Tenovos Master Services Agreement

TENOVOS MASTER SERVICES AGREEMENT

TENOVOS TERMS AND CONDITIONS

 

1. Definitions. 

1.1 “Confidential Information” means any information disclosed by either party to the other party pursuant to this Agreement that is (a) in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure, or (c) under the circumstances should in good faith be considered to be confidential. Confidential Information includes, without limitation, information related to research, product plans, products, developments, inventions, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing. Notwithstanding the foregoing, all technology or proprietary information underlying the Tenovos Data and Tenovos System shall be deemed Confidential Information of Tenovos without any need for designating the same as confidential or proprietary, and all Customer Data shall be deemed Confidential Information of Customer without any need for designating the same as confidential or proprietary.

1.2 “Customer Data” means any data or other content or information provided by or on behalf of Customer to Tenovos via the Tenovos System, including any Output.

1.3 “Developments” means the collective data, information, ideas, know-how, or techniques developed, derived, or conceived by Tenovos as a result of providing the Tenovos System to Customer, including without limitation any derivative works, improvements, analyses, enhancements and/or extensions made to Customer Data, the Tenovos Data or Tenovos System (or any portion thereof), as well as all suggestions, comments, or other feedback related to the Tenovos Data or Tenovos System (or any portion thereof) or any other Confidential Information of Tenovos, and all intellectual property rights therein and thereto throughout the world.

1.4 “Intellectual Property Rights” means all intellectual property and other proprietary rights of all kind under the laws of any jurisdiction worldwide, including rights of the following types: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (b) trade secret rights; (c) patent and industrial property rights; (d) other data and proprietary rights of every kind and nature; and (e) rights in or relating to registrations, renewals, extensions, combinations, continuations, continuations-in-part, substitutions, divisions, and reissues of, and applications for, any of the foregoing.

1.5 “Output” means the report(s) or other output generated directly from Customer Data via the Tenovos System, excluding the templates of such reports.

1.6 “Software” means the software, documentation and data related to the Tenovos System. 

1.7 “Tenovos Data” means all data generated by the Tenovos System, including without limitation, service and usage data. For clarity, Tenovos Data excludes Customer Data.

1.8 “Tenovos System” means the software-as-a-service specified in the applicable Order Form(s) (including any derivatives, improvements, enhancements, upgrades and/or extensions related thereto; all Software, Intellectual Property Rights and content included therein; and the structure, selection, coordination, expression, “look and feel”, and arrangement thereof) that is hosted on servers under the control or direction of Tenovos and provided for Customer to access and use via the internet. For clarity, the Tenovos System excludes Customer Data. Notwithstanding the foregoing, the Tenovos System includes Developments.

2.  Tenovos’ Responsibilities.

2.1 Access.  Subject to the terms and conditions of this Agreement, Tenovos will provide Customer with access to the Tenovos System in accordance with the service levels set forth on Exhibit A. Tenovos may in its sole discretion modify, enhance or otherwise change the Tenovos System. Tenovos may delegate the performance of certain portions of the Tenovos System to third parties, including Tenovos’ wholly owned subsidiaries and providers of cloud and data center services, provided that Tenovos will remain fully responsible for the acts and omissions of such third parties.

2.2 Passwords.  Tenovos reserves the right to periodically require passwords or other authentication credentials to be changed. Tenovos will provide prompt notice to Customer of any such required changes in passwords or other authentication credentials.

2.3 Professional Services.  Tenovos will provide the Professional Services, if any, set forth in an applicable Statement of Work.

3. Customer’s Responsibilities.

3.1 Equipment.  Customer will be responsible for obtaining and maintaining, at its expense, all the necessary computer hardware, software, services, internet connections and other items operated or provided by third parties (“Third Party Services”) as required for Customer’s access and use of the Tenovos System via the internet. Tenovos is not responsible for the operation of any Third Party Services or the availability or operation of the Tenovos System to the extent such availability and operation is dependent upon Third Party Services. Tenovos does not make any representations or warranties with respect to Third Party Services or any third party providers.   

3.2 Access.  Customer will cooperate with Tenovos in establishing a password or other procedures for verifying that only designated employees and contractors of Customer (“Authorized Users”) have access to the Tenovos System. Customer will be responsible for maintaining the security of Customer’s account, passwords and/or other authentication credentials (including, but not limited to, administrative and user passwords) and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent. Tenovos will not be liable for any loss in Customer Data caused by unauthorized use of Customer’s account.

3.3 Unauthorized Use.  Customer will use reasonable efforts to prevent any unauthorized use of the Tenovos System and Tenovos Data, and will (a) promptly notify Tenovos in writing of any unauthorized use that comes to Customer’s attention and (b) provide all reasonable cooperation to prevent and terminate such use. 

4. License Grants; Restrictions.

4.1 License to Customer.  Subject to Customer’s compliance with all the terms and conditions of this Agreement, Tenovos hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted under Section 18) license, without right of sublicense, during the Term, to access and use the Tenovos System and Tenovos Data for up to the maximum number of Authorized Users set forth on the applicable Order Form(s) and solely for its internal business purposes. 

4.2 Customer Data Usage.  Customer hereby grants Tenovos a license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data and Output for the sole purposes of: (a) providing the Tenovos System and related services to Customer as set forth in this Agreement; and (b) testing, improving and providing the Tenovos System to customers, which includes using Customer Data (including Output) to create Developments  (provided, however, that, in any use pursuant to this subsection (b), Tenovos will ensure that Customer Data are used in aggregated and anonymized form and in a manner that does not disclose Customer Data or other Confidential Information of Customer or identify Customer). Customer agrees that (i) the Tenovos System depends on the uploading or other provisioning of the Customer Data into the Tenovos System; and (ii) Tenovos will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data uploaded by Customer. 

4.3 License Restrictions.  Customer shall not directly or indirectly, and shall not permit any third party (including any Authorized User) to: (a) decompile, disassemble or reverse engineer the Tenovos Data or Tenovos System (or any portion thereof), or otherwise attempt to discover the source code, object code, logic, process or underlying methodology, structure, ideas, algorithms or related trade secrets of the Tenovos Data or Tenovos System (or any portion thereof); (b) use the Tenovos Data or Tenovos System (or any portion thereof) other than (i) in accordance with this Agreement and (ii) in compliance with all applicable laws and regulations; (c) copy, adapt, modify or create any derivative works of any part of Tenovos Data or Tenovos System (or any portion thereof); (d) market, license, sublicense, publish, distribute, transmit, reproduce, resell, assign, transfer, rent, lease, loan, or otherwise permit third parties to use the Tenovos Data or Tenovos System (or any portion thereof); (e) use the Tenovos Data or Tenovos System (or any portion thereof) for commercial time-sharing or service-bureau use or for any purpose other than its own internal use; (f) publish any results of benchmark tests run on the Tenovos System; (g) access the Tenovos Data or Tenovos System (or any portion thereof) in order to build a product or system using similar ideas, features, functions or graphics of the Tenovos System; (h) create internet “links” to or from the Tenovos System, or “frame” or “mirror” any content forming part of the Tenovos System, other than on Customer’s own intranets; (i) send or store through the Tenovos System material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (j) engage in any activity that interferes with or disrupt the integrity or performance of the Tenovos Data or the Tenovos System (or any portion thereof); (k) attempt to gain unauthorized access to the Tenovos Data or the Tenovos System or its related systems or networks; or (l) bypass any measures Tenovos may use to prevent or restrict access to the Tenovos Data or Tenovos System.  

4.4 Reservation of Rights.  Tenovos reserves all rights to the Tenovos Data or Tenovos System (or any portion thereof) not otherwise expressly granted in this Section 4.

4.5 Audit Rights.  During the Term, Tenovos will have the right, at its own expense, upon reasonable prior written notice of not less than 20 days, to inspect and audit Customers use of the Services for purposes of determining Customers compliance with the terms and conditions herein and with respect to the usage limitations as set forth in the Order Form.  Customer agrees to cooperate with Tenovos in the performance of any such audit, and shall provide to Tenovos such access to Customers relevant records, data, information, personnel – as Tenovos may reasonably request for such limited purposes.  Tenovos may conduct any inspection or audit once in any twelve (12) month period, except for any follow-up inspection or audit in the event that an inspection or audit revealed a material breach by Customer with the terms and conditions herein and in the Agreement.  All documents, materials and information learned or generated in connection with any inspection or audit shall be deemed to be Confidential Information of Customer.  All inspections and audits shall be subject to reasonable and generally applicable policies of Customer in existence at the location of such inspections and audits and shall not interfere with the operation or administration of Customers business, its operations or the use of the Services; provided such limitations do not materially interfere with such audit.

5. Payments and Taxes.

5.1 Fees.  Customer agrees to pay, and shall pay, the fees set forth in an applicable Order Form or Statement of Work (“Fees”) within thirty (30) days of Customer’s receipt of an invoice from Tenovos or as otherwise specified in an applicable Order Form. All payments shall be made in U.S. dollars in immediately available funds, and are non-refundable. 

5.2 Taxes.  Customer shall pay any sales, use, value-added, property, and other taxes, withholdings and similar charges based on or arising from this Agreement (other than taxes based on Tenovos’ net income). If Tenovos has the legal obligation to pay or collect taxes for which Customer is responsible under this Section 5.2, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Tenovos with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.3 Expenses.  Customer will reimburse Tenovos for reasonable pre-approved travel and living expenses incurred by Tenovos in performing Professional Services, if any, as set forth in the applicable Statement of Work, the general form of which is attached hereto as Exhibit B.

 

6. Warranties and Disclaimers.

6.1 Mutual.  Each party represents and warrants that: (a) such party is duly organized, validly existing, and in good standing under the laws of the state of its organization, and has the full power and authority to enter into and perform its obligations under this Agreement; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; and (c) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

6.2 Tenovos.  Tenovos further represents and warrants that: (a) the Tenovos System will perform substantially in accordance with its documentation; (b) Tenovos owns all right, title and interest in and to the Tenovos System and Tenovos Data, or that Tenovos has otherwise secured sufficient rights as may be necessary to permit the access and use thereof as contemplated by this Agreement; (c) Tenovos will not knowingly include in the Tenovos System or Tenovos Data provided to Customer hereunder any computer code or other computer instructions, devices or techniques, including without limitation those known as viruses, disabling devices, Trojan horses, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof; and (d) Tenovos shall perform the Professional Services, if any, and its other obligations under this Agreement in a professional and workmanlike manner.

6.3 Customer.  Customer, on behalf of itself and its Authorized Users, further represents and warrants that: (a) Customer’s use of the Tenovos System shall comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software; (b) Customer owns all right, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement; and (c) Customer will not knowingly include in the Customer Data any computer code or other computer instructions, devices or techniques, including without limitation those known as viruses, disabling devices, Trojan horses, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including the Tenovos System and Tenovos Data.

6.4 Disclaimers.  EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TENOVOS DATA OR TENOVOS SYSTEM (OR ANY PORTION THEREOF) AND ALL RELATED INFORMATION, TECHNOLOGY, AND SERVICES PROVIDED BY OR ON BEHALF OF TENOVOS ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND TENOVOS EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF ADVISED OF THE PURPOSE), ACCURACY, TITLE, AND/OR NON-INFRINGEMENT. IN ADDITION, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, TENOVOS DOES NOT WARRANT THAT ACCESS TO THE TENOVOS DATA OR TENOVOS SYSTEM (OR ANY PORTION THEREOF) WILL BE UNINTERRUPTED OR ERROR FREE, THAT TENOVOS DATA OR TENOVOS SYSTEM (OR ANY PORTION THEREOF) WILL MEET CUSTOMER’S NEEDS, OR THAT DATA WILL NOT BE LOST, OR THAT THE TENOVOS DATA OR TENOVOS SYSTEM (OR ANY PORTION THEREOF) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 

7. Term, Termination, and Survival.

7.1 Term.  This Agreement shall commence on the Effective Date, and shall continue for the Term specified on the Order Form.

7.2 Termination.  Either party may terminate this Agreement: (a) on thirty (30) days’ prior written notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s notice; or (b) immediately on written notice if: (i) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ninety (90) days; or (iii) the other party is adjudged bankrupt or insolvent. 

7.3 Suspension or Termination of Tenovos System.  At any time during the Term, Tenovos may, immediately upon notice to Customer, suspend access to the Tenovos System, at its discretion, if there is a threat to the technical security or technical integrity of the Tenovos System. If, during the course of the Term, Tenovos ceases to provide the Tenovos System, as Customer’s sole and exclusive recourse and remedy and Tenovos’ sole and exclusive liability, Tenovos will refund Customer a pro rata portion of Customer’s paid Fees for the then-remaining balance of the Term under each remaining Order Form.

7.4 Survival.  Upon termination or expiration of this Agreement, all licenses granted hereunder shall immediately terminate. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4.2(b), 4.3, 5, 6.4, 7.4 and 8 through 19 (inclusive). 

8. Limitation of Liability.  EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, CUSTOMER’S OBLIGATION TO PAY THE FEES UNDER SECTION 5, DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND/OR ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 11, (A) THE AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, STRICT LIABILITY, NEGLIGENCE AND/OR OTHER TORT, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO TENOVOS FOR ACCESS TO AND USE OF THE TENOVOS SYSTEM UNDER THE APPLICABLE ORDER FORM GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THAT THE CLAIM AROSE, AND (B) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION (I) DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, OR (II) DAMAGES OF ANY LOSS RELATED TO THE USE OF OR ARISING OUT OF CUSTOMER’S DECISIONS BASED UPON USE OF THE TENOVOS PLATFORM AND TENOVOS DATA, EVEN IF ADVISED, IN EACH CASE, OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY RELATED TO INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, OR THE PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS FOR THIS AGREEMENT AND SHALL SURVIVE REGARDLESS OF THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.

9. Ownership.

9.1 Tenovos’ Ownership Rights.  Subject only to the limited license expressly granted under this Agreement, as between Tenovos and Customer, Tenovos shall retain all right, title, and interest in and to the Tenovos Data or Tenovos System (and all portions thereof) (excluding the Customer Data), all Developments, and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Customer any right of ownership or interest in the Tenovos Data or Tenovos System (or any portion thereof) (excluding the Customer Data), or Developments, and all Intellectual Property Rights therein. To the extent Customer has or obtains any right, title, or interest in the Tenovos Data or Tenovos System (or any portion thereof) (excluding the Customer Data), or Developments, or any Intellectual Property Rights therein, Customer hereby assigns, and agrees to assign, without further consideration, to Tenovos all such right, title, and interest Customer may have or obtain.

9.2 Customer’s Ownership Rights.  Subject only to the limited license expressly granted hereunder, as between Customer and Tenovos, Customer shall retain all right, title and interest in and to the Customer Data (including Output), and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Tenovos any right of ownership or interest in the Customer Data or the Intellectual Property Rights therein.  

10. Indemnification.

10.1 Indemnity.  Subject to Section 10.2, each party shall indemnify, defend, and hold the other party and its affiliates, and its and their officers, members, directors, employees, agents, successors and assigns, harmless from and against all liabilities (including liabilities arising out of the application of the doctrine of strict liability), obligations, losses, damages, penalties, fines, claims, actions, suits, judgments, costs, expenses, and disbursements (including reasonable legal fees and expenses and reasonable costs of investigation) (“Losses”) arising from an unaffiliated third party claim: (a) with respect to Tenovos that the Tenovos System and/or Tenovos Data infringes, misappropriates or otherwise violates any third-party’s Intellectual Property Rights; or (b) with respect to Customer, (i) that the Customer Data infringes, misappropriates or otherwise violates any third-party’s Intellectual Property Rights, or (ii) the Customer Indemnity Obligations. 

10.2 Exclusions.  Tenovos’ indemnity obligations do not apply with respect to portions or components of the Tenovos System (a) where Customer’s use of the Tenovos System is not strictly in accordance with this Agreement and the applicable documentation or applicable law; (b) that Customer combines with third-party software, hardware, or data other than that approved by Tenovos, where the alleged infringement relates to such combination; (c) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (d) where the Customer Data infringes, misappropriates or otherwise violates any third-party’s Intellectual Property Rights, privacy, or other proprietary rights (collectively, the “Customer Indemnity Obligations”). 

10.3 Process.  The indemnified party shall promptly notify the indemnifying party in writing of any claim for which it seeks indemnification hereunder; provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (a) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with the progress of such litigation or settlement and (b) the indemnifying party shall not have any right, without the indemnified party’s written consent (which consent shall not be unreasonably withheld), to settle any such claim in a manner that does not unconditionally release the indemnified party. At the indemnifying party’s request, the indemnified party will provide reasonable cooperation with respect to any defense or settlement.

10.4 Remedies.  In the event any portion of the Tenovos System or Tenovos Data is held or believed by Tenovos, or any portion of the Customer Data is held or believed by Customer, to infringe, misappropriate or otherwise violate the Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the Tenovos System and Tenovos Data are used or accessed, or in any place where the Customer Data is used or accessed, then, in addition to any other rights in this Section 10, Tenovos (where the Infringing Materials are the Tenovos System or Tenovos Data) or Customer (where the Infringing Materials are the Customer Data) may, at its sole expense and at its option: (a) obtain from such third party the right for the other party to continue to use the Infringing Materials; (b) modify the Infringing Materials to avoid and eliminate such infringement, misappropriation or other violation; (c) remove and disable the Infringing Materials; or (d) if none of the foregoing remedies is commercially feasible, terminate this Agreement.

10.5 Sole Remedy for Intellectual Property Violations.  This Section 10 contains each party’s sole and exclusive remedy, and each party’s entire liability, with respect to infringement, misappropriation, or other violations of third party Intellectual Property Rights relating to the Tenovos System, Tenovos Data, Customer Data and the subject matter of this Agreement.

11. Confidentiality.  Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party, subject to Section 4.2(b); provided however, that each receiving party may retain copies of the disclosing party’s Confidential Information for routine backup and archival purposes. Notwithstanding the foregoing, the obligations set forth in this Section 11 shall not apply with respect to any information to the extent that it is: (a) already in the possession of the receiving party without restriction prior to the first disclosure hereunder as shown by records or files; (b) is already or becomes generally available to the public after the time of disclosure other than as a result of any improper action by the receiving party; (c) was rightfully disclosed to it by a third party without restriction; or (d) is independently developed by either party without use of the Confidential Information from the other party. The receiving party may make disclosures required by law or court order provided that, if practicable, the receiving party provides adequate notice and assistance to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure.

12. Customer Data Security.

12.1 Protection of Customer Data.  Tenovos will implement and maintain industry standard information security policies and processes (including reasonable technical, administrative and physical safeguards and isolation of identifiable Customer Data from other identifiable data) that are designed to prevent unauthorized access to or use or disclosure of any Customer Data.

12.2 Deletion and Return of Customer Data.  Upon Customer’s request at any time, unless prohibited by applicable law, rule or regulation, Tenovos will securely delete any or all Customer Data in its possession or control, subject to Section 4.2(b). 

13. Notices.  All notices and other communications required or permitted under this Agreement shall be in writing, addressed to the applicable party at its address set forth in this Agreement, and shall be deemed effectively delivered only: (a) upon personal delivery; (b) upon delivery by a courier service as confirmed by written delivery confirmation; (c) upon delivery by facsimile or email as confirmed by transmission receipt; or (d) three (3) business days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid. Either party may change its address for notice by giving notice to the other party in accordance with this Section 13. 

14. Governing Law, Jurisdiction, Venue, and Dispute Resolution.  This Agreement shall be construed in accordance with applicable U.S. federal law and the laws of the State of New York, USA without regard to conflict of laws principles. In the event a dispute arises out of or in connection with this Agreement, the parties will attempt to resolve the dispute through good faith consultation. If the dispute is not resolved within a reasonable period, then any or all outstanding issues shall be finally settled by arbitration in New York County, New York, USA in accordance with the Arbitration Rules and Procedures of JAMS/Endispute, LLC (“JAMS”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.  Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief.  For all purposes of this Section 14, unless otherwise elected by Tenovos in writing for a particular instance, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state or federal courts of New York County, New York, and both parties consent to the jurisdiction of such courts.

15. Force Majeure.  Other than for payment of money, Tenovos shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, or any other cause beyond its reasonable control. Such party shall use commercially reasonable efforts to cure any such failure or delay in performance arising from such a condition, and shall timely advise the other party of such efforts. If such delay continues for more than sixty (60) days, the performing party may, upon not less than ten (10) days’ prior written notice to the non-performing party, terminate this Agreement.

16. Relationship of the Parties.  The relationship between the parties shall only be that of independent contractors. Neither party is an agent, representative, partner, employer, or employee of the other party, and neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

17. Publicity.  Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship without obtaining the express prior written consent of the other party. Notwithstanding anything to the contrary in this Agreement, Tenovos may reference Customer as a Tenovos System user in its marketing and promotional materials, including but not limited to the Tenovos website, and use Customer’s name and logo in such materials. Customer agrees to participate in press announcements, case studies, trade shows, white papers, or other forms reasonably requested by Tenovos. Customer also agrees to provide or serve as a reference upon Tenovos’ reasonable request.

18. Assignment.  A party shall not assign nor transfer any obligations or benefit under this Agreement without the written consent of the other party, provided that, without the consent, either party may assign this Agreement freely without restriction, in whole or in part, to an affiliated entity or to a successor to all or substantially all of its business or assets (whether by operation of law, merger, acquisition, sale, consolidation or otherwise) to which this Agreement relates. Any purported transfer or assignment in violation of this Section 18 is void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns.

19. General.  This Agreement, together with its Order Form(s), Statement(s) of Work and exhibit(s), is the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, and all prior and contemporary proposals and discussions relating to the subject matter of this Agreement, and controls over the preprinted terms of any purchase order or similar document. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or different kind. All notices, modifications and waivers under this Agreement must be in a writing executed by a duly authorized representative of each of the parties. If any provision of this Agreement is determined to be unenforceable, that provision will be replaced with the valid one that most closely achieves the parties’ intent and the remainder of this Agreement will remain enforceable. This Agreement may be executed in counterparts, electronically or by facsimile signatures, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. In the event of any conflict between the provisions in the Terms and Conditions and an Order Form or Statement of Work, the terms of the Terms and Conditions shall prevail to the extent of such conflict, except and to the extent the Order Form or Statement of Work expressly identifies by Section any specific provision of the Terms and Conditions that the parties intend to override. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

EXHIBIT A

SERVICE LEVEL AGREEMENT

1. Definitions.

1.1 “Agreement” means the Tenovos Order Form and Terms and Conditions to which this Service Level Agreement (“SLA”) is attached.

1.2 “Business Hours” means 8:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday, excluding U.S. federal or state holidays.

1.3 “Critical Defect” means any demonstrable Defect in the Tenovos System that: (a) prevents the Tenovos System from being accessed by the End User; (b) causes or is likely to cause data to be lost or destroyed; or (c) causes the Tenovos System to have a material loss of overall utility of intended function without a workaround.

1.4 “Defect” means a failure of the Tenovos System to perform substantially in accordance with its documentation.

1.5 “High Defect” means any demonstrable Defect in the Tenovos System that causes the Tenovos System to have a significant loss of utility of intended function although it still operates or for which there is a workaround.

1.6 “Low Defect” means any demonstrable Defect that: (a) causes a function to not execute as documented without a significant loss of utility of intended functionality; or (b) disables one or more nonessential functions.

1.7 “Maintenance” means scheduled Unavailability of the Tenovos System, as announced by Tenovos no less than seventy-two (72) hours prior to the Tenovos System becoming Unavailable. Maintenance will not last longer than four (4) hours each month and will only take place between the hours of 12:00 a.m. and 6:00 a.m. Eastern Time on Saturdays and Sundays.

1.8 “Medium Defect” means any demonstrable Defect in the Tenovos System that causes the Tenovos System to operate improperly, but which error does not rise to the level of a High Defect.

1.9 “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Tenovos System is Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Tenovos SLA Exclusion, set forth in Section 8 of this SLA.

1.10 “Service Credit” means a credit denominated in U.S. dollars, calculated as set forth in Section 5.1 of this SLA, that Tenovos may credit back to an eligible account. 

1.11 “Unavailable” and “Unavailability” means that the Tenovos System has no external connectivity during a thirty (30) consecutive minute period and Customer attempts but is unable to access data by means of the Tenovos System during that same time period. Under no circumstances will the Tenovos System be considered Unavailable if test packets directed by Tenovos or its designee to the primary servers hosting the Tenovos System indicate that it is functional as reflected in Tenovos server logs.

1.12 “Authorized Users” means any users assigned a login and password to the Tenovos System by the customers administrative user.

1.13 “Zendesk” means a 3rd party customer service ticketing platform used by Tenovos to track and respond to customer support requests.

2. Availability Commitment.  Tenovos will make the Tenovos System available with a Monthly Uptime Percentage of at least 99.9% during any monthly billing cycle (the “Availability Commitment”). In the event Tenovos does not meet the Availability Commitment, Customer is eligible to receive a Service Credit, subject to Tenovos SLA Exclusions.  A Monthly Uptime Percentage of 99.9% means that Customer experiences no more than 43 minutes per month of Unavailability.

3. Service Commitment.

3.1 Configuration of Tenovos System.  Tenovos will provide Customer with Professional Services, if any, to configure the Tenovos System as set forth in the applicable Statement of Work. 

3.2 Releases.  Tenovos will only deploy changes that have been through code review and testing to Customer’s deployment. The changes are first deployed in a release to a staging environment, where manual quality assurance testing is performed. If this passes, the release is then pushed to Customer’s deployment. Minor releases (including bug fixes and small product changes) will be released as determined in Tenovos’ sole discretion. For major product releases (including new features), Tenovos first enables the features for select users that Customer designates. These users then test and approve the feature before it is enabled for all users on Customer’s deployment. If a major or minor release requires Maintenance that Tenovos expects to result in Unavailability, Tenovos will perform such Maintenance as specified in Section 1 of this SLA.

3.3 Training.  Tenovos will provide Customer on-site training as set forth in the applicable Statement of Work.

4. Technical Support. 

4.1 Tenovos will provide ticketing support for the Tenovos System during Business Hours, to the following two (2) named Customer contacts (the “Technical Support Contacts”). The Technical Support Contacts may be changed upon mutual written agreement of the parties. 

a) [______________]

b) [______________]

4.2 Tenovos will also provide technical support for the Tenovos System to all Authorized Users via Zendesk. Zendesk is staffed during Business Hours. For all support inquiries excluding Defects, Tenovos will use commercially reasonable efforts to respond within 1 business day.

4.3 Tenovos shall use commercially reasonable efforts to correct all Defects and install enhancements as reasonably necessary to operate the Tenovos System. Defects will be reported by Customer and categorized by Tenovos as Critical Defects, High Defects, Medium Defects or Low Defects. Tenovos will use commercially reasonable efforts to adhere to the following response and restoration time frames:

Defect Type	Response	Interim Resolution	Restore (Permanent Solution)
Critical	30-minute response time during Business Hours	8 hours	3 business days
High	3 hours	3 business days	1 week
Medium	1 business day	7 business days	2 weeks
Low	3 business days	30 business days	Next application release

 

5. Service Credits.

5.1 Service Credits are calculated as a percentage of the total charges paid by Customer (excluding any payments under the Statement of Work) for the monthly billing cycle in which the Unavailability occurred. If Tenovos confirms that the Monthly Uptime Percentage was below 99.9% for the monthly billing cycle, Customer is eligible for a Service Credit equal to 10% of the pro-rata fees for such month.

5.2 Tenovos will apply any Service Credits only against future payments for the Tenovos System otherwise due from Customer. Service Credits will not entitle Customer to any refund or other payment from Tenovos. Service Credits may not be transferred or applied to any other Sites.

6. Sole Remedy.

6.1 Unless otherwise expressly provided in the Agreement or this SLA, and subject to Section 7.2 of this SLA, Customer’s sole and exclusive remedy for any unavailability, non-performance, Defects, or other failure by Tenovos to provide the Tenovos System is a receipt of a Service Credit (if eligible) in accordance with this SLA.

7. Credit Request and Payment Procedures.

7.1 To receive a Service Credit, Customer must submit a claim by emailing support@tenovos.com.

7.2 To be eligible, the credit request must be received by Tenovos by the end of the second billing cycle after which the incident occurred and must include:

a) The words “SLA Credit Request” in the subject line

b) The dates and times of each Unavailability incident that Customer is claiming

c) Any logs that document the errors and corroborate the claimed outage

7.3 If the Monthly Uptime Percentage of such request is confirmed by Tenovos and is less than the Availability Commitment, then Tenovos will issue the Service Credit to Customer within one billing cycle following the month in which the request is confirmed. Customer’s failure to provide the request and other information as required in this Section 7 will disqualify Customer from receiving a Service Credit.

Tenovos SLA Exclusions.

8.1 The Availability Commitment does not apply to any Unavailability or inaccessibility of the Tenovos System, or any other Tenovos System performance issues (“Tenovos SLA Exclusions”):

a) that result from Maintenance of which Tenovos has provided a minimum seventy-two (72) hours’ notice to the designated administrative contact for Customer account;

b) caused by factors outside of Tenovos’ reasonable control including, but not limited to, a force majeure event, internet access failure, or problems beyond the demarcation point of the Tenovos network;

c) that result from any actions or inactions of Customer or any third party not authorized by Tenovos;

d) that result from the equipment, software, or other technology of Customer or any Third Party Services (other than third party equipment within Tenovos’ direct control); or

e) arising from the suspension or termination of Customer’s right to use the Tenovos System in accordance with the Agreement.

8.2 If the Monthly Uptime Percentage is affected by any Tenovos SLA Exclusions, then Tenovos may or may not issue a Service Credit considering such factors in its sole discretion.