In addition to other terms defined elsewhere, the following terms have the following meanings:
“Affiliates” means any entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means (I) ownership of at least fifty percent (50%) of the outstanding voting shares of the entity or (ii) the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise. All references to Oversight in this Agreement shall be deemed to be references to Oversight and its Affiliates and all references to Client in this Agreement shall be deemed to be references to Customer and its Affiliates.
“Documentation” means the supporting documentation and materials embedded in the Service.
“Order” means the document executed by the parties under this Agreement by which Client or its Affiliate procures Services. Each Order will set forth the applicable Term (as defined on the applicable Order) and the Service Fees (as defined in Section 4 below). Each Order shall constitute a separate and independent contractual obligation between the parties. “Services” means Oversight’s Software-as-aService provided to Client under this Agreement and as described more specifically on the applicable Order.
2.1. Right to Use the Service. Subject to payment of the applicable Service Fees, Oversight will provide the Services described in the applicable Order and in accordance with the Hosting Guide attached to this Agreement as Exhibit 1. Oversight grants Client, and Client accepts from Oversight, a non-exclusive, non-transferable, right to use the Services during the Term. The Services will be used subject to limitations set forth on the applicable Order. Client is responsible for the use of the Services by any person to whom Client has given access to the Services, and any person who gains access to the Data (as defined in Section 7.2 below) via the acts or omissions of Client.
2.2. Restrictions. Client will only use the Services for its own internal business and may not use the Service as part of providing an application service offering, or any other renting or leasing of Service as part of an offering to unapproved third parties. Client will not, directly or indirectly, without the prior written consent of Oversight: (a) sublicense, transfer, or otherwise assign its rights in the Service or the Documentation to any third party nor allow any third-party to access or use the Service or the Documentation; (b) modify the software elements of the Service or the Deliverables; (c) create derivative works of the Service or the Documentation or any components thereof; (d) translate, reverse engineer, de-compile, or disassemble the software elements of the Service for any other reason; or (e) copy the software elements of the Service or the Documentation, in whole or in part, except as permitted by this Agreement. The Service may only be used for lawful purposes; transmission of any material which is threatening, obscene, libelous, defamatory, discriminatory, or is otherwise offensive or illegal will constitute a material breach of this Agreement. Client must retain all legends relating to the copyright, trademarks, patents, or confidentiality on all copies of the Documentation or any print of a screen display from the Service.
- TERM AND TERMINATION.
3.1. Term. This Agreement will commence on the Effective Date and continue in full force and effect until the last to expire of the Order(s). The term of each Order is as specified Oversight Master Agreement Confidential Version: 10.27.21 Confidential Page 3 of 22 in the particular Order. As used in this Agreement, “Term” means, collectively, the Initial Term (as defined in the applicable Order) and each Renewal Term (as defined in the applicable Order).
3.2. Termination for Cause. This Agreement or any Order may be terminated by a party if the other party commits any material breach of this Agreement or any Order which is not remedied within thirty (30) days of notice of such breach to the breaching party.
3.3. Termination. Either party may terminate the Service effective at the expiration of the then current Term upon ninety (90) days prior written notice.
3.4. Effect of Termination. Upon the earlier of termination of an Order or this Agreement: (a) except as expressly provided in this Section 3, all rights and obligations of the parties hereunder will immediately terminate; (b) each party will return or destroy all copies of the Confidential Information of the other party in its possession or under its control; (c) Oversight shall cease providing the Services; and (d) each party’s obligation to pay all amounts due to the other party accrued prior to termination (or, where applicable, after termination) will not be affected. Except as otherwise set forth herein, the Service Fees are non-refundable. Oversight will retain Data for up to sixty (60) days after termination of this Agreement (the “Data Retention Period”). During the Data Retention Period, Client may download a copy of the Data at no additional charge. Following the earlier of (i) expiration of the Data Retention Period, (ii) the date upon which Client retrieves Data, or (iii) Client confirms it will not download its Data, Oversight will delete the Data from any systems on which Data is present without further notice to Client. 3.5. Survival. The provisions of this Agreement, which by their nature survive expiration or termination of this Agreement, shall survive.
- PAYMENT TERMS; TAXES.
4.1. Fees. All Service fees for the scope of Services set forth in the applicable Order (the “Service Fees”) are billed annually in advance in U.S. Dollars net of any foreign, federal, state, or local taxes, including without limitation, sales taxes, use taxes, VAT, excise taxes, duties, and import taxes (collectively, “Taxes”). Client will reimburse Oversight for the pre-approved actual and reasonable travel and living expenses incurred by Oversight in connection with the delivery of any training or other professional services by Oversight to Client as set for a particular Order.
4.2. Payment Terms. Client will pay the Service Fees and expenses (as applicable) within thirty (30) days of the invoice date, without deduction or setoff. If Client believes an invoice or charge is incorrect, Client must contact Oversight in writing within thirty (30) days of the invoice date or charge to be eligible to receive an adjustment or credit. Any undisputed payment not made when due will be subject to late charges of 1.5% per month (prorated on a daily basis beginning on the past due date). Client will be liable for any reasonable attorneys’ fees or other costs associated with collecting late payments.
4.3. Taxes. Client is responsible for, and must pay, any and all Taxes (other than Taxes based on Oversight's income) imposed in connection with the Services and any other services provided in connection with this Agreement.
- SERVICE AVAILABILITY.
5.1. Service Levels. The Service will be available at least 99% of the time during each month excluding Excusable Downtime (the “Uptime Commitment”). “Excusable Downtime” means time that the Service is not available to Client because of (a) maintenance which is scheduled (i) each week between 12:00 p.m. and 3:00 p.m. Saturday Eastern time, or (ii) during the third week of each month between Oversight Master Agreement Confidential Version: 10.27.21 Confidential Page 4 of 22 6:00 p.m. Saturday and 6:00 a.m. Sunday Eastern time (collectively, the “Standard Windows”) or planned maintenance which cannot be reasonably scheduled during the Standard Windows for which at least 24 hours advance notice is given, (b) outages caused by misuse of the Service by Client, (c) failure of the Internet, and (d) events contemplated by Section 12.7. If the Uptime Commitment is not met in any month, Oversight will issue Client a credit based on the percentage of Service Fees calculated in accordance with the table below. Such credit will be applied to extend the then current Term or against subsequent invoice(s), as determined by Oversight in its reasonable discretion.
|Availability Percentage in any Month
|Less than 99 % but at least 97.0%
|5% of the annual Service Fee divided by 12
|Less than 97.0% but at least 95.0%
|10% of the annual Service Fee divided by 12
|Less than 95.0%
|15% of the annual Service Fee divided by 12
If in any period of 3 consecutive months the Availability Percentage during such period is less than 95%, Client will have the right, upon written notice to Oversight, to terminate the Order(s) for the affected Services and receive a refund of the Service Fees actually paid for the unexpired portion of the then-current Term for the affected Services.
5.2. Client’s Equipment. Client is solely responsible to obtain and maintain its own computer hardware, software and telecommunications connections services as required to access Services.
6.1. Service Warranties. Oversight warrants that the Services will be performed in (i) a good, professional and workmanlike manner; (ii) in substantial accordance with the Documentation; and (iii) in accordance with the terms of this Agreement. Client will promptly notify Oversight in writing of any failure of the Services to meet the foregoing warranties. Client will assist Oversight in identifying and reproducing the issue. Oversight will diligently and in good faith attempt to correct the reported defect by repairing or modifying the Service within a commercially reasonable period of time, not to exceed forty-five (45) days. If Oversight is unable to cure that defect by repairing or modifying the Service as provided herein, then Client may elect to terminate its right to use the Service, and Client will be entitled to a refund of the Service Fees actually paid to Oversight for the unexpired portion of the then current Term.
6.2. No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, OVERSIGHT, ITS AFFILIATES, THEIR THIRD -PARTY LICENSORS, DISCLAIM ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY.
- PROPRIETARY RIGHTS.
7.1. Generally. Oversight retains all right, title and interest in and to the Service, together with all patents, copyrights, trademarks, trade names, trade secrets, technology, ideas, know-how, and other intellectual property and proprietary rights pertaining thereto and all derivative works and improvements to the same.
7.2. Client Data. 7.2.1. Oversight does not own any data, information, or material that is submitted to the Service by Client (“Data”). Client will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of, or right to use, Data. Oversight will only use the Data for purposes of providing the Service, providing support for the Services (“Support”), and confirming Client’s compliance with the terms of this Agreement. In addition, Client grants Oversight a non-exclusive, royalty-free license to Use anonymized Client Data in its business intelligence initiatives. “Anonymized” means data that is not attributable to Client, a data subject or otherwise identifiable as Client Data. “Use” means analysis for purposes of enhancing existing solutions, creating, displaying valuable indicators based on client resolutions to increase efficiencies, new solutions and tools, industry and regional key performance indicators (KPIs), benchmarks, and statistical results such as averages and means, for the distribution to and the benefit of Oversight’s clients generally. As a cloud-based data-processor we will leverage anonymized client data to provide greater value to benefit all of our clients going forward.
7.2.2. Client will only submit Data to Oversight using Oversight-approved methods. Sending Data by a non-approved method such as email is strictly prohibited. Oversight’s receipt of Data under this Agreement denotes Oversight’s right to process such Data. Reasonable requests to delete or purge Data that was incorrectly or inadvertently sent will be carried out by deleting such data from storage and processing systems.
7.2.3. Oversight will comply with the Data Management and Security principals set forth in Exhibit 2 to this Agreement and the Data Protection Agreement set forth in Exhibit 3 to this Agreement.
7.2.4. The parties acknowledge and agree that the Services are not intended for use in the storage, processing or handling of data that is (i) Payment Card Industry data, (ii) Protected Health Information subject to the Health Insurance Portability and Accountability Act, as amended (“HIPAA”), (iii) Sensitive Personal Data (iv) Educational Records, (v) about individuals under the age of 18 or (vi) the following unhashed data elements (a) Social Security number; (b) driver’s license number or government issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account. “PCI data” means Cardholder Data as defined by the Payment Card Industry Data Security Standard (“PCI DSS”) v4.0, Cardholder Name excluded, “Protected Health Information” has the meaning set forth in HIPAA, “Educational Records” has the mean set forth in the Family Educational Rights and Privacy Act (“FERPA”) and “Sensitive Personal Data” as defined in Article 9 of the GDPR or other applicable data protection legislation.
7.2.5. During the Term, Oversight will perform daily and weekly back-ups of Data. Daily back-ups are stored on site and weekly backups are securely transferred from the primary data center to the disaster recovery (“DR”) site.
8.1. Confidential Information Defined. “Confidential Information” means any technical data, pricing, know-how or business information specific to Client or Oversight which is marked as confidential or contains a similar legend or which from all the relevant circumstances would reasonably be assumed to be confidential and proprietary. Confidential Information does not include information which (a) was in the public domain at the time it was disclosed or becomes in the public domain through no fault of the receiver; (b) can be shown by written documentation to have been known to the receiver, without restriction, at the time of disclosure; (c) was independently developed by the receiver without any use of the discloser’s Confidential Information; or (d) becomes known to the receiver, without restriction, from a source other than the discloser without breach of any confidentiality agreement and otherwise not in violation of the discloser’s rights.
8.2. Nondisclosure of Confidential Information. Each party will treat the Confidential Information of the other party in a confidential manner with the same degree of care as such party treats its own proprietary information of like importance, which will be no less than a reasonable degree of care. This Section 8 will not prohibit disclosure of Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, the receiver will furnish prompt notice thereof to enable the discloser to seek a protective order or otherwise prevent such disclosure. The obligations of this Section will survive termination for any reason for a period of three (3) years.
8.3. Remedies. The parties agree that each party shall be entitled to seek equitable relief to protect its interests under this Section 8, including preliminary and permanent injunctive relief, as well as money damages. Nothing stated herein shall be construed to limit any other remedies available to the parties for breach of this Section 8.
9.1. By Oversight. Oversight will defend or, at its option, settle, any third-party claim (a “Claim”) brought against Client, its Affiliate or their respective officers, directors, employees or agents relating to (i) any infringement of the intellectual property (“IP”) rights of any third party by the Services when used as permitted under the terms of this Agreement; (ii) bodily injury or tangible property damage caused by the acts or omissions of Oversight or its employees or agents; (iii) Oversight’s failure to comply with the Laws applicable to the Services; or (iv) Oversight’s fraud, gross negligence or willful misconduct. In the event of an IP Claim, or if Oversight determines that the Services infringe as set forth above, Oversight will, at its sole option and expense, procure the right to use the Services or replace or modify the Services so as to avoid infringement. If neither of such alternatives is, in Oversight’s opinion, commercially reasonable, Oversight’s sole liability, in addition to its obligation to reimburse awarded damages and costs as set forth above, is to refund to Client any unearned prepaid amounts for such Services, in which event this Agreement will terminate immediately.
9.2. By Client. Client will defend or, at its option, settle, any Claim brought against Oversight, its Affiliate or their respective officers, directors, employees or agents relating to or arising out of (i) bodily injury or tangible Oversight Master Agreement property damage caused by the acts or omissions of Client or its employees or agents; (iii) Client’s failure to comply with the Laws applicable to the Services; or (iv) Client’s fraud, gross negligence or willful misconduct.
9.3. Process. The foregoing indemnities are subject to the indemnified party taking all reasonable steps to mitigate any potential expenses and providing the indemnifying party with (i) prompt written notice of any such Claim or possibility thereof; (ii) sole control over the defense or settlement of such Claim; and (iii) all necessary information and assistance to settle or defend any such Claim. The failure of the indemnified party to comply with the foregoing requirements shall not relieve the indemnifying party of its obligations under this Section except to the extent the indemnifying party is prejudiced by such failure.
9.4. Exclusive Remedy. This Section 9 states the entire liability and obligation of Oversight, and the exclusive remedy of Client, with respect to any actual or alleged infringement of any intellectual property right by the Services provided hereunder. 10. LIMITATION OF LIABILITY.
- LIMITATION OF LIABILITY.
10.1. Limit on Certain Damages. In no event shall Oversight have liability for any special, indirect, incidental, punitive, speculative, expectation, or consequential damages, including damages for lost profits, arising in any way out of this Agreement or any order under any cause of action, whether or not Oversight has been advised of the possibility of such damages. This limitation shall apply notwithstanding the failure of essential purpose of any limited remedy.
10.2. Limit on Total Liability. Except for the indemnifications in Section 9, in no event shall the maximum cumulative liability of Oversight, in connection with the Services and this Agreement or any Order, regardless of the form of action, exceed the fees paid by Client to Oversight during the then-current Term of the applicable Order.
10.3. Limit on Actions. No action, regardless of form, arising from or pertaining to the Services may be brought more than two years after such action has accrued.
11.1. Coverage Generally. Oversight Systems will, at a minimum, maintain the insurance coverage listed below:
11.1.1. Commercial General Liability Insurance with at least $1,000,000 per occurrence and $2,000,000 in the aggregate.
11.1.2. Full statutory coverage for Workers’ Compensation and Employers Liability with limits as required by law.
11.1.3. Cyber Liability / Professional Liability coverage with a limit of at least $5,000,000;
11.1.4. Commercial Umbrella insurance with a limit of $5,000,000 per occurrence and in the aggregate.
11.1.5. Hired and non-owned Auto coverage with a limit of at least $1,000,00 per occurrence.
11.2. Certificates. Upon request, Oversight Systems will furnish Client with a certificate of insurance listing the types and limits of insurance as set forth above.
12.1. Notices. All notices under this Agreement will be in writing and mailed or delivered (including by email) to each party as set forth on the cover page (as it may be modified by the recipient by notice to the other). All such notices will be effective upon delivery, but when emailed, such notices will be effective only upon confirmation of receipt.
12.2. Assignment. This Agreement, including any Order shall not be assigned or transferred by Client, without the prior written consent of Oversight (which shall not be unreasonably withheld) and any attempt to so assign or transfer this Agreement without such consent shall be null and void. This provision shall not apply in the case of the sale of substantially all of the stock or assets of Client where the obligations under this Agreement are assumed by the successor entity. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each party’s respective successors and permitted assigns.
12.3. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of New York, without reference to conflict of laws principles. Each party hereby waives any right to trial by jury.
12.4. Independent Contractors. The relationship of Oversight and Client established by this Agreement is that of independent contractors.
12.5. Severability. In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.
12.6. No Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of either party thereafter to enforce any such provisions.
12.7. Force Majeure. Except for the obligation to make payments, neither party shall be liable to the other for its failure to perform any of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its reasonable control including acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, fire, flood, epidemic, pandemic, restrictions, strikes, and/or freight embargoes.
12.8. Export Restrictions. Client represents and warrants that Client is not (a) located in an embargoed country as designated by the Office of Foreign Asset Control of the Treasury Department (an “Embargoed Country”), or (b) listed on the prohibited persons list maintained by the Bureau of Industry and Security of the Department of Commerce (the “Prohibited Persons List”).
12.9. Attorneys Fees. Should it become necessary to take any action to enforce the terms of this Agreement or any Order, the prevailing party shall be entitled to recover its actual and reasonable attorney’s fees and costs.
12.10. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.
12.11. Publicity. Client agrees that Oversight may include identification of Client as a client on Oversight’s marketing materials, provided that the identification of Client is no more prominent than the identification of Oversight’s other clients and is otherwise consistent with Oversight’s practice of identifying its clients on Oversight’s marketing materials at the time.