This Master Agreement (the “Agreement”) is made effective on the dates on the order form (“Effective Date”) by and between One Kosmos, Inc., having an office and place of business at ONE KOSMOS TECHNOLOGY PRIVATE LIMITED., a company incorporated under the provisions of the Companies Act, 2013, having its registered office at 12, SHREEPAL COMPLEX, SUREN ROAD, ANDHERI(EAST), MUMBAI 400 093 (“Supplier”) and the organization listed on the order form (“Customer”). Supplier and Customer are sometimes individually referred to in this Agreement as a “Party” and collectively as the “Parties”.
1.1 Supplier’s obligations. Supplier shall make the service available to Customer pursuant to this Agreement and the applicable order form during the term, and grants to the Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the term to allow its users to access and use the service in accordance with the documentation, solely for Customer’s business purposes. Customer agrees that its purchase of the service or the professional services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Supplier with respect to future functionality or features. Supplier will comply with all applicable laws in its provision of the service. During the term, Supplier shall provide the service in accordance with Supplier’s Service Level Agreement, which is Exhibit B attached hereto. Supplier shall use commercially reasonable efforts to make the service available to Customer 24 hours a day, 7 days a week, every day of each year (except for any unavailability caused by a force majeure event).
1.2 Customer’s obligations.
1.2.1. Customer is responsible for all the activities conducted under its users’ logins to the service. Customer shall use the service in compliance with this Agreement, the applicable order forms, documentation and all applicable laws and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the service or any part thereof, or make it available to anyone other than its users; (ii) send or store in the service any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the health insurance portability and accountability act, Gramm-Leach-Bliley Act (GLBA), or the Payment Card Industry Data Security Standards (PCI DSS); (iii) send or store infringing or unlawful material in connection with the service; (iv) send or store malicious code to the service; (v) attempt to gain unauthorized access to or disrupt the integrity or performance of the service or the data contained therein; (vi) modify, copy or create derivative works based on the service or any portion thereof; (vii) access the service for the purpose of building a competitive product or service or copying its features or user interface; and (viii) delete, alter, add to or fail to reproduce in and on the service the name of Supplier and any copyright or other notices appearing in or on the service or which may be required by Supplier at any time.
1.2.2. Any use of the service in breach of this agreement, documentation or order forms by Customer or its users which in Supplier’s judgment threatens the security, integrity or availability of the service may result in Supplier’s immediate suspension of Customer’s access to the service; however, Supplier will use commercially reasonable efforts under the circumstances to provide customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
2. SECURITY AND SUPPORT.
2.1 Security. Supplier shall maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the service and the customer data as described in the applicable Supplier documentation. For purposes of the standard contractual clauses attached to the Data Protection Agreement, when and as applicable, customer and its applicable affiliates are each the data exporter, and customer’s signing of or entering into this agreement, and an applicable affiliate’s signing of or entering into an order form, shall be treated as signing of the standard contractual clauses and their appendices. In the event of a security breach, Supplier will promptly notify Customer in accordance with the security breach management procedures set forth therein, but in no event longer than seventy-two (72) hours of becoming aware of such security breach.
2.2 Support Services. During the term, Supplier shall provide support services to Customer in accordance with Supplier’s then-current support policy, a current copy of which is attached hereto as an exhibit and as identified in an order form. In the event that the level of support is not identified in the order form, customer shall receive a “basic” level of support that is included in the service at no additional cost. Any updates or modifications to the support services will not materially diminish Supplier’s responsibilities under the support policy during the term.
Each party agrees to protect the Confidential information (as defined below) of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event using less than a reasonable standard of care. A party shall not: (i) disclose or use any confidential information of the other party for any purpose outside the scope of this agreement, except with the disclosing party’s prior written permission and (ii) disclose or make the other party’s confidential information available to any party, except those of its employees, contractors, and agents that have signed an agreement for disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. Confidential information shall not include any information that (a) is or becomes generally known to the public, other than as a result of the act or omission of the receiving party; (b) were rightfully known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (c) is lawfully received from a third party without breach of any obligation owed to the other party; or (d) was independently developed by a party without breach of any obligation owed to the other party. If a party is compelled by law to disclose Confidential Information of the other party, it shall provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy in law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it.
4.1 All Customer Data, Output, and any developments or improvements to Customer’s systems or software to access or utilize the Services is and shall remain the sole property of Customer. Supplier shall not, without prior written authorization from Customer, alter, modify or change in any way any of the Customer Data. Supplier shall not sell, assign, lease, disseminate or otherwise dispose of the Customer Data or any part thereof to any other person, nor shall Supplier commercially exploit any part of the Customer Data. For the avoidance of doubt, Supplier may not use Customer Data to create derivative products or services without Customer’s express written consent.
4.2 All property shall be returned to their respective owners upon the later of (i) expiration or termination of this Agreement. Neither Party shall use, nor permit others to use, the property of the other except as permitted in this Agreement.
5. DELIVERY AND ACCEPTANCE.
5.1 Supplier will deliver to Customer each Service, on or before the scheduled delivery date specified in the applicable Order Form.
5.2 For each Service, Supplier will provide to Customer at least one (1) copy (in printed or electronic form) of all available Documentation for such Service. Supplier will promptly deliver to Customer any updates or enhancements to such Documentation when such updates or enhancements become available to Supplier.
6. COMPLIANCE WITH LAWS.
6.1 Supplier represents and warrants that it has and will obtain all necessary regulatory approvals, licenses and permits applicable to its business, and that it does and will comply with all applicable laws and regulations and rules that may be in effect during the Term as they concern the subject matter hereof.
7. FEES, EXPENSES, AND TAXES.
7.1 Fees. Customer agrees to pay Supplier all fees set forth in the applicable Order Form (“Fees”) in accordance with this Agreement. If not otherwise specified on an Order Form, all such fees (except fees subject to a good faith dispute) will be due within thirty (30) days of Customer’s receipt of an invoice provided that if an invoice is sent electronically to the billing contact email address provided by Customer for billing, then it shall be deemed received by Customer as of the date it was sent. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to Supplier hereunder are non-cancelable and non-refundable. All Fees are based on access rights acquired and not actual usage. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, (i) Supplier reserves the right to suspend the Service upon thirty (30) days written notice until such amounts are paid in full, and (ii) Supplier will have the right to charge interest at a rate equal to the lesser of one and one- half percent (1.5%) per month or the maximum rate permitted by applicable Law until Customer pays all amounts due; provided that Supplier will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.
7.2 Taxes. Fees do not include and may not be reduced to account for any taxes including any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively “taxes”). Customer is responsible for paying all taxes associated with its purchases hereunder.
8. WARRANTIES AND DISCLAIMER.
8.1.1 Service. Each party warrants that it has the authority to enter into this Agreement. Supplier warrants that during the Term: (i) the Service shall be performed materially in accordance with the applicable Documentation, (ii) Supplier will employ then-current, industry-standard measures to test the Service to detect and remediate Malicious Code designed to negatively impact the operation or performance of the Service, and (iii) the overall functionality of the Service will not be materially decreased as described in the applicable Documentation. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH UNDER THIS SECTION 11, SUPPLIER AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES RELATING TO THE SERVICE, PROFESSIONAL SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED. SUPPLIER MAKES NO WARRANTY REGARDING ANY NON-SUPPLIER APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE.
9. LIMITATION OF LIABILITY.
9.1 IN NO EVENT WILL EITHER PARTY (OR SUPPLIER’S THIRD PARTY LICENSORS) 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 FOR (A) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) ANY LOST PROFITS OR REVENUES, OR (D) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (THE “LIABILITY CAP”). THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT (1) CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE ‘FEES’ SECTION ABOVE; (2) CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 14 (INDEMNIFICATION); (3) CLAIMS FOR BREACH OF CONFIDENTIALITY OR BREACH OF SUPPLIER’S INFORMATION SECURITY OBLIGATIONS RESULTING IN UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA (WHICH BOTH SHALL BE LIMITED TO TWO TIMES THE LIABILITY CAP); AND (4) CLAIMS FOR GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT IN THE PERFORMANCE OF THAT PARTY’S OBLIGATIONS HEREUNDER.
10.1 Supplier’s Indemnification Obligation. Subject to Section 10.3, Supplier will defend Customer from any and all claims, demands, suits or proceedings (“Claims”) brought against Customer by a third party alleging that the Service, as provided by Supplier to Customer under this Agreement infringes any patent, copyright or trademark or misappropriates any trade secret of any third party (each, an “infringement claim”).
10.2 Customer Indemnification Obligation. Subject to Section 10.3, Customer will defend Supplier from any and all claims brought against Supplier by a third party alleging a violation of third party’s rights arising from Customer’s provision or use of the customer data. Customer will indemnify Supplier for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Customer, in connection with such claims.
10.3 Indemnity Requirements. The party seeking indemnity under this Section 10 (“Indemnitee”) must give the other party (“Indemnitor”) the following: (a) prompt written notice of any claim for which the Indemnitee intends to seek indemnity, provided that the failure to do so shall have no effect on the indemnitor’s obligations to the extent the indemnitor is not prejudiced by any delay, (b) all cooperation and assistance reasonably requested by the indemnitor in the defense of the claim at the Indemnitor’s sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense and provided any settlement fully releases the Indemnitee and does not admit any liability on behalf of the Indemnitee.
11. TERM, TERMINATION, AND EFFECT OF TERMINATION.
11.1 Term. The Term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms have expired or have otherwise been terminated. Subscriptions to the Service commence on the subscription start date, and are for a period, as set forth in the applicable Order Form (“Term”). Except as otherwise specified in an Order form, subscriptions to the service will automatically renew for additional terms equal to the expiring subscription term, unless and until either party gives the other notice of non-renewal at least sixty (60) days prior to the end of the then-current Term.
11.2 Termination. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer pursuant to this section 11.2, Supplier will refund Customer a pro-rata portion of any prepaid fees that cover the remainder of the applicable term after the effective date of termination and a pro-rata portion of any prepaid professional services fees that cover professional services that have not been delivered as of the effective date of termination. For clarity, a breach or termination of any Statement of Work shall not be considered a breach or termination of this Agreement or any order form.
11.3 Effect of Termination. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Service and Supplier confidential information. Termination for any reason other than termination for cause by Customer pursuant to section 11.2 shall not relieve Customer of the obligation to pay all future amounts due under all Order Forms. The sections titled “definitions,” “confidentiality,” “ownership, feedback, and statistical usage data,” “fees, expenses and taxes,” “disclaimer,” “limitation of liability,” “indemnification,” “term, termination, and effect of termination,” and “general” shall survive any termination or expiration of this Agreement.
12.1 Controlling Law, Attorneys’ Fees and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by the laws of the State of New Jersey, without giving effect to its conflicts of laws rules or the United Nations convention on the international sale of goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of New Jersey. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
12.2 Notices. All notices required or permitted under this Agreement will be in writing by commercial courier or overnight delivery service, or by certified mail, or by email and in each instance will be deemed effective upon receipt. All notices will be sent to the addresses set forth below or to such other address as may change from time to time in writing to the other Party.
One Kosmos, Inc.
100 W. Franklin Square Dr. – Ste 424
Somerset, NJ 08873
12.3 Force Majeure. If the performance of this agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, epidemic, pandemic, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
12.4 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose. There are no third-party beneficiaries under this Agreement.
12.5 Export Compliance. Each party represents that it is not named on any U.S. Government list of persons or entities with which U.S. Persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and customer will not access or use the service in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
MASTER SUBCRIPTION AGREEMENT
PART A: SAMPLE ORDER FORM
MASTER SUBCRIPTION AGREEMENT
SERVICE LEVEL AGREEMENT (SLA)
This Service Level Agreement (“SLA”) is provided under and forms an exhibit to Customer’s Master Subscription Agreement (or other, similarly- titled agreement that governs Customer’s use of the Supplier’s Service) (“MSA”). Capitalized terms used in this SLA that are not defined herein are defined as set forth in the MSA, if applicable.
Service Level Commitment:
The Service will, subject to the exceptions listed below, be available at least 99.9% of the time during any full calendar month in Customer’s production environment (“Availability Commitment”). The Availability Commitments do not apply to sandbox, beta and other test environments.
The Availability Commitment of the Service for a given month will be calculated as follows (rounded to the nearest one tenth of one percent):
Availability % = [100% x (total minutes in the month – total minutes unavailable in the month)]/Total minutes in the month
The Service will be deemed to be unavailable only if the service does not respond to HTTPS requests, (“Unavailable”).
The Service will not be deemed Unavailable for any downtime or outages relating to: (i) a Customer outage event, (ii) equipment, applications, interfaces, integrations, or systems not owned by Supplier, or Service not offered by Supplier or (iii) a force majeure event.
“Customer Outage Event” means a period of time in which Service is not available due to acts, omissions or requests of Customer, including without limitation (a) configuration changes in, or failures of, the Customer end of the network connection, (b) work performed by Supplier at Customer’s request, (c) Customer’s unavailability or untimely response to incidents that require its participation for source identification and/or resolution or (d) Customer’s failure to provide the Supplier with any requested physical or remote access to any Customer facilities, equipment or personnel.
Supplier may perform emergency maintenance for which Supplier will use commercially reasonable efforts to notify Customer at least twenty-four (24) hours in advance. For the avoidance of doubt, if the Service is unavailable due to emergency maintenance, such unavailability will be included in the availability calculation.
Service Level Credits:
For each full calendar month in which Supplier fails to meet the availability commitment of at least 99.9% (a “Service Level Failure”), Customer shall receive a Service Level Credit equal to an amount determined in accordance with this following schedule (“Service Level Credit”). The Service Level Credit shall be calculated as the applicable percentage outlined below multiplied by the annual subscription fee paid by the Customer for the then current annual period divided by twelve (12):
Service Level Credits will be issued to the entity that Supplier Invoices for the applicable Service, as a separate credit memo that can be applied towards fees payable for any subsequent annual term for that Service. If Customer elects not to renew service term prior to the application of a Service Level Credit pursuant to the preceding sentence, Customer will have the option to receive up to one (1) month of service following the termination of such service term at no charge in lieu of such Service Level Credit. Customer will not be eligible to receive a Service Level Credit if Customer’s account is delinquent. The Service Level Credits stated herein are Customer’s sole and exclusive remedy (and Supplier’s sole liability) for any claims in connection with this Service Level Agreement.
Reporting and Confirmation:
Customer may contact Supplier to report any issues by contacting the vendor’s support website.
Customer must log an incident with Supplier Customer Care within three (3) business day following any time in which the Service is unavailable, along with the following information, in order for the applicable minutes to be applied towards the availability % calculation:
- (i) The manner in which the service is not available; and
- (ii) The date and time in which the service first became not
Failure to provide such notice will forfeit the right to receive Service Level Credits. Provided such Notice is timely given, unavailable minutes will be calculated from the starting time of the incident until the time the incident is resolved by Supplier. Upon receipt of Customer’s notification, Supplier will verify Customer’s report through any available system logs and records.