Master Service Agreement

MASTER SERVICE AGREEMENT

By executing an Order Form or SOW that references or incorporates this Master Service Agreement (the “MSA”) Customer accepts and agrees to be bound by the terms of this MSA as of the effective date of the initial Order Form or SOW entered between Kanarys and Customer (“Effective Date”) (each of Kanarys and Customer, a “Party” and collectively, the “Parties“). Should a conflict or inconsistency arise between an Order Form or SOW and this MSA, the provisions of the Order Form or SOW shall control but only with respect to the Services or Order covered under such Order Form or SOW. In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Parties agree as follows:

 

DEFINITIONS

  1. “Agreement” means the MSA together with all SOWs and Order Forms entered into by Parties under the MSA.
  2. “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in Dallas, Texas are authorized or required by law to close.
  3. “Customer” means the legal entity that executes an Order Form or SOW with Kanarys.
  4. “Defaulting Party” has the meaning set forth in Section 5.2.
  5. “DEIB” means diversity, equity, inclusion and belonging.
  6. “Kanarys” means Kanarys, Inc., a Delaware corporation.
  7. “Kanarys Platform” means the data and analytics platform and other sites, mobile applications, software, native applications, social media sites which provide services to the Customer related to the collection, sharing, and analyzing of DEIB information.
  8. “Laws” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
  9. “Order Form” means Kanarys’ standard form of order form, as executed by both Parties, that incorporates this Agreement and sets forth the SaaS Services to be ordered, the applicable restrictions, if any and/or any other relevant information relating to the SaaS Services; additional terms for SaaS Services including without limitation, the term and fees; if applicable the schedule of payments for the performance of any services; and any unique additional terms.
  10. “Party” or “Parties” has the meaning set forth in the Preamble.
  11. “Professional Services” has the meaning set forth in Section 3.
  12. “SaaS Services” means the software-as-a-service applications hosted by and made available by Kanarys as set forth in Section 2.
  13. “Services” shall mean any SaaS Services or Professional Services pursuant to any Order Form executed in connection with this Agreement.

 

SAAS SERVICES

  1. Orders. The SaaS Services to be provided by Kanarys under this Agreement will be set forth in one (1) or more Statement(s) of Work executed by the Parties. Each Order Form shall include a description of the applicable SaaS Services, the costs associated with such SaaS Services, the schedule of payments for the performance of such SaaS Services, and any unique additional terms. Each Order Form entered into by Parties is hereby incorporated into this Agreement by reference.
  2. Provision of Access. Subject to the terms and conditions contained in this Agreement, Kanarys hereby grants to Customer a limited non-exclusive, non-transferable, non-sublicensable, revokable right to access the features and functions of any SaaS Services ordered pursuant to an Order Form during the Term, in accordance with the scope of intended use and any restrictions set forth on the applicable Order Form (“Permitted Uses”). On or as soon as reasonably practicable after the date the applicable Order Form is executed, Kanarys shall provide the Customer with the necessary onboarding and implementation to allow Customer to access the applicable SaaS Services.
  3. Responsibility for Application and Content Hosting. Kanarys shall, at its own expense, provide for the hosting of the SaaS Services, provided that nothing herein shall be construed to require Kanarys to provide for, or bear any responsibility with respect to, the development, or with respect to any telecommunications or computer network hardware required by Customer to provide access from the internet to the SaaS Services.

 

PROFESSIONAL SERVICES

  1. Issuance of Statements of Work. Customer may request that Kanarys perform professional or other recurring services by delivering a written request describing the proposed Professional Services. Kanarys shall prepare an Order Form based on such requested Professional Services, and once executed, such Order Form will be incorporated into this Agreement. Such Order Form shall describe the Professional Services, fees, costs and expenses payable by Customer to Kanarys in connection with the performance of such services.
  2. Change Request. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Order Form by written change request to Kanarys specifying the desired modifications. Kanarys shall, 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 Order Form. Modifications to any Order Form shall become effective only when a written change request is executed by authorized representatives of both Parties.
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PROPRIETARY RIGHTS

  1. Ownership of Kanarys Platform. Customer acknowledges that Kanarys owns all rights, titles, and interests, including all patents, copyrights, trade secrets, trademarks, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to the Kanarys Platform (including all components thereof), and  Customer shall not engage in any act or omission that would impair Kanarys’ Intellectual Property Rights in the Kanarys Platform and any other materials, information, processes or subject matter proprietary to Kanarys. Customer further acknowledges that Kanarys retains the right to use the foregoing for any purpose in Kanarys’ sole discretion. Customer shall not, directly or indirectly, internally or through a third party, decompile, reverse engineer, decrypt, extract or disassemble, or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of any software, scoring, benchmarks or other technical components of the Kanarys Platform.
  2. Feedback. If Customer or any of its employees or contractors makes any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) about Kanarys Platform, Kanarys is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Kanarys on Kanarys’ behalf, and on behalf of its employees, contractors or agents, all right, title, and interest in, and Kanarys is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Kanarys is not required to use any Feedback.
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REPRESENTATIONS AND WARRANTIES

  1. Each Party represents and warrants to the other that: (i) the execution and performance of this Agreement does not and shall 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; (ii) it will comply and will require its representatives to comply, with all applicable federal, state, and local data protection laws and regulations in the maintenance, disclosure, and use of all Personal Information (as defined under the applicable state law, or Personal Data as defined under the General Data Protection Regulation 2016/679 (GDPR) where applicable) contained in any Confidential Information that is disclosed to the Receiving Party or its representatives hereunder; and (iii) it has implemented and will continue to maintain no less than commercially reasonable information security protocols to secure and protect the confidentiality of the Confidential Information in the Recipient’s or its Representatives’ possession or control.
  2. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, THE SERVICES, INCLUDING ANY SAAS SERVICES, PROVIDED BY KANARYS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND KANARYS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY ADDITIONAL OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, NON-INTERFERENCE, VALUE OR ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY KANARYS ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. KANARYS DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS, OR TECHNOLOGY PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. KANARYS MAKES NO GUARANTEE, WARRANTY, REPRESENTATION OR CONDITION REGARDING ANY SERVICES. CUSTOMER ACKNOWLEDGES THAT KANARYS’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER ONLY. KANARYS’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KANARYS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
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TERM; TERMINATION

  1. This Agreement shall be effective as of the Effective Date and shall have an initial term of one (1) year from the date hereof (the “Term”).  This Agreement shall renew at the end of the Initial Term and continue for successive annual periods until terminated by either Party upon not less than sixty (60) days’ written notice prior to the expiration of the Initial Term or the then current renewal term.
  2. At any time, either Party may terminate this Agreement for a material breach by the other Party (the “Defaulting Party”), effective upon written notice to the Defaulting Party, if the Defaulting Party:
    1. materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
    2. (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) Business Days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  3.  Termination Charge. In addition to all its other obligations under this Agreement, in the event the Agreement or Order Form(s) is terminated by Kanarys due to Customer’s breach, or the Customer seeks to terminate early for any reason other than for cause under 6.2 or 6.3, Customer shall owe Kanarys a termination charge (“Termination Charge”) of an amount equal to, as of the effective date of termination, one hundred percent (100%) of all remaining fees due that would have been incurred and payable to Kanarys by Customer for the remainder of the Term for each such Order Form, as applicable.
  4. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, LOSS OF DATA OR GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH PARTY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY THE CUSTOMER TO KANARYS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING A CLAIM FOR DAMAGES.

 

FEES AND EXPENSES

  1. In consideration of the provision of the Services by Kanarys and the rights granted to the Customer under this Agreement, the Customer shall pay the fees under this Agreement as set forth in each applicable Order Form. Kanarys shall issue an invoice to the Customer as set forth in the Order Form.  All fees due and payable as set forth in any invoice shall be paid within thirty (30) days of the invoice date.
  2. Disputed Charges. Customer must notify Kanarys in writing of any dispute or disagreement with invoiced charges within fifteen (15) days of the date of invoice. Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of such time period. 
  3. Late Payments; Interest. Kanarys reserves the right to charge, and Customer agrees to pay, a late charge equal to the lesser of one point five percent (1.5%) per month or the maximum permitted by law, on any amount that is not the subject of a good faith dispute and remains unpaid on the due date. All payments to be made under this Agreement shall be made in U.S. Dollars. 
  4. Suspension of Service. If Customer fails to pay undisputed amounts in accordance this Agreement or breaches any provision of Section 7, Kanarys shall have the right, in addition to any of its other rights or remedies, to immediately suspend the Services to Customer, without liability to Customer until such amounts are paid in full or such breach is cured.
  5. Deduction Amounts. Customer acknowledges and agrees that it shall be solely responsible for all refunds, chargebacks, third-party chargeback fees, and Kanarys fees related to the foregoing (“Deduction Amounts”) related to payments processed for or on behalf of Customer, and that in no event shall Kanarys be responsible in any way for such Deduction Amounts.
  6. Taxes. All prices and fees provided for under this Agreement are exclusive of taxes. Customer shall be solely responsible for the timely and full payment of all taxes arising from the payment of fees under this Agreement. Where Kanarys is remitting tax payments to the governmental taxing authority, Kanarys’ invoices to the Customer will include the applicable taxes. Where a governmental taxing authority imposes taxes, and such tax payments were not previously collected by Kanarys from the Customer for any reason, Customer shall either: (a) pay Kanarys the taxes due within thirty (30) days in order for Kanarys to remit to the governmental taxing authority; or (b) remit the tax payments directly to the governmental taxing authority and provide Kanarys with the official receipts, or provide such other evidence as Kanarys may reasonably request, to establish that the taxes have been paid.
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PUBLICITY

  1. Publicity. Upon the execution of the Agreement and except in the event of a termination of the Agreement pursuant to Section 6.2 above, Customer will allow Kanarys, at Kanarys’ discretion, to list the Customer’s name and logo on the Kanarys Platform as a user of Kanarys and its Services. Within 30 days of the Effective Date, Customer will allow Kanarys to publish a press release announcing the Customer’s selection of Kanarys and its Services. The press release will not be published without the prior written consent of the Customer, which shall not be unreasonably withheld.

 

INDEMNIFICATION

  1. Indemnification by Kanarys. Kanarys shall defend, indemnify, and hold Customer harmless from and against all losses, costs and expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from or arising out of a third-party claim that the Services expressly authorized under this Agreement infringes or misappropriates, as applicable, any U.S. patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States. In the event that Customer elects to require Kanarys to provide defense for such claim(s), Customer agrees to give Kanarys (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Kanarys may reasonably request, at Kanarys’ expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Kanarys shall not settle any third-party claim against Customer unless such settlement completely and forever releases Customer with respect thereto or unless Customer provides its prior written consent to such settlement. In any action for which Kanarys provides defense on behalf of Customer, Customer may participate in such defense at its own expense by counsel of its choice. Notwithstanding the foregoing, Kanarys shall have no obligation or liability to the extent that the alleged infringement arises from (i) the Customer Data; (ii) modifications to the Services, which modifications are made by Customer or at Customer’s direction without Kanarys’ consent; (iii) Customer’s failure to use updates to the Services where such updates were previously provided by Kanarys and Customer was directed by Kanarys to apply such updates; (v) Customer’s breach of the Stripe Terms; or (v) use of the Services except in accordance with any applicable user documentation or specifications (circumstances under the foregoing clauses (i) through (v), collectively, “Customer Indemnity Responsibilities”).
  2. Upon the occurrence of a claim for which indemnity is or may be due under this Section 9, or in the event that Kanarys believes in good faith that such a claim is likely, Kanarys may, at its option, and upon reasonable advance, written notice to Customer: (i) appropriately modify the Kanarys Services so that it becomes non-infringing, or substitute functionally equivalent software or services; or (ii) obtain a license to the applicable third-party intellectual property rights. The obligations set forth in this Section 11.1 shall constitute Kanarys’ entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.
  3. Indemnification by Customer. Customer shall indemnify, hold harmless, and, at Kanarys’ option, defend Kanarys 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 (i) Customer Indemnity Responsibilities, (ii) Customer’s breach or alleged breach of any of its representations or warranties under this Agreement or (iii) any third party claim that any Customer Data violates, infringes or misappropriates such third party’s intellectual property rights or other legal rights. In the event that Kanarys elects to require Customer to provide defense for such claim, Kanarys 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 shall not settle any third-party claim against Kanarys unless such settlement completely and forever releases Kanarys with respect thereto or unless Kanarys provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Kanarys, Kanarys may participate in such defense at its own expense by counsel of its choice.
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MISCELLANEOUS

  1. 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.
  2. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses indicated below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 9.2).
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If to Kanarys:

750 N Saint Paul St Ste 250 PMB 78007
Dallas, Texas 75201-3206 US

Attention:        General Counsel

Email:             contracts@kanarys.com

If to the Customer:

To the address set forth in the applicable Order Form.

    1. Neither Party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other Party.
    2. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by the Parties.
    3. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city and County of Dallas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
    4. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
    5. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
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