Juice Analytics MSA/SaaS Agreement
This Master (Software-as-a-Service) Agreement (the “Agreement”) describes the relationship between Juice, Inc. ("Juice") and the Customer identified in an executed Sales Order ("Customer") (each of Juice and Customer, a "Party"). This Agreement, will become effective upon full execution of the Customer Sales Order by authorized representatives of both Parties (the “Effective Date”). Such Sales Order incorporates the terms and conditions as set forth herein.
PLEASE READ THESE SUBSCRIPTION TERMS CAREFULLY AND PRINT A COPY FOR YOUR RECORDS.
1. DEFINITIONS. Certain capitalized terms, if not otherwise defined on the Master Agreement Cover Page will have the meanings set forth below in this Section 1.
1.1 “Authorized User” means any individual employee, agent or contractor of Customer or Customer’s client accessing and using the Software Services on behalf of, and solely for the benefit of, Customer or Customer’s applicable client in the operation of its business.
1.2 “Confidential Information” means any non-public material or information relating to a Party which it discloses or makes available to the other Party under this Agreement, including, by way of example, Personal Data, research, strategies, inventions, processes, formulas, technologies, designs, drawings, finances, or other non-public information or trade secrets that such disclosing Party treats as proprietary or confidential. Without limiting the foregoing, Juice’s software that may be made available hereunder will constitute Confidential Information of Juice.
1.3 “Customer Content” means all data, including video, audio, photo and text content, transmitted by Customer or any Authorized User to Juice, and all trade names, trademarks, logos or trade dress owned or controlled by Customer.
1.4 “Documentation” means Juice’s standard user manuals and/or related documentation generally made available to customers of the Software Services.
1.5 “Order Form” means Juice’s standard form of ordering document pursuant to which products and services may be ordered by Customer subject to the terms and conditions of this Agreement. Once signed by both Parties, an Order Form will be considered part of this Agreement.
1.6 “Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person, including, without limitation, first, last or middle name(s), home address, billing address, or other physical address, email address, internet protocol address, telephone number, and any Sensitive Data.
1.7 “Sensitive Data” means all information that: (a) requires a high degree of protection by law and where loss or unauthorized disclosure would require notification by Customer to government agencies, individuals or law enforcement; (b) any information that, if public, could expose individuals to a risk of physical harm, fraud, or identity theft. Sensitive Data includes, but is not limited to, social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act.
1.8 “Services” mean the Software Services and the Professional Services.
1.9 “Software Services” means the Juice software services described in the applicable Order Form.
1.10 “Template” means a pre-formatted and modifiable design, and the associated design elements and underlying software, made available to Customer through the Software Services or the Professional Services that enable dashboards, reports and graphical user interfaces to be configured for Customer’s business. Template design elements include visual elements such as bar graphs, global filters and report libraries. For the avoidance of doubt, the term “Template” specifically excludes any Customer Content that may populate any Template.
2. SOFTWARE SERVICES.
2.1 Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, Juice grants Customer the right to provide Authorized Users access to the features and functions of the Software Services during the term of the applicable Order Form, solely for the number of Authorized Users specified in any Order Forms. Customer will ensure that any such Authorized User will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Juice’s Confidential Information, the Software Services, and the Documentation as are provided by this Agreement. Customer will be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User which, if undertaken by Customer, would constitute a breach of this Agreement, will be deemed a breach of this Agreement by Customer.
2.2 Access Protocols. Juice will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Software Services (the “Access Protocols”). Customer will keep, and will ensure that each Authorized User keeps, the Access Protocols strictly confidential. In the event that the confidentiality or security of any Access Protocols are breached, Customer will immediately notify Juice. Customer will be responsible for all activities that occur within the Software Services that are accessed using active Access Protocols.
2.3 Customer Content. Customer grants Juice a license to access and use the Customer Content solely in connection with Juice’s performance of the Services and to improve its products and services. Customer is solely responsible for Customer Content, including its content, accuracy and maintaining backups. Customer represents and warrants that it owns all right, title and interest in the Customer Content and possesses the necessary rights in the Customer Content to permit the Customer Content to be transmitted to and used by Juice as contemplated herein. Except for the license rights expressly set forth above, Customer retains all right, title and interest in and to the Customer Content.
2.4 Reports. Subject of the terms of this Agreement and upon receipt by Juice of full payment of fees due under the applicable Order Form, Customer will be the exclusive owner of the content of any reports or dashboards created by Customer using the Software Services (collectively, the “Reports”). Accordingly, Customer may distribute the Reports to any third party, including clients of Customer. Notwithstanding the foregoing, Juice will maintain exclusive ownership of the Report Template.
2.5 Retained Rights; Ownership. Subject to the rights granted in this Agreement, Juice retains all intellectual property rights embodied in, or practiced by, the Documentation and Software Services (or any portion thereof, including the Templates and all text, photographs, illustrations, designs and other content provided by Juice in or through the Software Services.) Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Juice retains the right to use the foregoing for any purpose in Juice’s sole discretion.
2.6 Usage Restrictions. Customer will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code of the Software Services; (ii) modify the Software Services or the Documentation, or create any derivative product from any of the foregoing, except with the prior written consent of Juice; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Section 2.1(a). Customer will not use the Software Services and/or the Documentation except in compliance with Juice’s obligations to any third party with respect thereto incurred prior to the Effective Date, provided that Juice has notified Customer of such obligations. Customer will ensure that its use of the Software Services and the Documentation complies with all applicable laws, statutes, regulations or rules.
2.7 Modification of Software Services. Juice reserves the right to make changes to the Software Services from time to time. Any such modifications will be made available to Customer at no additional costs if such modified Software Services are made generally available to other customers at no additional costs.
2.8 Assistance to Juice. To the limited extent that may be reasonably necessary to enable Juice to perform its obligations hereunder, Customer will provide assistance to Juice, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel.
3. TECHNICAL SUPPORT
Juice will provide support services in accordance with then-current support policies available at https://juiceanalytics.squarespace.com/support-policy/. Juice reserves the right, as required and without notice to Customer, to control, restrict, and/or disable Customer’s operation over the Software Services for security or operational reasons, including to prevent any negative impact to other subscribers.
4. PROFESSIONAL SERVICES.
4.1 Professional Services. Subject to the terms and conditions set forth herein, Juice will use commercially reasonable efforts to perform the services as set forth in a Statement of Work (as defined below) separately executed by the Parties (the “Professional Services”). Juice will perform the Professional Services in a professional manner in accordance with industry standards.
4.2 Issuance of Statements of Work. Customer may request that Juice perform services by delivering a written request describing the proposed Professional Services. Juice will prepare a draft statement of work as an exhibit to this Agreement (each, a “Statement of Work”). Such Statement of Work will describe the fees, costs and expenses payable by the Customer to Juice in connection with the performance of such services. Customer, within five (5) business days after receipt of the proposed Statement of Work, will notify Juice of its acceptance of such Statement of Work. Until the acceptance in writing of the proposed Statement or Work, Juice will have no obligation to perform the proposed Professional Services. Each Statement of Work, regardless of whether it relates to the same subject matter as any previously executed Statement(s) of Work, will become effective upon execution by authorized representatives of both Parties.
4.3 Modifications. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Statement of Work by written request to Juice specifying the desired modifications. Juice will, within a reasonable time following receipt of such request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the Statement of Work. If accepted in writing by Customer, such modifications in the Statement of Work will be performed under the terms of this Agreement. Modifications in any Statement of Work will become effective only when a written change request is executed by authorized representatives of both parties.
4.4 Personnel Suitability. Juice will assign employees and subcontractors with qualifications suitable for the work described in the relevant Statement of Work. Juice may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
4.5 Customer Responsibilities. Customer will make available in a timely manner at no charge to Juice all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources required by Juice for the performance of the Professional Services. Customer will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer will provide, at no charge to Juice, office space, services and equipment (such as copiers, fax machines and broadband Internet access) as Juice reasonably requires to perform the Professional Services.
4.6 Work Product. Except as may be expressly set forth in any Statement of Work, Professional Services will be limited to configuration services as follows:
(a) Graphic Design. This section addresses Juice’s configuration of graphical user interfaces, dashboards and reports within the Software Services for the purpose of configuring such items for use with Customer’s business. All graphic designs that are configured by Juice in a way that is a derivative work of any Customer trademark or trade dress (the “Work Product”) will be a work made for hire and Juice hereby assigns all right, title and interest in the Work Product to Customer. For the avoidance of doubt, Work Product does not include any Templates.
(b) Database Integration. This section addresses the configuration of re-useable software code (an “Integration Module”) that is configured by Juice to integrate and enable automated delivery of data from Customer’s databases to the Software Services. Customer acknowledges that the Integration Module used to integrate the Customer database with the Software System: (a) was likely used by Juice in the past to integrate the Software Services with the databases of other customers and (b) will likely be modified by Juice in the future to integrate the databases of other customers. Juice, however, represents and warrants that in no event will it repurpose any Integration Module in a manner that uses or discloses Customer Confidential Information in breach of Section 6 of the Agreement.
(c) Professional Services Other Than Configuration Services. In the event that the Statement of Work describes Professional Services which are anything other than configuration services, the Parties will set forth in the Statement of Work each Party's respective rights in any intellectual property developed.
5. FEES AND PAYMENTS
5.1 General. In consideration for the Services (including, without limitation, any Software Services and Professional Services), Customer agrees to pay such amounts as may be required by the relevant Statement of Work and/or Order Form, as applicable. Except as otherwise provided in any applicable Statement of Work or Order Form, Juice will issue invoices to Customer on a monthly basis for amounts due under this Agreement. All amounts will be due within thirty (30) days after the relevant invoice date.
5.2 Expenses. Customer will reimburse Juice for reasonable travel and living expenses incurred by Juice’s employees and contractors for travel from Juice’s offices in connection with the performance of the Professional Services, and any other expenses contemplated in the applicable Statement of Work. Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under this Agreement and each applicable Statement of Work, including the cost of facilities, work space, computers and computer time, development tools and platforms, utilities management, personnel, supplies and the like.
5.3 Disputed Charges. Customer must notify Juice in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of invoice. Absent such notice, Customer will be deemed to have agreed to the charges as invoiced after the expiration of such time period.
5.4 Late Charges. Juice reserves the right to charge, and Customer agrees to pay, a late charge equal to one and one-half percent (1½%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance.
5.5 Taxes. All fees and other charges set forth herein are exclusive of taxes, assessments, surcharges, levies, or similar items assessed by a governmental body (other than taxes on the net income of Juice) on products and services now or hereafter sold or provided pursuant to this Agreement, which taxes will be paid by Customer.
6. CUSTOMER DATA
7. CONFIDENTIALITY. For purposes of this Section 7, a Party having access to Confidential Information of the other Party is a “Recipient,” while a Party providing such access is a “Disclosing Party.” Recipient will maintain all Confidential Information of the Disclosing Party in strict confidence. Except as provided in this Agreement, the Recipient will not use Confidential Information of the Disclosing Party, except to perform or otherwise fulfill the purpose of this Agreement, or disclose it in any manner to any third party, without the prior express written consent of the Disclosing Party. Recipient will restrict access to, and use of, Confidential Information of the Disclosing Party to those employees and agents of Recipient’s organization with a need to use the information to perform under or otherwise fulfill the purpose of this Agreement. Recipient will use the same degree of care in handling and safeguarding Confidential Information that it uses in handling and safeguarding its own Confidential Information, and in any case not less than reasonable care. Except for Personal Data, which will always constitute Confidential Information, the obligations set forth above will not apply to information which is: (a) already known to or otherwise in the possession of the Recipient at the time of disclosure and which was not so known or received in violation of any confidentiality obligation; (b) publicly available or otherwise in the public domain prior to disclosure by the Recipient; (c) rightfully obtained by the Recipient from any third party without restriction and without breach of any confidentiality obligation by such third party; or (d) developed by the Recipient without reference to the Disclosing Party’s Confidential Information and independent of any disclosure hereunder, as evidenced by written records. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent necessary as required by law or legal process or to comply with the order of a court or administrative body of competent jurisdiction or a government agency, provided that the Recipient will notify the Disclosing Party prior to such disclosure and will cooperate with the Disclosing Party if the Disclosing Party elects to legally contest, request confidential treatment of, or otherwise avoid such disclosure. In addition, a party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by persons and provided that the disclosures are made in confidence, (b) the party’s outside accounting firm, or (c) the party’s outside legal counsel. If the parties have entered into a separate non-disclosure agreement, the terms of this Section 7 will be construed as supplemental to the terms of the separate agreement, and will not be construed to nullify the prior, separate agreement. Notwithstanding the termination or expiration of this agreement, the obligations set forth in this Section with respect to Confidential Information will survive for not less than five years following the effective date of this Agreement’s termination or expiration, except that any Confidential Information that constitutes a trade secret shall remain subject to such sections in perpetuity.
7.1 Return of Confidential Information. Promptly following the earlier of (i) the expiration or earlier termination of this Agreement, or (ii) the request of Disclosing Party, Receiving Party will return to Disclosing Party, or destroy all Confidential Information that are in written, electronic or other tangible form (including, without limitation, all written or printed documents, notes, memoranda, email, or computer memory, whether or not prepared by Receiving Party) to the extent containing or summarizing any portion of the Confidential Information, including, without limitation, all copies and extracts of such Confidential Information. In addition, upon the request of Disclosing Party, Receiving Party will certify to Disclosing Party in writing Receiving Party’s and its Personnel’s compliance with its obligations pursuant to this Section 7.
7.2 Redundancy. Notwithstanding anything to the contrary in this Agreement, Juice may retain Confidential Information after termination of this Agreement for such period of time agreed to by Customer and Juice. To the extent that Juice is required by law to maintain copies of Confidential Information, Customer Data, or records related to disclosure or handling of Confidential Information, Juice will be under no obligation to destroy such information. Furthermore, Juice will be permitted to retain such information, as Juice reasonably determines necessary to demonstrate to Customer or any regulatory authority, Juice’s compliance with this Agreement or any applicable law or regulation. At such time as Juice’s basis for retaining such information ceases to exist, Juice will destroy such information as set forth above.
9.1 Representations and Warranties.
(a) Each Party represents and warrants to the other that the execution and performance of this Agreement does not and will not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations.
(b) Customer represents and warrants that Customer’s use of the software, products or services provided by Juice will comply with all applicable laws, rules and regulations.
(c) Juice warrants that the Software Services will conform in all material respects to the Documentation. Notwithstanding any other provision of this Agreement, Customer acknowledges and agrees that its sole and exclusive remedy, and Juice’s sole and exclusive obligation, with respect to any breach of the foregoing warranty will be the support services set forth in Section 3 TECHNICAL SUPPORT.
9.2 No Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT, ALL MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY JUICE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND JUICE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
10. LIMITATION OF LIABILITY
10.1 Limitations. NEITHER PARTY WILL HAVE ANY LIABILITY OR OBLIGATION TO THE OTHER EXCEPT AS PROVIDED IN THIS AGREEMENT. IN NO EVENT SHALL JUICE BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER TORT, CONTRACT, OR STRICT LIABILITY. JUICE’S LIABILITY FOR ANY OTHER DAMAGES ASSERTED BY CUSTOMER WILL BE LIMITED TO CUSTOMER’S ACTUAL DAMAGES AND WILL IN NO EVENT EXCEED THE AMOUNTS PAID TO JUICE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE LAST CLAIM BY CUSTOMER. THE DISCLAIMERS AND EXCLUSIONS CONTAINED HEREIN ARE INDEPENDENT OF ANY EXCLUSIVE REMEDY AND WILL APPLY NOTWITHSTANDING THE FAILURE OF SUCH EXCLUSIVE REMEDY. SOME STATES DO NOT ALLOW THE DISCLAIMER OR LIMITATION OF DAMAGES RELATING TO PERSONAL INJURY, SO THE ABOVE DISCLAIMER OF, AND LIMITATION OF LIABILITY
10.2 Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
11.1 Indemnification by Juice.
(a) Juice will defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any claim by a third party that the Software Services infringe or misappropriate any U.S. patent issued as of the Effective Date or any copyright or any trade secrets under U.S. law, provided that Customer gives Juice (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend such claim. Notwithstanding the foregoing, Juice will have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Juice software or services with products not furnished or approved by Juice; (2) any Customer breach of this Agreement including any use of Software Services in a manner that exceeds the access rights granted herein; or (3) the Customer Content (circumstances under the foregoing clauses (1), (2) and (3) collectively, the “Customer Indemnity Responsibilities”).
(b) In the event of an infringement action against Juice with respect to any Services provided by Juice hereunder, or in the event that Juice believes that such an action is likely, Juice may, at its option (i) appropriately modify such software and/or services so that they become non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Agreement on written notice to Customer. The obligations set forth in this Section will constitute Juice’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.
11.2 Indemnification by Customer. Customer will indemnify, hold harmless, and, at Juice’s option, defend Juice from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Customer Indemnity Responsibilities. In the event that Juice elects to require Customer to provide defense for such claim, Juice agrees to give Customer (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement thereof; and (iii) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer will not settle any third-party claim against Juice unless such settlement completely and forever releases Juice with respect thereto or unless Juice provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Juice, Juice may participate in such defense at its own expense by counsel of its choice.
12. TERM AND TERMINATION
12.1 Agreement. Unless otherwise agreed by the parties in an Order Form, this Agreement will have an initial term of one (1) year from the date of execution hereof; provided, however, the terms and conditions of this Agreement will remain in full force and effect until (i) the completion of all outstanding Statements of Work hereunder and (ii) the expiration or termination of any and all Order Forms hereunder executed prior to the end of the term. Unless otherwise agreed by the parties in an Order Form, upon expiration of the Order Form term, the Order Form will automatically renew for the same term unless Customer provides Juice thirty (30) days prior to the expiration of the then-current Order Form term.
12.2 Termination for Breach. Either Party may terminate this Agreement and/or any applicable Order Form immediately upon written notice in the event that the other Party materially breaches this Agreement and thereafter (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof. Without limiting the foregoing, Juice may immediately terminate this Agreement upon written notice in the event that Customer breaches Section 2.2 of this Agreement
12.3 Termination Upon Bankruptcy, Insolvency, Etc. Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other Party, which proceeding or petition has not been dismissed, vacated, or stayed within 30 days.
12.4 Termination of Statements of Work. Unless otherwise stated in the applicable Statement of Work, the term of each Statement of Work will last until performance of the Professional Services outlined therein is completed, except that either Party may, at its sole option and for its own convenience, terminate any or all Statements of Work in effect upon fifteen (15) days prior written notice. Upon such termination, the Parties will inform each other of the extent to which performance has been completed through such date, and collect and deliver all work in process. In the event of termination, the Parties agree to wind up their work in a commercially reasonable manner and to preserve and deliver items of value created prior to termination. Juice will be paid for all work performed and expenses incurred through the date of termination.
12.5 Effect of Termination. In the event of termination or expiration of this Agreement, (i) each Party will promptly, but within at least ten days, return all Confidential Information and materials of the other Party as described in Section 7; (ii) Customer will immediately discontinue all use of the Software Services and Documentation; and (iii) Customer will promptly pay to Juice all amounts due and outstanding.
12.6 Accrued Obligations. Termination of this Agreement and/or any applicable Order Form will not release the Parties from any liability which at the time of termination has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement and/or any applicable Order Form to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement as permitted in this Section 12 will incur no additional liability merely by virtue of such termination.
12.7 Cumulative Remedies. Termination of this Agreement and/or any applicable or Order Form, regardless of cause or nature, will be without prejudice to any other rights or remedies of the Parties and will be without liability for any loss or damage occasioned thereby.
13.1 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS OR THE UN CONVENTION ON THE INTERNATIONAL SALE OF GOODS. CUSTOMER AGREES THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN NEW YORK COUNTY, NEW YORK.
13.2 Nonsolicitation. Customer acknowledges and agrees that the employees and consultants of Juice who perform the Services are a valuable asset to Juice and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the completion of the Services, it will not offer employment or engagement (whether as an employee, independent contractor or consultant) to any Juice employee or consultant who performs any of the Services.
13.3 Force Majeure. Juice will be excused from performance of its obligations under this Agreement and any applicable Order Form if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Juice. Any delay resulting from any of such causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
13.4 Publicity. Customer grants to Juice a non-exclusive, revocable and royalty free license to use its corporate name and corporate logo in Juice’s website, customer lists, and marketing materials, subject to prior review and approval by Customer for any mention other than in a client listing, such approval which will not be unreasonably withheld. Customer agrees to make a reasonable effort to provide Juice with reasonable active support including but not limited to reference calls, press releases, press interviews, case studies, webinars and speaking engagements.
13.5 Notices. All notices and other communications hereunder will be given in writing and will be deemed to have been duly given and effective (i) upon receipt if delivered in person or by telecopy; (ii) upon delivery after deposit prepaid with a national overnight express delivery service; or (iii) three (3) days after deposit in the United States certified mail, postage prepaid, return receipt requested:
If given to Customer, to the address shown on the first page of this Agreement.
If to Juice:
209 10th Ave S, Suite 402
Nashville, TN 37203
Or to such other address as a Party may specify in writing in lieu of the above.
13.6 Survival of Obligations. The provisions of Sections 2.5 (“Retained Rights”), 4.6 (“Work Product”), 5 (“Fees and Payments”), 7 (“Confidentiality”), 9.2 (“No Other Warranties”), 10 (“Limitation of Liability”), 11 (“Indemnification”), 12.5 (“Effect of Termination”), 12.6 (“Accrued Obligations”), 12.7 (“Cumulative Remedies”) and 13 (“Miscellaneous”), as well as Customer’s obligations to pay any amounts due and outstanding hereunder, will survive termination or expiration of this Agreement.
13.7 Assignment. Customer will not assign its rights or delegate its obligations hereunder or under any Order Form without Juice’s prior written consent, and, absent such consent, any purported assignment or delegation by Customer will be null, void and of no effect, except that either party may assign to an affiliate or to a purchaser of substantially all of its assets. To the extent not prohibited hereby, this Agreement and any Order Form will be binding upon and inure to the benefit of Juice and Customer and their successors and permitted assigns.
13.8 Independent Contractors. Customer and Juice acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them.
13.9 Amendment. No amendment to this Agreement or any Order Form will be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
13.10 Waiver. The waiver by either Party of a breach of any provision of this Agreement or any Order Form will not operate or be construed as a waiver of the same or any other breach by that Party, whether prior or subsequent. Any waiver under this Agreement or any Order Form must be in writing and signed by an authorized representative of the waiving Party.
13.11 Severability. If any term or provision of this Agreement or any Order Form is determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, or enforceability of the remainder of this Agreement or Order Form will not thereby be affected, and this Agreement will be deemed amended to the extent necessary to delete such provision.
13.12 Causes of Action. No action arising from or related to this Agreement or any Order Form may be brought by either Party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due.
13.13 Entire Agreement. This Agreement, together with any Order Forms entered into in connection herewith, represents the entire agreement between the Parties hereto with respect to the subject matter addressed in this Agreement and such Order Forms, and is in lieu of and supersedes all prior agreements, representations, negotiations, or other understandings of the Parties with respect to such subject matter, whether written or oral.
13.14 Order of Precedence. Customer agrees that each Order Form is subject to the terms and conditions set forth in this Agreement, and any terms contained in such Order Form that conflict with the terms of this Agreement will be of no force or effect unless otherwise specified herein.
13.15 Government Rights. Each Service is a “commercial item” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government and users acquire the Juice software and services with only those rights set forth herein.
13.16 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
13.17 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
[End of Master Agreement]
Last Modified: 10/17/2019