Flexspring Master Service Agreement

Effective starting: May 1, 2018
Last updated: June 1, 2023

This Master Service Agreement shall govern the access rights to the Flexspring Data Integration Service (“Flexspring Service”), as defined below, as well as the performance of related IT consulting services between Flexspring Inc. (”Flexspring”) and the customer mentioned in the Proposal, as defined herein, issued by Flexspring or in the documentation provided to Customer (“Customer”). Flexspring and Customer are individually referred to as a “Party” and collectively as the “Parties”. Please read this agreement, the Privacy Policy, and the Acceptable Use Policy. Together, these three (3) artifacts form a unified agreement (“Agreement”).

1. DEFINITIONS

1. 1.1  "Access Credentials" means any username, identification number, password, personal identification number (PIN) or other security technology used to verify an individual's identity and authorization to access and use the Flexspring Service;
2. 1.2  "Authorized Users" means Customers employees, consultants, contractors, and agents who are authorized by Customer to access and use the Flexspring Service under the rights granted to Customer pursuant to this Agreement;
3. 1.3  "Customer Data" means all of Customer’s data processed through the Flexspring Service as well as any data, document or IP belonging to or controlled by Customer. For the avoidance of doubt, Customer Data does not include Deliverables or any other information reflecting the access or use of the Flexspring Service by or on behalf of Customer or Authorized Users;
4. 1.4  "Deliverables" means data mapping, business rules or other application logic developed specifically to configure the Flexspring Service according to Customer needs;
5. 1.5  "Documentation" means any manuals, instructions or other documents or materials that Flexspring provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Flexspring Service or Flexspring Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof;
6. 1.6  "Effective Date" means the date set forth in the Proposal or, if the Flexspring services are purchased on-line, the date of the purchase;
7. 1.7  "Fees" means the fees mentioned for the performance of the Services by Flexspring and for the access to and use of the Flexspring Service;
8. 1.8  "Flexspring Service" means the cloud-based data integration platform as a service developed and operated by Flexspring, acting as a bridge between two or more on-line services allowing them to communicate, share and synchronize information. It also includes various on-line applications that can be provided to Customer to monitor, control and configure the hosted data integration services;
9. 1.9  "Law" means any statute, law, ordinance, regulation, rule, code, order, treaty, common law, judgment, decree, other requirements or rule of law of any federal, provincial, state, local or foreign government, or any arbitrator, court or tribunal of competent jurisdiction;
10. 1.10  "Flexspring Materials" means the Services, Documentation and Flexspring Systems as well as any and all other information, data, documents, materials, works and other content that are provided or used by Flexspring or any Subcontractor in connection with the Flexspring Service or otherwise comprise or relate to the Flexspring Service or Flexspring Systems. For the avoidance of doubt, Flexspring Materials include Deliverables and any information, data, or other content derived from Flexspring's monitoring of Customer's access to or use of the Services (including logs and metrics on response times, resource use, events, etc.), but do not include Customer Data;
11. 1.11  "Flexspring Systems" means the information technology infrastructure used by or on behalf of Flexspring in providing the Flexspring Service and performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Flexspring or through the use of third-party services;
12. 1.12  "Person" means an individual, corporation, partnership, unlimited liability company, governmental authority, unincorporated organization, trust, association, or any other entity;
13. 1.13  "Personal Data" means any information that relates to an individual person and identifies or can be used to identify, locate, or contact that individual alone or when combined with other personal or identifying information;
14. 1.14  "Proposal" means the proposal submitted by Flexspring to Customer, if any, setting out the details of Flexspring’s offer with respect to the use of the Flexspring Service and the related Services;
15. 1.15  "Representatives" means, with respect to a Party, that Party's and its affiliates’ respective employees, officers, directors, consultants, agents, independent contractors, subcontractors, service providers, sublicensees and legal advisors;
16. 1.16  "Services" means the data integration services provided by Flexspring to enable and optimize Customer’s use of the Flexspring Service, as well as the onboarding and other services provided for by virtue of this Agreement, more specifically at section 4, or otherwise agreed upon between the Parties;
17. 1.17  "Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, equipment or components of or relating to the Flexspring Service that are not proprietary to Flexspring;
18. 1.18  Additional terms and expressions used in a particular context are defined elsewhere in this Agreement and shall have the meaning expressly assigned to them.

2. SCOPE OF THE AGREEMENT

• 2.1  Flexspring hereby grants to Customer, subject to the fulfillment of all its obligations hereunder, a non-exclusive, non-perpetual, terminable, and non-transferable right, to access and to use the Flexspring Service, for its internal business, in accordance with the terms of this Agreement and for the duration of the Initial Term or of any Renewal Term, as defined herein.
• 2.2  Flexspring also undertakes to supply the Services provided for in this Agreement, subject to the full payment thereof by Customer and fulfillment of its other obligations.
• 2.3  The Flexspring Service is based on software belonging to Flexspring and deployed on a virtual private cloud hosted in the United States and operated by Flexspring. It enables the extraction, transformation, loading and publication of Customer’s Data between two or more third-party systems. For the sake of clarity, the essential role of the Flexspring Service is to transfer and synchronize Customer Data and not to keep them for future reference or access.
• 2.4  The Flexspring Service will be made available to Customer within a reasonable delay following the Effective Date of this Agreement. Flexspring shall not be liable for any delay caused by an act or an omission of Customer.

3. TERM AND DURATION

• 3.1  This Agreement shall commence on the Effective Date and shall remain in force for an initial period of one (1) year (“Initial Term”), unless otherwise indicated in the Proposal. Each Party can terminate this Agreement pursuant to section 3.2
• 3.2  This Agreement shall automatically renew for successive renewal terms of one (1) year (each a “Renewal Term(s)”), except if otherwise provided in the Proposal, unless terminated by a Party upon written notice to the other Party. Such notice shall be given by Customer not less than one (1) month and by Flexspring not less than three (3) months prior to the expiry of the Renewal Term, or as otherwise permitted hereunder. The Fees may be increased once in a year for each Renewal Term, upon a thirty (30) days notice sent to Customer prior to the expiry of the Initial Term or of any Renewal Term. The increase can be due to i) general price increases, ii) a level of resource use by Customer that is over and above the anticipated or previously observed level or iii) a combination of both factors.
• 3.3  Termination for convenience under this section shall be effective at the expiration of the Initial Term or of the then current Renewal Term.

4. PERFORMANCE OF SERVICE

• 4.1  Flexspring shall provide Customer with the following Services, provided that Customer has fulfilled all its obligations hereunder:
• 4.1.1  Access to the Flexspring Service;
• 4.1.2  Flexspring onboarding consultation and advisory services to the extent provided for in the Proposal, consisting, among other services, in Customer Data mapping and integration logic as well as customized configuration of the Flexspring Service for Customer needs;
• 4.1.3  Deployment of the Deliverables as outlined in the Proposal;
• 4.1.4  Access to Flexspring customer support to troubleshoot and resolve technical issues;
• 4.1.5  Access to certain web applications such as “Flexspring Monitor” and “Flexspring Onboard” to monitor and manage data integration in real time; and
• 4.1.6  Corrective and evolutive updates of the Flexspring Service.
• 4.2  Flexspring is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement.
• 4.3  Unless otherwise stated in the Proposal or in a Change Order, services provided by Flexspring personnel will be performed remotely and no work or intervention on Customer premises from Flexspring personnel will be expected or required.
• 4.4  If either Party wishes to change the scope of performance of the Services set forth in the Proposal or requires additional services, it shall submit details of the requested change in writing (“Change Request”).
• 4.5  Upon notification of the Change Request, Flexspring will, within a reasonable time, provide Customer with a written estimate of:

• 4.5.1  the expected delay required to implement the Change Request;
• 4.5.2  any necessary variations to the Fees and other charges for the Services arising from the Change Request, being understood that the hourly rate for additional services in force at that time shall apply;
• 4.5.3  the likely effect of the change on the Flexspring Service; and
• 4.5.4  any other impact the change might have on the performance of this Agreement

• 4.6  Promptly after receipt of the written estimate, the Parties shall negotiate and agree in writing on the terms of such Change Request (a "Change Order"). No Change Order shall be binding upon the Parties unless it is signed by both of them.
• 4.7  Flexspring reserves the right, in its sole discretion, to make any changes to the Flexspring Service and Flexspring Materials that it deems necessary or useful to maintain or enhance the quality or delivery of Services to its customers, the competitive strength of Services, the cost effectiveness or performance of the Flexspring Service or to comply with applicable Law.
• 4.8  Services shall in no event include the diagnosis and rectification of any event resulting from (i) unauthorized use of the Flexspring Service (ii) any use of the Flexspring Service not in accordance with the Documentation or otherwise contrary to Flexspring’s instructions, (iii) failure of customer equipment, or (iv) in violation of Customer’s obligations under this Agreement and under the Acceptable Use Policy (altogether the “Not covered Service(s)”).
• 4.9  Flexspring may agree to perform Not covered Services, subject to their feasibility, availability of its personnel and agreement with Customer on the financial and technical terms and conditions of such performance of services. In all events, when requesting Services under this Agreement, Customer shall inform Flexspring’s representative of any fact involving a Not covered Services. Otherwise, additional charges may apply and/or the performance of the service may be denied by Flexspring at its sole discretion.
• 4.10  Flexspring may suspend, terminate, or otherwise deny access to, or use of, all or any part of the Flexspring Service or Flexspring Materials by Customer, any Authorized User or any other Person, without incurring any resulting obligation or liability, if:

• 4.10.1  Flexspring receives an order from a governmental authority that expressly or by reasonable implication requires Flexspring to do so;
• 4.10.2  Customer is in default to fulfill its payment obligations hereunder; or
• 4.10.3  Flexspring believes, in its reasonable discretion, that (i) Customer or any Authorized User has failed to comply with any term of this Agreement, accessed or used the Flexspring Service beyond the scope of the rights granted hereunder; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities.

5. FINANCIAL TERMS AND CONDITIONS

• 5.1  Customer shall pay Flexspring the Fees set forth in the Proposal or on any other platform or medium used by the Parties to enter into and perform this Agreement. Customer shall further reimburse Flexspring for out-of-pocket expenses incurred by Flexspring in connection with performing the Services, to the extent they were pre-approved by Customer ("Reimbursable Expenses").
• 5.2  The Fees will be invoiced as of the Effective Date of this Agreement, the net amount of which shall be payable upon receipt of the corresponding invoice by Customer, unless otherwise indicated in the Proposal. Reimbursable Expenses shall be paid by Customer within 30 days after the date of the invoice thereof, unless otherwise provided for in the Proposal.
• 5.3  Customer shall further be liable to pay any federal, state, provincial or local sales, investment, use and/or other applicable taxes arising out of Customer’s use of the Flexspring Service and of the Services under this Agreement, except any taxes on Flexspring’s income. Any such taxes will be invoiced in addition to any sum due by Customer to Flexspring under this Agreement.
• 5.4  Any payment that is not paid when due shall bear interest at the rate of 1.5% per month (18% yearly), from its due date until paid. Customer shall further reimburse Flexspring for all reasonable costs incurred by Flexspring in collecting any late payments or interest, including legal fees, court costs and collection agency fees.
• 5.5  The currency of this Agreement is the United States dollar (USD). All prices are in USD and payments shall be made in that currency, unless otherwise indicated in the Proposal.
• 5.6  All amounts payable to Flexspring under this Agreement shall be paid by Customer to Flexspring in full without any set-off, recoupment, counterclaim, deduction, debit, or withholding for any reason.
• 5.7  Fees are based on a reasonable utilization of its functionalities and of Flexspring’s technical support services. In case of requests or usage deemed excessive (“Overage”) by Flexspring, Overage fees may apply.

6. OBLIGATIONS AND WARRANTIES OF FLEXSPRING

• 6.1   In addition to its other obligations under this Agreement, Flexspring undertakes to and warrants that:

• 6.1.1  The Flexspring Service will be available as per the Flexspring Service Level Agreement (“SLA”);
• 6.1.2  It will maintain the Flexspring Service in good working order with access restricted to qualified employees or contractors of Flexspring or its hosting partners;
• 6.1.3  The Flexspring Service does not and will not violate any applicable Law, or any third party right, including any Intellectual Property rights, as defined below.

7. OBLIGATIONS AND WARRANTIES OF CUSTOMER

• 7.1  In addition to its other obligations under this Agreement, Customer will:

• 7.1.1  to the best of its abilities, provide Flexspring with all Customer specific relevant information for the successful implementation of the Flexspring Service, including Customer Data;
• 7.1.2  provide Flexspring with adequate access to Customer’s staff and other resources, as reasonably required to perform the Services;
• 7.1.3  obtain from Flexspring, if necessary and at its own costs, any additional training than the initial onboarding provided for in this Agreement for the use of the Flexspring Service;
• 7.1.4  use the Flexspring Service in such a way that:

• 7.1.4.1  it does not infringe any Law especially, but not limited to, server security, Personal Data protection, export restrictions as well as maintain any necessary permits or licenses that are required for its operations;
• 7.1.4.2  does not infringe any Intellectual Property of a third party;
• 7.1.4.3  grants access to the Flexspring Service only to Authorized Users and in compliance with this Agreement; and
• 7.1.4.4  it complies at all times with the Flexspring Acceptable Use Policy

• 7.2  Own or otherwise have obtained the necessary rights and consents in and relating to Customer Data so that, as received by Flexspring and processed in accordance with this Agreement, they will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, privacy or other rights of any third party, including Authorized Users, or violate any applicable Law.
• 7.3  The parties expressly agree that, with respect to any Customer Data actually processed by Flexspring, Customer is the data controller and Flexspring is a data processor. Customer acknowledges and agrees Customer Data may be transferred pursuant to Customer’s lawful instructions and configurations in Flexspring Service. Customer will ensure the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by Data Protection Laws.
• 7.4  In addition to the above, each party to this Agreement agrees to take appropriate technical and organizational measures against unauthorized or unlawful processing, accidental loss, destruction or damage of any Personal Information obtained from the other party.
• 7.5  Customer shall not, and shall cause the Authorized Users and its Representatives not to:

• 7.5.1  copy, modify, or create derivative works of the Flexspring Service or Flexspring Materials;
• 7.5.2  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Flexspring Service or Flexspring Materials to any Person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service, except as permitted under this Agreement or as outlined in the Proposal;
• 7.5.3  reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Flexspring Service or Flexspring Materials, in whole or in part;
• 7.5.4  bypass or breach any Flexspring security device, or protection used by the Flexspring Service or Flexspring Materials or access or use the Flexspring Service or Flexspring Materials other than by an Authorized User through the use of their own then-valid Access Credentials;
• 7.5.5  input, upload, transmit, or otherwise provide to or through the Flexspring Service or Flexspring Systems any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
• 7.5.6  damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Flexspring Service, Flexspring Systems, or Flexspring's provision of services to any third party, in whole or in part;
• 7.5.7  remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Flexspring Service or Flexspring Materials, including any copy thereof;
• 7.5.8  access or use the Services or Flexspring Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property rights or other right of any third party or that violates any applicable Law;
• 7.5.9  access or use the Services or Flexspring Materials for purposes of competitive analysis of the Flexspring Service or Flexspring Materials, the development, provision or use of a competing software service or product, or any other purpose that is to the Flexspring's detriment or commercial disadvantage;
• 7.5.10  otherwise access or use the Services or Flexspring Materials beyond the scope of the authorization granted under this Agreement; and
• 7.5.11  authorize or encourage any third party to do the above mentioned.

8. SUPPORT AND MAINTENANCE

• 8.1  During the Initial Term or any Renewal Term, Flexspring shall provide the support and maintenance services for the Services described in the Flexspring Service Level Agreement (“SLA”), included in the Proposal or otherwise provided to Customer and that Customer acknowledges having received and understood. Support and maintenance services shall be performed during the period for which Customer has paid the applicable fee at the support level and during the support term specified in the proposal.

9. SECURITY MEASURES

• 9.1  Flexspring shall take the appropriate technical and security measures to protect the physical security, confidentiality and integrity of the Customer Data and of the Personal Data of Authorized Users that will be kept by, imported on or will transit through the Flexspring Service, in accordance with the terms of this Agreement and applicable Law. Flexspring represents in this regard that it has and shall maintain an extensive Information Security Program based on ISO27002 that complies with SOC 2 requirements and that gets audited by a third party on an annual basis. Flexspring shall share reports from third party auditors upon request from Customer. Security measures include:

• 9.1.1  Use of encryption technologies to protect Customer Data both at rest and in transit;
• 9.1.2  Logical segregation of data between customers;
• 9.1.3  Use of a VPN solution for multi-factored control of access to Flexspring’s Virtual Private Cloud (“VPC”)
• 9.1.4  A segmented network architecture in the VPC that uses several subnets each having a specific vocation (DMZ, staging, production, VPN Gateway, logging) and strict inbound and outbound firewall rules;
• 9.1.5  The use of multi-node, multi-zone clusters with hot failover for core Services;
• 9.1.6  The use of revision-controlled configuration management solutions to deploy changes and maintain a history of changes;
• 9.1.7  The use of active intrusion detection and prevention, health checking, monitoring and alerting systems;
• 9.1.8  A disaster recovery plan and an implementation of the required procedures in case of a data breach;

• 9.2  Customer has and will retain sole responsibility for:

• 9.2.1  all Customer Data residing on Customer Equipment or otherwise hosted under Customer‘s control;
• 9.2.2  all information, instructions and other materials provided by or on behalf of Customer or any Authorized User in connection with the Services;
• 9.2.3  Customer Equipment;
• 9.2.4  the security and use of Access Credentials of Customer and its Authorized Users; and
• 9.2.5  all access to and use of the Flexspring Service and Flexspring Materials directly or indirectly by or through Customer Equipments or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

• 9.3  Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:

• 9.3.1  securely administer the distribution and use of all Access Credentials and protect them against any unauthorized access or use; and
• 9.3.2  control the content and use of Customer Data, including, if applicable, the uploading or other provision of Customer Data for processing by the Flexspring Service.

10. PROTECTION OF PERSONAL DATA

• 10.1  The Parties acknowledge that the Customer Data, and other data processed in the course of use of the Flexspring Service or performance of this Agreement, can contain Personal Data within the meaning of the Laws in force in the United States, the European Union or other countries. Such data will be mainly collected and controlled by Customer, whereby Flexspring acknowledges that it will collect Personal Data of Authorized Users for the purpose of providing access to the Flexspring Service. Consequently, each Party undertakes, during the period of validity of this Agreement and for the entire duration provided for by Law or by any personal data protection policy applicable to the Authorized Users or other individuals concerned, to comply with the applicable Laws on personal data protection while collecting and processing personal data entrusted to each of them, to maintain an adequate level of security of their computer systems in accordance with the Laws in force and to indemnify and hold the other Party harmless from any violation of applicable Law in this regard. This concerns more specifically, but not exclusively, the obtention of the required consents from the data subjects, restriction of Personal Data treatments, disclosure to third parties, Personal Data transfers, protection of confidentiality, secure storage, destruction within the prescribed time limits, etc. Each Party further undertakes to publish, maintain and comply at all times with a privacy policy that meets the requirements of applicable Laws.
• 10.2  Personal Data of Authorized Users will be subject to and protected by Flexspring Privacy Policy ("Privacy Policy") which may be amended periodically.
• 10.3  Customer agrees that for the purpose of this agreement, and subject to Flexspring’s compliance with its obligations hereunder, Flexspring shall be entitled to process Personal Data on behalf of Customer or relevant Customer partner outside of the European Union and, more specifically, in the United States.

11. CONFIDENTIALITY AND INTELLECTUAL PROPERTY

• 11.1  For the purpose of this Agreement:

• 11.1.1  “Confidential Information” means all information not generally known to the public, including Personal Data, to which the Recipient Party will have access in relation to the Disclosing Party and its related entities concerning its business, technology, operations and financial situation. Such information includes, without limitation, specifications, Documentation, programming, mapping and configuration techniques, research and development (including but not limited to the results of tests, successful or unsuccessful), lists of materials, working methods, ongoing projects, names of clients, suppliers, subcontractors, consultants and business partners, contracts, reports, forecasts, current or historical data on prices, cost price and other accounting data, business plans, as well as the Intellectual Property. Such confidential information may be verbal, written, computerized or in any other medium whatsoever and without being necessary to mark as "confidential" an information communicated by tangible medium. However, Confidential Information does not include any information that the Receiving Party can demonstrate with documentary evidence:

• (i) was rightfully known to the Recipient Party without restriction on use or disclosure before such information being disclosed or made available to the Recipient Party in connection with this Agreement;
  (ii) was or becomes generally known by the public other than by non-compliance with this Agreement by the Recipient Party or any of its Representatives;
  (iii) was or is received by the Recipient Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality;
  (iv) was or is independently developed by the Recipient Party without reference to or use of any Confidential Information; and(v) was disclosed with the Discloing Party’s written approval.

• 11.1.2  “Disclosing Party” means the Party to this Agreement that discloses Confidential Information.
• 11.1.3  “Intellectual Property” means all intellectual property rights, whether registered or not, registrable or not, owned by a Party or any third party in the world such as, without limitation, copyrights and copyrightable works (including programming languages, computer programs, software and applications), rights in data and databases, patent, industrial designs, inventions (whether patentable or not), discoveries, trade secrets, know-how, processes, methodologies, domain names, logos, trade-marks, trade-names and other rights acknowledged by statute or general Law in any part of the world regarding the above, including but not restricted thereto, any application for protection and the right to undertake judicial or administrative proceedings for past, present or future infringements of said intellectual property rights as well as the right to recover damages for such infringements.
• 11.1.4  “Improvement” means any concept, idea, design or invention which is a modification, adaptation, variation, addition, improvement or derivative to or of the Intellectual Property of a Party, including without restriction any development of the Flexspring Service.
• 11.1.5  “Recipient Party” means the Party to this Agreement that receives Confidential Information.

• 11.2  Each Party expressly undertakes and commits itself to the following as Recipient Party:

• 11.2.1  to treat the Disclosing Party's Confidential Information with the same level of care and caution that it would exercise in dealing with its own Confidential Information, being understood that each Party shall use at least a commercially reasonable degree of care;
• 11.2.2  not to, directly or indirectly, for its own benefit or for the benefit of any Person, disclose or allow the disclosure of Confidential Information of the Disclosing Party, for any purpose whatsoever except for the performance of its rights and obligations hereunder and in compliance with the terms of this Agreement ("Permitted Purposes");
• 11.2.3  not, directly or indirectly, for its own benefit or for the benefit of any Person and for any purpose other than the Permitted Purposes:    (i) decompile, deconstruct, reverse engineer or otherwise analyze any Confidential Information of the Disclosing Party; or    (ii) copy, translate, distribute or otherwise use any Confidential Information of the Disclosing Party;  without its prior written consent;
• 11.2.4  to disclose the Disclosing Party’s Confidential Information to its Representatives on a need-to-know basis and for the Permitted Purposes only. The Recipient Party shall be responsible to ensure that its Representatives use the Disclosing Party’s Confidential Information in compliance with the terms of this Agreement at all times and be liable for any breach of this Agreement by its Representatives;
• 11.2.5  to promptly notify the Disclosing Party of any unauthorized use or disclosure of its Confidential Information and to take such reasonable measures, at the Disclosing Party’s costs and upon its request, as may be required to protect the Confidential Information and prevent its unauthorized use or a breach of this Agreement.

• 11.3  In the event that the Recipient Party is compelled by Law or a court of competent jurisdiction to disclose any Confidential Information of the Disclosing Party, the Recipient Party may disclose such Confidential Information, provided that it shall, to the extent practicable and permitted by Law, promptly inform the Disclosing Party of the request or requirement for such disclosure, in order to give the Disclosing Party an opportunity, at its own discretion and expenses, to seek to make such disclosure subject to a protective order or other remedy to preserve the confidentiality of the Confidential Information.
• 11.4  The Parties agree that the Disclosing Party is the sole owner of all rights, titles and interests in its Confidential Information. The use of any Confidential Information by the Recipient Party will at all times remain for the benefit of the Disclosing Party. Nothing in this Agreement shall be construed as a transfer of rights or a license to use any Intellectual Property of the Disclosing Party, other than as expressly provided for in this Agreement or otherwise agreed between the Parties in writing.
• 11.5  All Intellectual Property rights, titles, and interests in and to the Flexspring Materials and the Flexspring Service, are and will remain with Flexspring and, with respect to Third-Party Materials, the applicable third-party providers own all Intellectual Property rights, titles, and interests, in and to the Third-Party Materials. Customer acknowledges and agrees that it has no right, license, or authorization with respect to any of the Flexspring Materials or Third-Party Materials except as expressly set forth herein or in any applicable third-party license, in each case subject to the terms of this Agreement. For the sake of clarity and unless otherwise provided for in the Proposal, the scope of this Agreement is the performance of Services by Flexspring and no deliverable provided for hereunder shall constitute a “work made for hire”. In the event that any such deliverable or other Flexspring Material is held to be a work made for hire, Customer hereby assigns to Flexspring all rights, title and interests therein and waives all moral rights or, to the extent such assignment is not permitted or effective, hereby grants to Flexspring a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable and assignable license to use any such deliverable or Flexspring Material for its internal business purposes.
• 11.6  Subject to the full payment of all amounts due by Customer, Flexspring hereby grants Customers an irrevocable, perpetual, fully paid-up, royalty-free, transferable, sub-licensable and worldwide license to use, execute, reproduce, transmit, modify (including to create derivative works), or otherwise exploit the Deliverables for its internal business purposes.
• 11.7  Customer acknowledges that it is not entitled to make any Improvement to the Flexspring Service without the prior written consent of Flexspring. Any Improvements of the Flexspring Service by Customer shall be the sole property of Flexspring. Accordingly, unless otherwise agreed between the Parties, Customer hereby irrevocably assigns, and shall cause its Representatives to irrevocably assign to Flexspring, without additional consideration, all right, title and interest throughout the world in and to the Flexspring Service. Customer further hereby waives and shall cause its Representatives to waive, to the extent permitted by applicable Law, any and all claims they may now or hereafter have in any jurisdiction to the moral rights with respect to Flexspring Service.
• 11.8  Customer may also submit comments, information, questions, data, ideas, description of processes, or other information to Flexspring while using the Flexspring Service or in the course of receiving the Services, excluding however information related to Customer’s or the Authorized users’ identity (“Feedback”). Flexspring may, in connection with any of its products or services, freely use, copy, disclose, license, distribute and exploit any Feedback, without any obligation, royalty or restriction based on Intellectual Property rights, for any purpose whatsoever. Feedback will not be considered Customer's Confidential Information and nothing in this Agreement shall restrict Flexspring's right to independently use, develop, evaluate, or market any such Feedback.
• 11.9  Customer is and will remain the sole and exclusive owner of all Intellectual Property rights, titles, and interests in and to all Customer Data, subject to the term of this Agreement. Customer hereby grants Flexspring and its Subcontractors the limited right and permission to use Customer Data, for the Initial Term and any Renewal Term only, solely for the purpose of performance of Flexspring’s rights and obligations under this Agreement and in compliance with the terms hereof.
• 11.10  Each Party acknowledges and agrees that a breach or threatened breach by the other Party of any of its obligations under this section would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity or otherwise.
• 11.11  The provisions of this article shall survive termination of this Agreement for any reason and remain binding upon the Parties and their successors and assignees until all Confidential Information of the other Party has become public information without fault, act or omission of a Party or its Representatives and as long as necessary to protect a Party’s legitimate interest in its Intellectual Property, which in any event shall mean for a minimum period of ten years, calculated from the Effective Date of this Agreement.

12. REPRESENTATIONS AND WARRANTIES

• 12.1  Each Party represents and warrants to the other Party that:

• 12.1.1  it is an entity duly formed and validly existing in the jurisdiction of its formation;
• 12.1.2  it has all required corporate power and capacity to enter into this Agreement as well as to grant the rights and perform the obligations provided for hereunder;
• 12.1.3  when executed and delivered by each of the Parties, this Agreement will constitute a legal, valid, and binding agreement enforceable between the Parties.

13. INDEMNIFICATION

• 13.1  Flexspring shall indemnify, defend, and hold harmless Customer [and Customer's officers, directors, employees, agents, successors, and assigns (each, a "Customer Indemnitee")] from and against any and all losses, damages, liabilities, claims, judgments, settlements, interest, awards, penalties, fines or expenses (“Losses”) of whatever kind, including reasonable legal fees, disbursements, and charges, and the cost of enforcing any right to indemnification hereunder as well as the cost of pursuing any insurance providers incurred by such Customer Indemnitee arising out of or relating to any claim by a third party alleging that Customer's or an Authorized User's use of the Flexspring Service (excluding Customer Data and Third-Party Materials) in compliance with this Agreement infringes an Intellectual Property rights. The foregoing obligation does not apply to any claim or Losses arising out of or relating to any:

• 13.1.1  modification of the Flexspring Service or Flexspring Materials by a third party, other than with Flexspring's written approval and in accordance with Flexspring's written specification;
• 13.1.2  failure to timely implement or approve any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Flexspring.
• 13.2  Customer shall indemnify, defend, and hold harmless Flexspring and its subcontractors and each of their respective officers, directors, employees, agents, successors, and assigns (each, a "Flexspring Indemnitee") from and against any and all Losses incurred by such Flexspring Indemnitee in connection with any claim by a third party arising out of or related to:
• 13.2.1  Customer Data, including any processing of Customer Data by or on behalf of Flexspring in accordance with this Agreement;
• 13.2.2  Customer use of the Flexspring Service in breach of this Agreement; and
• 13.2.3  Flexspring's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent it is prepared without any contribution by Flexspring;

• 13.3  Each Party shall promptly notify the other Party in writing of any claim for which such Party believes it is entitled to be indemnified under this Agreement. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such claim and shall employ counsel of its choice reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this section will not relieve the Indemnitor of its obligations hereunder, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
• 13.4  In the event that the Flexspring Service, the Services or Flexspring Materials are, or in Flexspring's opinion are likely to infringe, misappropriate or otherwise violate any third-party’s Intellectual Property rights, Flexspring may, at its option and sole cost and expense:
• 13.4.1  obtain the right for Customer to continue to use the Flexspring Service and Flexspring Materials materially as contemplated by this Agreement;
• 13.4.2  modify or replace the Flexspring Service and Flexspring Materials, in whole or in part, to seek to make the Flexspring Service and Flexspring Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality; or
• 13.4.3  by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Flexspring Service and Flexspring Materials or any specified part or feature thereof, provided to Customer.
• 13.5  THIS SETS FORTH CUSTOMER'S SOLE REMEDIES AND FLEXSPRING'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE FLEXSPRING SERVICE AND FLEXSPRING MATERIALS) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.

14. LIMITATION OF LIABILITY

• 14.1  FLEXSPRING HAS DEVELOPED AND MAINTAINS THE FLEXSPRING SERVICE TO THE BEST OF ITS KNOWLEDGE AND SKILLS AND ITS PROFESSIONAL TEAM IS COMMITTED TO PROVIDE AN EXCELLENT LEVEL OF SERVICE. HOWEVER, CUSTOMER ACKNOWLEDGES THAT ALL SERVICES AND FLEXSPRING MATERIALS INCLUDING ANY THIRD-PARTY MATERIAL THAT MAY BE INTEGRATED IN THE FLEXSPRING SERVICE ARE PROVIDED "AS IS" AND “AS AVAILABLE”. FLEXSPRING HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT. MORE SPECIFICALLY ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE ARE EXPRESSLY EXCLUDED. FLEXSPRING MAKES NO WARRANTY OF ANY KIND THAT THE FLEXSPRING SERVICE, THE SERVICES OR FLEXSPRING MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY CUSTOMER EQUIPMENT EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE PROPOSAL OR THIS AGREEMENT, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
• 14.2  FLEXSPRING SHALL HAVE NO OBLIGATION TO CHECK AND SHALL INCUR NO LIABILITY FOR CUSTOMER’S USE OF THE FLEXSPRING SERVICE AND MAINTENANCE OF CUSTOMER’S EQUIPMENT. AS WELL AS REGARDING THE CONTENT OF CUSTOMER DATA TRANSITING THROUGH THE FLEXSPRING SERVICE. FLEXSPRING HAS NO OBLIGATION TO AND WILL NOT VERIFY SUCH CONTENT NOR ITS COMPLIANCE WITH THE APPLICABLE LAW, ESPECIALLY WITH RESPECT TO PRIVACY, PUBLICITY OR ANY OTHER PERSONALITY RIGHTS.
• 14.3  FLEXSPRING MAY NOT BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSES OR ANY KIND MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, INCLUDING FOR ANY LOSS OF PRODUCTION, LOSS OF OR CORRUPTION OF DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATIONS TIME, LOSS OF GOODWILL, LOSS OF ANTICIPATED PROFITS OR ANTICIPATED SAVINGS, EVEN IF FLEXSPRING HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THEIR POSSIBILITY. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FOR THE SAKE OF CLARITY, LOSS INCLUDES A PARTIAL LOSS OR REDUCTION IN VALUE AS WELL AS A COMPLETE OR TOTAL LOSS.
• 14.4  EXCEPT AS OTHERWISE PROVIDED FOR HEREIN IN NO EVENT WILL THE AGGREGATE LIABILITY OF FLEXSPRING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED ONE MILLION DOLLARS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
• 14.5  THE EXCLUSIONS AND LIMITATIONS UNDER THIS SECTION DO NOT APPLY TO FLEXSPRING'S INDEMNIFICATION OBLIGATION UNDER SECTION 13, OR LIABILITY FOR FLEXSPRING'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

15. FORCE MAJEURE

• 15.1  In the event that either Party hereto shall be delayed or hindered or prevented from the performance of any act required hereunder, other than a payment obligation, by reason of strikes, lock-outs, labor troubles, inability to procure materials or services, countervailing or anti-dumping duties, failure of power, riots, insurrection, war, pandemic or other reasons of a like nature not the fault of the Party delayed in performing work or doing acts required under the terms of this Agreement, such Party shall immediately provide notice to the other Party of such delay, and performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
• 15.2  During the Force Majeure Event, the non-affected Party may similarly suspend its performance obligations until such time as the affected Party resumes performance.

16. TERMINATION

• 16.1  In addition to any other right set forth elsewhere in this Agreement:
• 16.1.1  Flexspring may terminate this Agreement, effective on written notice to Customer, if Customer:
• (i) fails to pay any amount when due hereunder, and such failure continues more than sixty (60) days after Flexspring's delivery of written notice thereof;
  (ii) is in violation of the confidentiality and intellectual property provisions of this Agreement; or      
  (iii) uses the Flexspring Service in violation with the terms of this Agreement.   

• 16.1.2  either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach:
• (i) is incapable of cure;      
  (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
  (iii) ceases to carry on business in the ordinary course, makes a general assignment for the benefit of its creditors, becomes subject to any involuntary proceeding under any domestic or foreign bankruptcy Law, commences or institutes any application, proceeding, or other action under any Law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plan of arrangement, relief or protection of debtors or similar Laws.

17. EFFECT OF TERMINATION OR EXPIRATION

• 17.1  Upon any expiration or termination of this Agreement, except as expressly otherwise provided for hereunder:
• 17.1.1  all rights, consents, and authorizations granted by either Party to the other hereunder will immediately terminate;
• 17.1.2  Flexspring may disable all Customer and Authorized User access to the Flexspring Service and Flexspring Materials;
• 17.1.3  Flexspring shall immediately cease all use of any Customer Data or Customer's Confidential Information and, within five (5) business days of Customer request, return to Customer or destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer's Confidential Information;
• 17.1.4  if Flexspring terminates this Agreement under section 16.1.1 or
  section 16.1.2, or if Customer otherwise terminates this Agreement for any other reason than as set forth in section 16.1.2;
• 17.1.5  all Fees that would have become payable had the Agreement remained in effect until expiration of the Initial Term or Renewal Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Flexspring's invoice therefore;
• 17.1.6  if Customer terminates this Agreement for cause under section 16.1.2, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Flexspring will refund to Customer, Fees paid in advance for Services that Flexspring has not performed as of the effective date of termination;
• 17.1.7  any rights and obligations which by their nature extend beyond the term of this Agreement (whether the Agreement is terminated after the Initial Term or any Renewal Term) shall survive and continue after any expiration or termination and shall bind the parties and their legal representatives, successors, heirs and assigns, where assignment is expressly permitted.

18. GOVERNING LAW AND SETTLEMENT OF DISPUTES

• 18.1  This Agreement shall be governed by and interpreted, construed and performed in accordance with the Laws applicable in the state of New York, United States of America, to the exclusion of its conflicts of law rules.
• 18.2  All disputes arising out of or in connection with this Agreement, in particular concerning its formation, existence, validity, effects, interpretation, implementation, violation, resolution or annulment, shall be mandatorily and finally resolved by means of arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one (1), the seat of the arbitration shall be New York and the language of the proceedings shall be English.

19. NOTICES

• 19.1  Any formal notice or communication to be given under this Agreement shall be in writing and sent by international express courier service, email or hand delivered. Any such notice or communication, if sent by email, shall be deemed to have been received on the same business day if sent prior to 5 p.m. (local time of the recipient), otherwise on the next business day, provided proof of sending of such notice can be produced or, if delivered by international express courier service or by hand, shall be deemed to have been received at the time it is delivered. Notices shall be sent to the postal or email address of the Parties as set out in the Proposal including any purchase order issued by Customer or any other documentation exchanged between the Parties.

20. MISCELLANEOUS

• 20.1  This Agreement, together with its preamble, schedules, policies and documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
• 20.2  In the event of any inconsistency or conflict between the terms and provisions of this Agreement and those of any schedule, policy or other document forming part of this Agreement or incorporated by reference, the following order of precedence shall govern:
• 20.2.1  any Change Order signed by both Parties;
• 20.2.2  the Proposal;
• 20.2.3  the terms of this Agreement, excluding the Privacy Policy, SLA and other policies or documents incorporated herein by reference;
• 20.2.4  the Privacy Policy, SLA and other policies or documents incorporated by reference to this Agreement
• 20.3  Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of Law, or otherwise, without Flexspring's prior written consent, which consent Flexspring shall not unreasonably withhold or delay. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this section shall be void.
• 20.4  No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
• 20.5  This Agreement is for the sole benefit of the Parties and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
• 20.6  The relationship of the Parties hereunder shall be that of independent contractors. Nothing in this Agreement shall be construed to constitute a partnership between or joint venture of the parties, nor shall either party be deemed the agent of the other party or have the right to bind the other party in any way without the prior written consent of such party, except as specifically provided in this Agreement.
• 20.7  This Agreement can be modified or amended by Flexspring from time to time, including any referenced schedule or policies. Flexspring will use reasonable efforts to notify Customer of any amendment, for example by sending an email to Customer, posting a notification on its website, etc. If Flexspring modifies the Agreement during the Initial Term or a Renewal Term, the modified version will be effective upon Customer's next Renewal Term. In this case, if Customer objects to the updated Agreement, as its exclusive remedy, he may choose not to renew this Agreement. Customer may be required to click through the updated Agreement to show its acceptance. If Customer does not agree to the updated Agreement after it becomes effective, Flexspring may suspend the access to the Flexspring Service or the performance of Services.
• 20.8  This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
• 20.9  If any provision of this Agreement is held invalid or unenforceable by any court or agency of competent jurisdiction, it shall be replaced, to the extent possible, by a legally valid and enforceable provision. The remainder of this Agreement shall nevertheless continue in full force and effect to the extent that continued operation under this Agreement without the invalid or unenforceable provision is consistent with the intent of the parties as expressed in this Agreement.
• 20.10  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 Intellectual Property without the prior written consent of the other Party, provided that Flexspring may include Customer's name and/or logo in its lists of current or former customers in promotional and marketing materials, unless advised otherwise by Customer in writing.
• 20.11  This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

21. TERMS SPECIFIC TO SERVICES PURCHASED ON THE ADP MARKETPLACE

• 21.1  FLEXSPRING HEREBY DISCLAIMS ON BEHALF OF ADP AND APPDIRECT ANY EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS OR WARRANTIES, AND ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
• 21.2  Customer’s and End Users’ sole and exclusive remedies shall be against Flexspring. ADP and AppDirect shall have no liability or obligation to Customers or End Users.
• 21.3  Customer and Authorized Users will not (i) decompile or reverse engineer the ADP Marketplace or take any other action to discover the source code or underlying ideas or algorithm of any components thereof, (ii) copy the ADP Marketplace, (iii) post, publish or create derivative works based on the ADP Marketplace, or (iv) remove any copyright notice, trade or service marks, brand names and the like from the ADP Marketplace or related documentation.
• 21.4  ADP and AppDirect are third party beneficiaries of the above described terms and each are entitled to enforce such terms as if they each were a party to this agreement.