Fera Zero Master Agreement
THIS MASTER AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF THE PRODUCTS AND SERVICES PROVIDED BY FERA ZERO LLC., A CALIFORNIA LIMITED LIABILITY COMPANY WITH A PRINCIPAL BUSINESS LOCATION AT LOS ANGELES (“FERA ZERO”). CUSTOMER ACCEPTS THIS AGREEMENT BY (1) EXECUTING AN SOW THAT REFERENCES THIS AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, OR (2) ACCESSING THE FERA ZERO PLATFORM TO USE THE PRODUCTS AND SERVICES (“EFFECTIVE DATE”). IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A FERA ZERO OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS AND SERVICES.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
DEFINITIONS. Capitalized terms not otherwise defined in the first instance of their use shall have the meanings ascribed to them in this Section 1.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the applicable entity. For purposes of this definition, “control” means, direct or indirect, ownership or control of more than fifty percent (50%) of the applicable entity.
“Customer Data” means all data or information submitted, posted or created by or on behalf of Customer in the course of using the Products and/or Services.
“Data Protection Laws” mean all applicable privacy, data protection or similar laws and regulations anywhere in the world, as the same may be amended from time to time, including to the extent applicable to this Agreement: (i) the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., as amended (“CCPA”); and (ii) the EU General Data Protection Regulation ( “GDPR” ) (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016), and any applicable implementing legislation or any amendment thereto.
“Fera Zero Platform” means the website located at https://www.ferazero.com/ (or any successor or affiliated website Fera Zero designates), and any mobile applications and other online platforms operated by Fera Zero and through which the Products and Services may be made available to Customer.
“Generic Data” means Customer Data that is aggregated, de-identified and/or compiled on a generic basis.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Personal Data” means “personal data”, “personal information” or other similar terms as defined under Data Protection Laws which is processed from time to time by the parties in connection with this Agreement or the Terms of Use. The terms “controller”, “processor”, “data subject”, “business”, “owner”, “service provider” and “processing” (and related expressions) shall have the meanings given to them in the Data Protection Laws.
“Products” means the online, web-based application provided by Fera Zero via the Fera Zero Platform or other designated application service providers as described on the Fera Zero Platform and licensed in accordance with the applicable SOW.
“Services” means services provided by Fera Zero or Fera Zero’s third party affiliates as described on the Fera Zero Platform and in accordance with the applicable SOW.
“Statement of Work” or “SOW” means an ordering document for Customer’s purchases of Products and/or Services from Fera Zero that is executed by the parties and references this Agreement.
“Terms of Use” means the Fera Zero terms and conditions, as amended from time to time, regulating the use of the Fera Zero Platform by each person accessing the same, currently available at www.ferazero.com/terms-of-use. If the Terms of Use conflict with the terms of this Agreement, this Agreement will prevail to the extent of the conflict.
“Users” means individuals who are authorized or solicited by Customer to use the Products and Services pursuant to this Agreement, and who have been supplied user identifications and passwords by Customer or by Fera Zero. Users may include but are not limited to clients, employees, consultants, contractors and agents of Customer and its Affiliates.
PRODUCTS AND SERVICES.
Statements of Work. The parties shall execute an SOW for any Products to be licensed and/or Services to be purchased by Customer from Fera Zero pursuant to this Agreement.
Access and License Grants. Subject to the terms and conditions of this Agreement and the Terms of Use, Fera Zero grants to Customer a limited, non-exclusive, (except as expressly set forth in this Section 2.2) non-sublicensable, non-transferable license to use the Products and Services, and to access the Fera Zero Platform through a standard web browser and internet connection, in each case solely (i) during the applicable subscription term, (ii) for internal business purposes, and (iii) in accordance with applicable Fera Zero’s documentation and guidelines posted on the Fera Zero Platform or otherwise made available to Customer. Notwithstanding the foregoing, Customer shall have the right to provide user-level access to the Fera Zero Platform to the Users during the subscription term in accordance with the terms of this Agreement the applicable SOW.
Infrastructure Requirements. Customer agrees that it shall be responsible for the cost of and the providing and maintaining of all necessary telecommunications equipment, including, but not limited to, the following: computers, internet connectivity, software and other materials at Customer’s locations necessary for accessing the Fera Zero Platform and using the Products and Services.
Changes of Services. Customer understands that any changes to previously approved work requested by Customer may require an increase or change in the work and/or resources provided by Fera Zero that deviate from the applicable SOW (each, a “Change of Services”). Any Change of Services shall be effective only when approved in writing by both parties (e-mail is sufficient). Each approved Change of Services is hereby incorporated herein by this reference. For purposes of this Section 2.4., "changes to previously approved work" means new information, instructions, and/or unanticipated events that materially alter the scope or nature of the project, and/or substantially increase the estimated hours, effort, or expenses required for its completion.
Security Procedure. Access to the Fera Zero Platform as allowed under this Agreement will be granted by using a Fera Zero approved access/authentication method (“Security Procedure”). Customer shall be responsible for maintaining the confidentiality and security of the Security Procedure, and shall permit only its employees or contracted staff necessary for the purposes stated in this Agreement or the Terms of Use access to the Security Procedures. In addition to the rights set forth in the Agreement, Fera Zero reserves the right to (x) access, review, and copy or delete any content or files added to the Fera Zero Platform by Customer or any User for any purpose, and to (y) disconnect Customer or any User from the Fera Zero Platform at any time, to the extent Fera Zero reasonably determines such action is necessary or appropriate to safeguard the Fera Zero Platform. In addition, Fera Zero reserves the right to change, modify, add to, discontinue, or retire any aspect or feature of the Products and Services and the Fera Zero Platform at any time and for any reason.
PERMITTED USE.
Fera Zero’s Responsibilities. Fera Zero shall provide the Services and make the Products available to Customer pursuant to the terms of the applicable SOW and this Agreement; provided, however, that Customer acknowledges that the Fera Zero Platform may be unavailable from time to time for maintenance and such unavailability will not be considered a breach of this Agreement. Fera Zero will use reasonable efforts to give written notice (including by email) to Customer prior to any scheduled service disruption. Fera Zero may integrate the Fera Zero Platform with third party applications; provided, Fera Zero does not warrant or support third party products or services, except as expressly specified in a SOW, and Fera Zero disclaims any responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access by third party application providers.
Customer’s Responsibilities. Customer shall be responsible for all activities that occur in User accounts and for Users' compliance with this Agreement. In addition, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, notify Fera Zero promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Products. Fera Zero is not responsible for determining the requirements of laws applicable to Customer’s business, including those relating to the Products that Customer acquires under this Agreement, or Fera Zero’s provision of or Customer’s receipt of a particular Product or Service under this Agreement meets the requirements of such laws. Customer shall also provide all assistance reasonably requested by Fera Zero and shall permit Fera Zero to access and use its systems, facilities, and materials (including the Customer Data) for purposes of performing Services and/or providing the Products hereunder.
Fera Zero Guidelines. Customer shall use the Products solely for Customer’s internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Products available to any third party, other than to Users pursuant to Section 2.2; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or the Terms of Use; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (vi) attempt to gain unauthorized access to the Products or Fera Zero’s related systems or networks; (vii) access the Products if Customer is a direct competitor of Fera Zero, except with Fera Zero’s prior written consent; or (viii) access the Products for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Third-Parties. Customer shall not be permitted to allow the use or access of the Products by any third party (other than Customer’s personnel or Users as contemplated by this Agreement) without the prior written approval of Fera Zero.
Security. Each party agrees (i) it shall maintain information security measures designed to protect Customer Data from unauthorized disclosure or use, and (ii) it shall, upon request, provide the other party with information regarding such security measures upon the reasonable request of such party and promptly provide the requesting party with information regarding any failure of such security measures or any security breach related to Customer Data. Customer acknowledges and agrees that Fera Zero may use one or more third-party providers to host the Products.
FEES AND PAYMENT.
Fees. Customer shall pay all fees specified in all SOWs hereunder. All fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an SOW, fees are based on Products and/or Services procured, payment obligations are non-cancelable, fees paid are non-refundable, and the Products and/or Services procured cannot be decreased during the relevant term stated on the SOW.
Invoicing and Payment. Fera Zero will invoice Customer for: (i) Products in advance for the applicable subscription term; and (ii) Services in accordance with the applicable SOW. Unless otherwise stated in the SOW, charges are due within thirty (30) days from the invoice date.
Travel Reimbursement. Customer will reimburse Fera Zero for any travel associated with onsite Fera Zero resources associated with any live event(s), Services or Products which cannot reasonably be performed remotely.
Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Fera Zero’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Suspension of Products and/or Services. If Customer’s account is 30 days or more overdue, in addition to any of Fera Zero’s other rights or remedies, Fera Zero reserves the right to suspend the Products and/or Services provided to Customer, without liability to Customer, until such amounts are paid in full.
Taxes. Unless otherwise stated, Fera Zero’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder, excluding taxes based on Fera Zero’s net income or property. If Fera Zero has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Fera Zero with a valid tax exemption certificate authorized by the appropriate taxing authority.
Payment Processing. As part of the provision of the Products and Services, Fera Zero may require Customer to receive and transmit amounts payable (or reimbursable) through third-party payment platforms ("Payment Processors"). By using a Payment Processor, Customer acknowledges and agrees that all payments and monetary transactions through the Fera Zero Platform are handled by such Payment Processor, and to be bound by their respective terms of service. Customer acknowledges and agrees that Fera Zero shall not be liable for any issues related to payments and monetary transactions that occur through Customer’s (or any Users’) use of the Fera Zero Platform. This includes transactions that were not processed due to a network communication error, or any other reason. Customer agrees to not hold Fera Zero liable for any adverse effects that actions (whether intentional or unintentional) on the part of any Payment Processors may cause to Customer’s (or any Users’) accounts or its business.
INTELLECTUAL PROPERTY.
Residuals. Customer acknowledges that Fera Zero, in the provision of the Products and/or Services, may use concepts or modifications of concepts developed while serving other clients. Customer acknowledges the benefit which may accrue to Customer, and Customer expressly and irrevocably permits Fera Zero to continue in perpetuity, and without payment of a royalty, this practice of using concepts developed while serving Customer and modification of such concepts. The terms of this Section do not, however, affect the obligations of the parties under Section 6 (Confidentiality).
Fera Zero Intellectual Property. Fera Zero and its licensors shall own the Products, Services, Fera Zero Platform, including the underlying structure, functions, methods of operation, and ideas related thereto, and all documents, code, works of authorship, programs, manuals, tools, user interfaces, deliverables, developments, processes, formulae, data, specifications and inventions provided, created, owned, licensed, developed, authored or invented by Fera Zero (including its employees and contractors) prior to or independently of this Agreement, as well as enhancements, derivative works and/or modifications to the foregoing created by Fera Zero in the course of this Agreement and any SOW; all of such right, title and interest in them shall remain vested with Fera Zero (collectively, “Fera Zero Materials”). Except for the limited, express license and access grant provided to Customer and the Users pursuant to this Agreement, nothing in this Agreement or the Terms of Use shall grant to or confer upon Customer or any User expressly or by implication any rights to such Fera Zero Materials.
Generic Data. Fera Zero may use Generic Data to improve any Products and/or Services. Customer hereby grants to Fera Zero a non-exclusive, worldwide, perpetual, fully-paid up, transferable, royalty-free, irrevocable, sublicensable license to use, copy, sell, perform, display, distribute (directly and through multiple tiers), and create derivative works of the Generic Data for itself and others and without accounting to Fera Zero.
Suggestions. Customer hereby grants to Fera Zero a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Products and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer’s or Customer’s users relating to the Products and/or Services.
CONFIDENTIALITY.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all SOW hereunder), the Terms of Use, the Products and/or Services, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief.
Access to Data. During the term of this Agreement, Customer shall have access to Customer Data. Upon termination of the applicable SOW, Fera Zero will have no obligation to keep the Customer’s relevant data from such Products after the effective date of the termination of the applicable SOW (i.e., the termination of Products). Notwithstanding the foregoing, Customer is solely responsible for retrieving any data stored or used with the Products while Customer has access to the Products, and upon the effective date of the termination of the Products, Customer will not have access to the Products. Fera Zero shall also be permitted to retain Generic Data.
PRIVACY AND DATA PROTECTION.
Data Processing Addendum. The parties will process Personal Data (as defined in the DPA) in accordance with Attachment 1 (Data Processing Addendum) attached hereto (“DPA”).
INDEMNIFICATION.
Indemnification by Fera Zero. Subject to this Agreement and the Terms of Use, Fera Zero shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with third-party claims, demands, suits, or proceedings (collectively, “Claims”) made or brought against Customer alleging that the use of the Products as contemplated hereunder infringes the patents and/or copyrights of a third party; provided, that Customer: (i) promptly gives written notice of the Claim to Fera Zero; (ii) gives Fera Zero sole control of the defense and settlement of the Claim (provided that Fera Zero may not settle or defend any Claim absent Customer’s written consent (not to be unreasonably withheld) unless it unconditionally releases Customer of all liability); and (iii) provides to Fera Zero, at Fera Zero’s cost, all reasonable assistance. Fera Zero shall have no obligation regarding any claim arising from or relating to, in whole or in part, any of the following: (a) anything provided by Customer or a third party on Customer’s behalf; (b) modification of Products by Customer or a third party on Customer’s behalf; (c) the Products’ use other than in accordance with its applicable licenses and restrictions; (d) the combination, operation, or use of the Products with anything not provided by Fera Zero; or (e) the distribution, operation, or use of the Products outside Customer and Customer’s Affiliates or for the benefit of any third party.
Indemnification by Customer. Subject to this Agreement and the Terms of Use, Customer shall defend, indemnify and hold Fera Zero, its Affiliates and the officers, directors, employees, contractors and agents of Fera Zero and its Affiliates harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Fera Zero arising out of or resulting from: (i) any negligent, willful or unlawful act or omission by Customer or its Users; (ii) violation of any applicable laws or regulation by Customer or its Users; (iii) Customer’s (or its Users’) breach of this Agreement or the Terms of Use; (iv) Customer’s relationship with its employee(s), contractors or other third parties performing services or providing products on behalf of Customer (including in connection with any procurement activities related to any SOW); and (v) any allegations that the Customer Data, any materials provided by Customer (e.g., any intellectual property that Customer may provide hereunder) or Customer’s (or its Users’) use of the Products in violation of this Agreement or the Terms of Use, infringes the intellectual property rights of a third party; provided, that Fera Zero (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim absent Fera Zero’s written consent (not to be unreasonably withheld) unless it unconditionally releases Fera Zero of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
WARRANTIES AND DISCLAIMERS.
Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Further, Fera Zero represents and warrants that: (i) Fera Zero will provide the Products and Services in accordance with the applicable SOW; (ii) the functionality of the Products will not be materially decreased during a subscription term, except during a scheduled service disruption as provided herein or in the applicable SOW; and (iii) Fera Zero will implement reasonable measures to assure that the Products will not contain or transmit to Customer any Malicious Code.
Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FERA ZERO AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES (INCLUDING IMPLIED AND STATUTORY WARRANTIES) OTHER THAN THOSE EXPRESSLY PROVIDED IN SECTION 9.1, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, FERA ZERO AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PRODUCTS AND/OR SERVICES SHALL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ARE ERROR FREE. FERA ZERO DOES NOT PROVIDE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AND ALL OBLIGATIONS OR LIABILITIES FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, MAINTENANCE OR PERFORMANCE THEREOF. ANY ESTIMATE REGARDING SCOPE, TIME OF COMPLETION, COSTS, OR OTHER MATTERS WHICH MAY BE PROVIDED BY FERA ZERO ORALLY OR IN WRITING (WHETHER IN AN SOW OR OTHERWISE) ARE GIVEN USING COMMERCIALLY REASONABLE METHODS OF ESTIMATION AND ARE IN GOOD FAITH, BUT SHALL NOT BE CONSTRUED AS A WARRANTY OR GUARANTEE OF ANY TYPE. FERA ZERO DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR THE ACCURACY OF ANY DATA (INCLUDING ANY CUSTOMER DATA) AND/OR INPUT OR REPRESENTATIONS BY THIRD PARTY SUPPLIERS.
LIABILITY.
Limitation of Liability. IN NO EVENT SHALL FERA ZERO’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TERMS OF USE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
Exclusion of Consequential and Related Damages. CUSTOMER AGREES THAT THE CONSIDERATION WHICH FERA ZERO IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY FERA ZERO OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND OR LOSS OF CUSTOMER DATA, REVENUE, PROFITS, OR ANTICIPATED SAVINGS OR ACCURACY OF ANY DATA AND/OR INPUT OR REPRESENTATIONS BY THIRD PARTY SUPPLIERS, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PRODUCTS AND SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE PRODUCTS AND SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TERM AND TERMINATION.
Term of Agreement. This Agreement commences on the Effective Date and continues until the earlier to occur between the following events: (i) all SOWs executed under this Agreement have expired or been terminated or (ii) when this Agreement is otherwise terminated in accordance with this Section 11.
Termination for Cause. A party may terminate this Agreement and any SOW for cause: (i) upon 15 days written notice of a material breach of the Agreement to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Termination for Convenience. A party may terminate this Agreement and any SOW for convenience upon no less than 60 days prior written notice to the other party.
Additional Termination Rights. In addition, Fera Zero may at any time terminate this Agreement and any applicable SOW in the event that: (i) Fera Zero is required to do so by law (e.g., the provision of the Services to Customer is, or becomes, unlawful); (ii) the provision of the Products or Services to Customer by Fera Zero is, in Fera Zero’s opinion, no longer commercially viable; or (iii) Fera Zero has elected to discontinue the Products or Services (or any part thereof).
Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Fera Zero prior to the effective date of termination. Fera Zero is not obligated to issue a refund or credit for any unused portion of such Services.
Return and/or Deletion of Customer Data. Within a reasonable period after the termination or expiration of the applicable SOW and in accordance with Section 6.5, Fera Zero will return and (if so requested by Customer in writing or otherwise elected by Fera Zero) delete all Customer Data in Fera Zero’s systems or otherwise in Fera Zero’s possession or under Fera Zero’s control; provided, however, the foregoing shall not affect Fera Zero’s rights to Generic Data set forth in this Agreement, and Fera Zero shall be permitted to retain Generic Data after the termination or expiration of the applicable SOW and this Agreement.
Effect of Termination and Surviving Provisions. If this Agreement and/or the SOW is terminated, Fera Zero will cease to provide all Products and Services hereunder for Customer’s account and all licenses and access rights granted to Customer hereunder shall immediately terminate. Accordingly, Customer must immediately cease (and ensure that all Users immediately cease) all access to and use of the Products and Services and the Fera Zero Platform. The following provisions shall survive any termination or expiration of this Agreement: Sections 3.2 through 3.5 and Sections 4 through 13.
DISPUTE RESOLUTION.
Informal Dispute Resolution Procedures. Any dispute, controversy or claim of any kind or nature arising under or in connection with this Agreement (including, but not limited to, disputes as to the creation, validity, interpretation, breach or termination of this Agreement or any SOW) (a “Dispute”) will be considered in accordance with the dispute resolution procedures set forth in this Section 11. The dispute resolution process will be initiated upon receipt by a party of a notice from the other party specifying the nature of the Dispute. Notwithstanding the foregoing, either party may commence proceedings if delay in doing so would be prejudicial, because of the need for immediate provisional remedies, imminent expiration of applicable statutes of limitation, or other good cause.
Resolution Without Proceedings. The parties intend to use reasonable measures to avoid the litigation of any dispute under this Agreement. As a result, the parties mutually agree that any Dispute arising under or in connection with this Agreement will be resolved using the alternative dispute resolution provisions and procedures described in the Sections below. Except as otherwise agreed, the parties will each bear all of their own expenses incurred during the procedures and will pay one-half of any applicable fees of any mediator or third-party agency engaged to assist in resolution of disputes short of legal or arbitral proceedings. All negotiations pursuant to this Section 12 are confidential and will be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence. No proposals, offers, counter-offers or other communications will be admissible in evidence in any proceeding for any purpose; provided, however, that this will not be construed to render confidential, inadmissible or non-discoverable any otherwise admissible documents or other evidence merely because they were referred to, transmitted or otherwise used in any such settlement negotiations.
Negotiation. Upon written notice by either party, a Dispute will be submitted to the other party, who will meet and employ their best efforts to negotiate an amicable resolution of the Dispute. Unless the parties otherwise agree, this meeting and negotiation will occur no later than 10 days from the date of submission of the Dispute to such party, whichever occurs last.
Arbitration. Except as otherwise expressly set forth in this Agreement, any dispute that the parties are unable to resolve through negotiation will be submitted to binding arbitration in Los Angeles, California, administered by JAMS. In all disputes there shall be 1 arbitrator agreed to by the parties. The arbitrator shall issue a decision in writing, stating reasons therefor, including both findings of fact and conclusions of law, and may award any remedy available at law or in equity (consistent with the terms of this Agreement). The arbitrator shall have no power to amend or supplement this Agreement to award damages other than as permitted by this Agreement, or to fail to follow applicable law. Any award rendered by the arbitrator shall be final and binding on the parties, and may be confirmed by the judgment of a court of competent jurisdiction.
GENERAL PROVISIONS.
Relationship of the Parties. The parties are independent contractors. Neither this Agreement nor the Terms of Use create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Fera Zero may subcontract the performance of its obligations under this Agreement or the Terms of Use to a third party without the prior approval of Customer; provided, however, Fera Zero shall remain responsible for the performance of any such obligations.
No Third-Party Beneficiaries. Except for the indemnitees set out in Section 8 (Indemnification) and solely for purpose of such indemnities, there are no third-party beneficiaries to this Agreement.
Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Force Majeure. If and to the extent that a party's performance of any of its obligations pursuant to the Agreement (other than its obligation to pay amounts due thereunder) is prevented, hindered or delayed by fire, flood, hurricane, earthquake, other elements of nature or acts of God, acts of war, acts of a public enemy, acts of a nation or any state, territory, province or other political division, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, pandemics, theft, quarantine restrictions, freight embargoes or any other similar cause in each case beyond the reasonable control and without the fault or negligence of such party (each, a “Force Majeure Event”), then the non-performing, hindered or delayed party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Attorney Fees. Customer shall pay on demand all of Fera Zero’s reasonable attorney fees and other costs incurred by Fera Zero to collect any fees or charges due Fera Zero under this Agreement following Customer’s breach of Section 4 (Fees and Payment).
Publicity. Fera Zero may include Customer’s tradename and logo on publicly displayed customer lists (including Fera Zero Platform) and may make reference (oral or written) to Customer being a customer of Fera Zero. Without limiting the foregoing, neither party shall use the name of the other party in any press releases or case studies in connection with this Agreement without the prior written consent of the other party.
Non-solicitation. Neither party will, directly or indirectly, solicit for employment or hire any personnel of the other party who is involved in the performance of the Services during the term of this Agreement and for a period of 12 months thereafter, except as may be agreed to in writing by both parties. This restriction shall not apply to restrict the solicitation to hire or hiring of any employee or contractor of a party that responds to a general advertisement of the availability of employment that is not directed to such party or person.
Excuse from Performance. Fera Zero will be excused from failures to perform the Services and providing the Products to the extent that Customer or its agents fail to perform any of its obligations as identified in the applicable SOW in a timely manner or commit any other act or omission that causes Fera Zero’s failure to perform the Services or provide the Products.
Changes. Fera Zero retains the right, in its sole and absolute discretion, to change or add to the terms of this Agreement at any time, and such amendments will take effect immediately as of the effective date of such change.
Assignment. Subject to Fera Zero’s right to subcontract pursuant to Section 13.1, neither party shall assign or otherwise transfer this Agreement or any rights or obligations contained herein without the prior written consent of the other party. Notwithstanding the above, Fera Zero may assign its rights and obligations under this Agreement, without the consent of Customer, to an Affiliate or to a successor in interest to all or substantially all of its business or assets that relates to the subject matter of this Agreement.
Governing Law. This Agreement shall be governed exclusively by the laws of the State of California, without regard to its conflicts of laws rules.
Entire Agreement. This Agreement, including all SOWs and appendices thereto, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions of this Agreement and an SOW, the descending order of precedence shall be as follows: (i) this Agreement; and (ii) the applicable SOW. Notwithstanding the foregoing, this Agreement may be modified by specifically referencing the relevant conflicting provision of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or in any other order documentation (excluding duly executed SOWs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction.
Attachment #1 – Data Processing Addendum
This Data Processing Addendum (“DPA”) is an Attachment to the Master Agreement between Fera Zero and Customer (“Agreement”) This DPA sets forth the obligations of the parties with regard to the Processing of Personal Data.
Definitions
Unless otherwise defined below, all capitalized terms have the meaning given to them in the Agreement:
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“Personal Data Breach” means the unauthorized disclosure of or access to Personal Data on the Fera Zero Platform.
“Processing” or “Process” means any operation or set of operations performed on Personal Data, such as collecting, recording, organizing, structuring, storing, adapting or altering, retrieving, consulting, using, disclosing by transmission, disseminating or otherwise making available, aligning or combining, restricting, erasing, or destroying.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Subprocessor” means an Fera Zero Affiliate or third-party entity engaged by Fera Zero or an Fera Zero Affiliate as a Processor. “Fera Zero Affiliate” means an entity under control of, controlling or under common control of Fera Zero.
Data Protection
Scope and Role of the Parties. Customer is the Controller of the Personal Data and will comply with all Data Protection Laws applicable to it. Fera Zero is the Processor of the Personal Data, and Fera Zero will Process Personal Data in accordance with Customer’s documented instructions. Customer instructs Fera Zero to Process Personal Data to provide the Service in accordance with the Agreement (including this DPA). Customer may provide additional instructions to Fera Zero to Process Personal Data in compliance with Data Protection Laws; however Fera Zero will be obligated to follow such additional instructions only if they are consistent with the terms and scope of the Agreement and this DPA. The nature, purpose, and duration of the Processing are specified in the Agreement and this DPA. The Data Subjects, categories of data, and Processing operations are specified in Schedule A (Details of the Processing) attached hereto. Fera Zero will limit access to Personal Data to Fera Zero personnel who require access so Fera Zero can perform its obligations under the Agreement and this DPA.
Security. Fera Zero will implement technical and organizational measures on its Fera Zero Platform designed to protect Personal Data against a Personal Data Breach. Customer is responsible for using and configuring the Fera Zero Platform in a manner that enables Customer to comply with Data Protection Laws, including implementing appropriate technical and organizational measures.
Subprocessing. Upon Customer’s request, Fera Zero will make available to Customer a current list of Subprocessors authorized to Process Personal Data on behalf of Fera Zero under this Agreement (“Subprocessor List”). Fera Zero may update the names and location of Subprocessors. Customer hereby consents to all Subprocessors in connection with the provision of the Fera Zero Platform and the Processing of Personal Data.
Cooperation and Data Subjects' Rights. If a Data Subject contacts Fera Zero in relation to its Processing of Personal Data for Customer, Fera Zero will promptly redirect the Data Subject to Customer. Fera Zero will not disclose any Personal Data to a Data Subject or a third party unless required to do so by law. If required by applicable Data Protection Laws and required and requested by the Customer, Fera Zero will provide reasonable assistance to Customer in Customer’s response to Data Subjects. Unless prohibited by applicable law or a legally-binding request of law enforcement, Fera Zero will promptly notify Customer of any request by a government agency or law enforcement authority for access to or seizure of Personal Data.
Personal Data Breach. Upon becoming aware of a Personal Data Breach, Fera Zero will inform the Customer (but in no event less than 72 hours of Fera Zero becoming aware).
Retrieval and Deletion of Customer Data. Upon termination or expiry of the Agreement, Fera Zero will make available for Customer to retrieve and delete Personal Data in accordance with the relevant provisions of the Agreement.
Assistance to Customer. To the extent required by Data Protection Laws and taking into account the nature of Processing and the information available to Fera Zero, Fera Zero will provide Customer with reasonable assistance to enable it to comply with its obligations under Data Protection Laws.
Confidentiality. Fera Zero will inform its personnel engaged in Processing Personal Data of its confidential nature, and Fera Zero will train such personnel regarding their responsibilities and obligate such personnel to confidentiality obligations.
Privacy Policy. Customer represents, warrants and covenants that it will comply with Fera Zero’s privacy policy available at www.ferazero.com/privacy-policy.
Fera Zero Security Contact
Customer can reach Fera Zero contact at privacy@ferazero.com to report a security issue. In the event of a Personal Data Breach, Fera Zero will make available to Customer a Fera Zero staff member who can provide assistance in addressing all associated obligations.
Miscellaneous
This DPA will be governed by, and construed in accordance with, the laws of the jurisdiction set forth in the Agreement, except where otherwise required by applicable Data Protection Laws. This DPA is subject to the terms of the Agreement, including Section 10 (Liability).
The term of this DPA will end simultaneously and automatically at the latter of (i) the termination of the Agreement or, (ii) when all Personal Data is deleted from Fera Zero’s systems.
If there is a conflict between any provision in this DPA and any provision in the Agreement, this DPA will control with regard to the parties’ data protection obligations.
Schedule A – Details of the Processing
Categories of Data subjects
The Personal Data transferred concern the following persons:
Users
Administrators
Types of Personal Data
The Personal Data transferred concern the following categories of Personal Data:
First and last name; email contact information; zipcode; information on compost; User identification; location information.
Special categories of data
Customer will not submit or transmit to the Fera Zero Platform any Personal Data related to Special Categories of Personal Data or which is regulated by the United States Health Insurance Portability and Accountability Act. “Special Categories” means Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.
Processing operations
Fera Zero will Process Personal Data for purposes of the provision of the Fera Zero Platform pursuant to the terms of the Agreement.