the Services by Company hereunder.
Customer acknowledges and agrees that Company may collect and use content and data provided by or on behalf of Customer (“Customer Content”). Customer represents and warrants that it owns or has a license to use the Customer Content and such Customer Content does not infringe upon any rights of a third party. Customer acknowledges and agrees that: (i) artificial intelligence and machine learning are rapidly evolving fields of study; (ii) while Company is constantly working to improve the Platform and Services, use of the Platform and Services may, in some situations, result in output based on Customer Content (“Output”) that does not accurately reflect real people, places, or facts; (iii) use of Output as a sole source of truth or factual information should not be relied upon as a substitute for professional advice; (iv) Customer must evaluate Output for accuracy and appropriateness; and (v) Output does not represent the views or opinions of Company.
Customer acknowledges, agrees, represents, warrants and covenants that (i) use of the Platform and Services shall be in compliance with all applicable laws and any policies published by or on behalf of Company and (ii) Customer shall not remove or export from the United States or allow the export or re-export of all or any portion of the Platform or Services in violation of applicable laws or regulations.
Customer acknowledges, agrees, represents, warrants and covenants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN) with respect to Platform sold hereunder, and shall provide evidence of compliance with the foregoing as Company may reasonably request from time to time.
Customer acknowledges, agrees, represents, warrants and covenants that it is in compliance and shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and has not, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official for the purpose of influencing any act or decision of such government official. Customer is not on, nor is Customer associated with any organization that is on, any list of entities maintained by the United States government that identifies parties to which the sale of goods or services is restricted or prohibited.
Company Representations and Warranties. Company represents and warrants that (i) the Services provided under this Agreement will be performed in accordance with applicable industry standards; (ii) the Platform and Services provided under this Agreement will be performed in all material respects with specifications set forth in the applicable Statement of Work; and (iii) Company has the authority and the legal right to perform the Services and provide the Platform set forth in the Statement of Work. Company does not represent or warrant, and hereby disclaims any and all warranties and representations, that the Platform or Services: (A) will not infringe any valid and subsisting intellectual property rights owned by any third party; (B) comply with all applicable laws; or (C) are appropriate or suitable for their intended purpose. EXCEPT AS PROVIDED IN THIS SECTION 8, COMPANY MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF UNINTERRUPTED OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO GUARANTEES WITH REGARD TO THE RESULTS OBTAINED FROM THE OPERATION OR USE BY CUSTOMER OF THE PLATFORM. THE LIMITED WARRANTIES SET FORTH HEREIN ARE MADE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY.
Confidential Information.
The Parties acknowledge and agree that it will be necessary for them to disclose or make available to each other information and materials that are confidential or proprietary or contain valuable trade secrets relating to their respective businesses (collectively, “Confidential Information”). Each Party agrees (i) to use commercially reasonable efforts to protect the Confidential Information of the other Party from unauthorized use or disclosure and to use at least the same degree of care with regard thereto as it uses to protect its own Confidential Information of a like nature; and (ii) not to disclose or otherwise permit access to the Confidential Information of the other Party to any third party without such other Party’s prior written consent and then only to the extent reasonably required to accomplish the intent of this Agreement.
In the event that either Party or any of its directors, officers, partners, or employees is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or similar process to disclose any of the Confidential Information of the other Party, such compelled Party or any such person may disclose only that portion of the Confidential Information of the other Party that such Party or such person is legally required to disclose. If legally permitted, a Party shall first provide notice to the other Party of any such process requiring such disclosure upon receipt thereof in order to provide the other party with the opportunity to petition the court or administrative body to prevent such disclosure.
Information will not be considered to be Confidential Information if it (i) is already, or otherwise becomes, publicly known by third parties other than as a result of an act or omission of the receiving Party; (ii) is lawfully received, after disclosure hereunder, from a third party having the right to disseminate the information to the receiving Party and without restriction on disclosure; (iii) is furnished to others by the disclosing Party without restriction on disclosure; or (iv) can be shown by the receiving Party to have been independently developed by such Party without the use of or reference to the Confidential Information of the disclosing Party.
The Parties agree that any breach by a Party or any of its directors, officers, partners, employees, agents or representatives of any provisions of this Section 8 may cause immediate and irreparable harm to the other Party and that, in the event of such breach, the injured Party will be entitled to seek injunctive relief as well as any other remedy available to the injured Party at law or in equity.
Indemnification. Customer shall indemnify, defend and hold Company, its affiliates and their respective members, managers, officers, employees, agents, representatives, successors and assigns (collectively, “Indemnified Parties” and each, an “Indemnified Party”) harmless from and against any damages, liabilities, or costs finally awarded against any Indemnified Party or agreed to by Customer as settlement or compromise, and Customer will defend the Indemnified Parties against any claim, suit, or proceeding brought against such Indemnified Party, relating to: (a) any modification or alteration of the Platform or Services; (b) any unauthorized use of the Platform, (c) breach of representation, warranty or covenant made by Customer; and (d) breach of this Agreement or Statement of Work.
Notices. Any notice or other communication required or permitted hereunder (“Notice”) shall be in writing and shall be delivered personally, sent by first class mail, postage prepaid, sent electronically or sent by means of overnight delivery to the address set forth on the signature page hereto. Any Party may by Notice given in accordance with this Section 11 to the other Party (a) designate another address or Person for receipt of notices hereunder or (b) change such Party’s address or other information for the purpose of notices to that Party. All such notices, requests and other communications will if delivered personally to the address as provided in this Section 11, be deemed given upon delivery, and if delivered by overnight delivery in the manner described above to the address as provided on the signature page, be deemed given upon receipt.
Non-Exclusivity. Customer acknowledges and agrees that this Agreement does not require Company to work exclusively for Customer and that Company is free to work for any other person or entity including direct or indirect competitors of Customer.
Non-Solicitation. During the Term and for a period of two (2) years following termination of this Agreement, Customer shall not, directly or indirectly, for Customer or on behalf of a third person or entity (“Person”), (a) induce or attempt to induce any employee or consultant of the Company or any of its affiliates to leave the employ or engagement of Company or its affiliates, or in any way interfere with the relationship between any such Person and any employee or consultant of Company or any of its affiliates, (b) solicit, attempt to solicit or hire any employee or consultant of Company or any of its affiliates or solicit, attempt to solicit or hire any former employee or former consultant of any such Person within one year after such Person ceased to be an employee or consultant thereof, or (c) induce or attempt to induce any investor, customer, referral source, supplier, vendor, licensee or other business relation of Company or any of its affiliates (each of the foregoing, a “Business Relation”) to cease doing business with such Person or in any way interfere with the relationship between any such Business Relation and Company or any of its affiliates.
Non-Disparagement. During and after the Term, Customer shall not intentionally make any statements which materially disparage the business reputation of Company or its affiliates, nor the business or personal reputation of its employees, members, managers, employees or other representatives. Notwithstanding the foregoing, nothing in this Section 14 shall prohibit Customer from making truthful statements when required or requested by a court or other governmental body of competent jurisdiction or as otherwise required or required to be permitted by law.
Enforcement. Because Company’s services are unique and because Customer has access to Confidential Information, the Parties hereto agree that the Company and its affiliates would be irreparably harmed by, and money damages would be an inadequate remedy for, any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, Company and its affiliates and/or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security.
Entire Agreement; Website. This Agreement, together with a Sales Order and any other documents and instruments executed in connection with the consummation of the transactions contemplated hereby contain the entire agreement between the Parties with respect to the transactions contemplated hereby, and supersede all prior agreements, written or oral, with respect thereto. Without limiting the foregoing, the Parties acknowledge and agree that the website of Company located at https://www.salesrevv.com/ may contain updated information and shall supersede and control over the terms set forth in this Agreement.
Amendment and Modification; Assignment. This Agreement may be amended, modified or supplemented only by a written agreement signed by all the Parties. Customer may not assign or otherwise transfer this Agreement without the prior written consent of Company.
No Third Party Beneficiaries. The provisions of this Agreement are for the sole benefit of the Parties hereto. This Agreement confers no rights, benefits, or claims upon any person or entity not a Party hereto.
Waiver of Compliance; Consents. Any failure of any Party to comply with any obligation, covenant, agreement or condition herein may be waived by the other Party by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
Applicable Law; Venue. This Agreement shall be governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the internal laws of the State of Delaware without regard to its conflicts of laws principles. The Parties agree that any legal action arising out of or relating to this Agreement shall be brought in the State courts of the State of Delaware. Each Party submits to and accepts the exclusive jurisdiction of such courts.
Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Interpretation. Unless the context requires otherwise, all words used in this Agreement in the singular number shall extend to and include the plural, all words in the plural number shall extend to and include the singular and all words in any gender shall extend to and include any gender.
Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, and if the rights or obligations of any Party under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, and (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement.
Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement or any Statement of Work, including, but not limited to, the following provisions: Intellectual Property, Fees and Payment, Confidential Information, Indemnification, Applicable Law, Survival and Attorneys’ Fees.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Force Majeure. In the event a Party’s performance is delayed or prevented because of circumstances beyond its reasonable control (and without fault or negligence of such Party) including, without limitation, war or similar unrest, fire, act of God or the public enemy, the elements, fire, explosion, accidents, acts of terrorism, break downs, trade union and labor disputes, embargoes and other public disturbance, inability to obtain materials, supplies, permits or transportation facilities such delay in performance shall not be considered a breach of this Agreement provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the delaying Party to the other Party and that the delaying Party shall use commercial reasonable efforts to mitigate such delay. If such delay continues for ninety (90) calendar days or more, the non-delaying Party may upon notice to the delaying Party immediately terminate this Agreement.
Further Assurances. After the Closing, each Party covenants and agrees that it shall from time to time, at the request of the other Party and without further cost or expense to such other Party, execute and deliver such other instruments of conveyance and transfer and take such other actions as such other Party may reasonably request in order to consummate the transactions contemplated by this Agreement.
Attorneys’ Fees. In any action to enforce one’s rights hereunder, the non-prevailing Party in such action shall pay the reasonable attorneys’ fees and expenses incurred by the prevailing Party.
Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute but one instrument. This Agreement and any amendments hereto, to the extent signed and delivered by electronic mail or PDF, shall be treated in all manner and respects and for all purposes as an original agreement and shall be considered to have the same binding legal effect as if it were the original signed version hereof delivered in person.
