Frescodata – Master Services Agreement

FrescoData LLC (“FrescoData” or “Company”) provides full-service and marketing services (collectively, the “Services”). This Master Services Agreement, your signed Order Form, any Change Orders or amendment (collectively, the “Agreement”), govern your receipt of the Services provided or made available to you by FrescoData. The terms “Customer,” “you,” and “your” refer to the customer (whether an individual or entity) identified in the Order Form obtaining, receiving, accessing, or using any Services provided or made available to you by FrescoData. FrescoData and Customer are each individually a “Party,” and collectively the “Parties.”

Please read this Agreement carefully as it constitutes a binding legal agreement between you and FrescoData. By signing an Order Form or otherwise obtaining, receiving, accessing, or using any  Services provided to you by FrescoData, you are indicating that you have read, understood, and agree to be bound by the terms of this Agreement.

Terms used in this Agreement with initial capital letters shall have the respective meaning set forth in Section 17 hereunder.

Master Services Agreement

1. Services. Company shall perform the Services for Customer as described in a mutually agreed upon Order Forms that incorporate the terms of and be governed by this Agreement. In the event of an inconsistency between any provisions set forth in an Order Forms and the provisions set forth in this Agreement, the provisions set forth in the Order Forms will govern, for that Order Form Only. Order Form means the document executed by both Parties pursuant to which Customer commits to purchase and Company commits to provide the Services specified in the document.

2. Change Orders. Changes to the Services will be subject to the mutual written agreement of the Parties. The Parties agree that modifications of an Order Form may be agreed via email by the Parties´ point of contact set forth in the relevant Order Form.

3. Fees. Customer will pay Company the fees set forth in the applicable Order Form (“Fees”). Unless otherwise stated in the applicable Order Form, payment is due by Customer, in advance, upon execution of each Order Form. All Company´s fees and charges are exclusive of all applicable taxes. As of the effective date of the Order Form (the “Effective Date”) the Services are exempt of taxes under governing law.  The Parties agree that if during the term of an Order Form the Services tax exception status changes, Customer will be responsible for payment of all taxes in connection with the Agreement. Each Party will be responsible for its own income, employment, and property taxes.

4. Non Refundable. Customer agrees and acknowledges that the Fees set out in an Order Form, once paid, are non-refundable (even in the event of termination or any other reason) and non-creditable against other fees payable in connection with another Order Form.

5. Intellectual Property Rights.

5.1 Preexisting IP. Each Party (or its licensors as applicable) shall retain ownership of its Preexisting IP.

5.2 Customer Content. Customer grants to Company (and its subcontractors), during the term of each Order Form, a non-exclusive, fully paid, worldwide, non-transferable, limited license to use Customer Content (and shall obtain the same license/consent as required from any third-party), solely for the purpose of providing the Services and materials set forth in an Order Form. Customer is fully responsible for Customer Content and (to the extent applicable to the scope of Services under an Order Form) its distribution in accordance with the terms of this Agreement.

5.3 Company Materials. Upon final payment of the Fees, Company shall, subject to Section 5.1 and 5.4 and to any restrictions applicable to any third-party materials embodied in the Company Materials, assign and convey to Customer all right, title and interest in and to the Company Materials. 

5.4 Company Preexisting IP. Effective upon final payment of the Fees, Company grants to Customer, subject to any restrictions applicable to any third-party materials embodied in the Company Preexisting IP, a perpetual, worldwide, non-transferable, non-exclusive, irrevocable right and license to use, copy, modify and prepare derivative works of the Company Preexisting IP for purposes of Customer and its affiliated companies’ internal business only. Company Preexisting IP embedded in Company Materials may not be used separately.

5.5 Company Licensed Data. Subject to the terms and conditions of this Agreement, Company hereby grants (or shall cause a third-party to grant) to Customer and its affiliates during the term set forth in the Order Form a world-wide, royalty-free (except for the Fees), non-exclusive, non-transferable (except as agreed upon herein) license to use, copy, reproduce, distribute, sell, sublicense, modify, and publish Company Licensed Data solely for purposes of Customer’s clients to develop marketing leads (including, but not limited to creating derivative works of and appending or merging the Company Licensed Data with other data). Company acknowledges that Customer may, sublicense the Company Licensed Data the clients of Customer’s products and services (the “End Users”), but only for fraud prevention use cases on a transaction by transaction basis. Customer agrees that it shall not, and shall not allow its End Users to, make any bulk transfer of Company Licensed Data to any third party, and Customer shall not allow its End Users to sublicense Company Licensed Data other than for fraud prevention and identity verification use cases.  Regardless, Customer shall be responsible for all acts and omissions of the End Users and any other persons or entities receiving Company Licensed Data directly or indirectly from Customer´s clients.  Rights not expressly granted to Customer herein are reserved to Company.

6. Confidentiality.

6.1 Confidential Information. In the course of performing its respective obligations under this Agreement, a Party may disclose to the other party certain Confidential Information. Notwithstanding anything to the contrary contained herein, Customer´s and its End Users’ use of Company Licensed Data in compliance with the license rights described herein shall not be considered to be a breach of any obligation of confidentiality described herein.

6.2 Restrictions. The receiving Party shall keep all of the disclosing Party’s Confidential Information in confidence and shall not use such Confidential Information for any purpose other than the limited purposes described in this Agreement. Except as agreed upon herein, the receiving Party shall not disclose such Confidential Information to any third Party; provided that the receiving Party may disclose the disclosing Party’s Confidential Information to the receiving Party’s outside legal counsel and accountants and to its employees, consultants, agents, advisors and board members (collectively, “Representatives”) who have been notified of the confidential nature of such Confidential Information.

6.3 Exclusions.

Nothing in the Agreement will prohibit or limit either Party’s use of information: (I) previously known to it without an obligation not to disclose such information, (ii) independently developed by or for it without use of Confidential Information, (iii) acquired by it from a third-party which was not, to the receiver’s knowledge, under an obligation not to disclose such information, (iv) which is or becomes publicly available through no breach of the Agreement, or (vi) which is required by law (i.e., an order of a court or data request from a governmental agency with competent jurisdiction) to be disclosed. Receiving Party shall use reasonable efforts to provide the disclosing Party at least 10 business days prior written notice before the disclosure of such information (but in any event shall otherwise provide such notification to the disclosing party as soon as practicable), unless otherwise prohibited by Applicable Law.

6.4 Safeguards. Each Party shall take reasonable measures to maintain reasonable and appropriate administrative, technical and physical, security safeguards designed to (I) ensure the security and confidentiality of Confidential Information; (ii) protect against anticipated threats or hazards to the security or integrity of Confidential Information; and (iii) protect against unauthorized access or use of Confidential Information that could result in harm or inconvenience to any consumer and, in any event, shall take such safeguards as it does with respect to its own Confidential Information.

6.5 Data Breach. If the receiving Party has knowledge or reason to believe that Confidential Information within the receiving Party’s control has been disclosed to, or otherwise accessed by, an unauthorized third party contrary to the terms of this Agreement (a “Data Breach”), the receiving Party: (i) shall immediately alert the disclosing Party; (ii) shall take such action as may be necessary to preserve forensic evidence and eliminate the cause of the Data Breach; and (iii) shall cooperate with disclosing Party to the extent reasonably required to respond to the Data Breach in a timely manner, to include, without limitation, assisting with any investigation, required to comply with applicable law, regulation, industry standards or as otherwise reasonably required by disclosing Party. In the event of a Data Breach, the receiving Party shall reimburse the disclosing Party for costs up to $1 MM (one million dollars) for: (i) actual, reasonable costs incurred in providing End Users affected by a Data Breach with notice of the Data Breach, and (ii) complimentary access for one (1) year credit monitoring services, credit protection services, credit fraud alerts and/or similar services, which the disclosing Party, in consultation with the receiving Party, deems necessary to protect such affected End Users in light of the risks posed by the Data Breach.

6.6 Remedies. In the event of actual knowledge of any breach of this Section, or the misappropriation of, any disclosing Party’s Confidential Information, receiving Party shall promptly give written notice thereof to the disclosing Party. The Parties agree that in the event of a breach or threatened breach, monetary damages may not be an adequate remedy. Therefore, in addition to any other remedies available at law, the disclosing Party will also be entitled to seek injunctive relief and/or specific performance to restrain any such breach, threatened or actual. Receiving Party shall cooperate with the other Party in mitigating, to the extent practicable, any damages due to such breach. Such cooperation shall not relieve the breaching party of any liability it may have as a result of such a breach.

6.7 Return or Destruction. Upon termination of this Agreement, each Party shall either return all Confidential Information, whether in electronic or other form, to the other Party, or, provide a written verification, signed by an officer of the receiving Party, that all such Confidential Information has been destroyed. Notwithstanding the foregoing, electronic copies stored in accordance with the receiving Party’s bona fide document retention policies may continue to be stored until overwritten or destroyed pursuant to such policies; provided that such copies shall remain subject to the terms hereof, and the receiving Party shall make no further use of those copies, until overwritten or destroyed.

6.8 No Publicity. Neither party shall use the other Party’s name, logo, service marks, or trademarks nor issue any news releases, advertising or promotional releases relating to this Agreement without the prior written approval of the other Party.

7. Compliance with laws.

7.1 General. Each Party shall comply with all applicable laws, including international, federal, state, and local laws and regulations, and the laws and regulations of the relevant jurisdiction(s), including any applicable data privacy, security and protection law, marketing or other privacy-related laws, statutes, directives or regulations, (collectively, “Applicable Law”), as well as any applicable self-regulatory guidelines.

7.2 Marketing Laws. The transmission of unsolicited email is regulated by the CAN-SPAM Act (United States), the EU Opt-In Directive (Europe), and CASK (Canada), among other laws, rules, and regulations in these and other countries, states, provinces, and jurisdictions. When applicable to the Services hereunder or when Customer uses Company Licensed Data, Customer warrants its compliance with laws, rules, and regulations regarding unsolicited email marketing.

7.2 Suspension. In the event that a change of law or regulation that makes the continued provision of the Services under this Agreement a violation of Applicable Law, the Company may suspend its performance under this Agreement with respect to the affected Services causing such violation.

8. Warranties.

8.1 Authority. Each Party represents, warrants, and covenants that: (A) it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and  accompanying Order Form to perform and carry out its obligations under this Agreement; and (B) the execution, delivery, and performance of this Agreement and accompanying Order Form does not violate any provision of any by law, charter, regulation, or any other governing authority of the Party and is duly authorized by all necessary partnership or corporate action or any other agreement, instrument, or understanding to which the Party is a signatory or by which the Party may be bound.

8.2 Warranty Disclaimer. Company makes no representation or warranty, express or implied, with respect to the accuracy or completeness of any information provided herein.  Moreover, Company makes no warranties with respect to the functions and features of any data or information will meet Customer´s requirements.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ITS INFORMATION OR THE SERVICES PROVIDED TO THE OTHER PARTY UNDER THIS AGREEMENT.

9. Indemnification

9.1 IP Infringement.

Each Party will defend and indemnify the other Party, including its parents, subsidiaries, affiliates, successors, and their directors, officers, employees, agents and representatives, against any third-party claims, including fines and penalties (and including interest   and court costs), that a Company IP or Customer IP (as applicable) provided pursuant to the Agreement, (a) infringes a third-party’s Intellectual Property Rights granted as of the date of delivery in any country in which the Services are delivered, or (b) misappropriates a third-party’s trade secrets. If any Company IP used in the Services or embedded in the Company Materials is, or is likely to be held to be, infringing, Company will at its expense and option either: (I) procure the right for Customer to continue using it, (ii) replace it with a non-infringing equivalent, (iii) modify it to make it non-infringing.

The indemnifying Party will have no liability to the extent the alleged infringement or misappropriation was caused by: (I) modifications to any Company IP or Customer IP (as applicable) made by or on behalf of the receiving Party; (ii) use of the Company IP or Customer IP (as applicable) other than as permitted under the Agreement or in combination with any products or services where such combination was not within the reasonable contemplation of the Parties; (iii) the failure to use corrections or enhancements to the Company IP or Customer IP (as applicable) provided by the indemnifying Party; or (iv) specifications or direction provided by the indemnified Party. To receive the benefits of this provision, the indemnified Party must promptly, and in any event within 5 business days, notify the indemnifying Party in writing of the third-party claim and provide reasonable cooperation and full authority to the indemnifying Party to defend or settle the claim, provided that such settlement does not impose any obligation (monetary or otherwise) on the indemnified Party (other than to cease using the infringing Company IP or Customer IP (as applicable) without its consent. This section sets out the sole and exclusive remedies for indemnified claims.

9.2 Customer´s Use. Customer also agrees to defend, indemnify and hold harmless Company including its parents, subsidiaries, affiliates, successors, and their directors, officers, employees, agents and representatives, against with respect to any claims which relates, directly or indirectly, to: (I) a breach of any term or condition of this Agreement by (a) its End Users,(b) any of its End User’s sublicenses, (c) any other persons or entities receiving Company Licensed Data directly or indirectly from Customer’s clients, and/or (d) any Representatives of any of the foregoing or (ii) a breach by Customer´s data privacy and protection obligations hereunder.

10. Limitation of Liability. Except as provided under Section 6.5, the sole liability of Company in relation to any and all claims in any manner related to the Agreement (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) will be for direct damages, not to exceed in the aggregate an amount equal to the total fees paid to Company under the applicable Order Form. In no event will Company be liable (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) for any: (I) consequential, indirect, incidental, special or punitive damages, or (ii) loss of profits, business, opportunity or anticipated savings (whether directly or indirectly arising). Nothing in the Agreement excludes or limits Company´s liability to the other which cannot lawfully be excluded or limited.

11. Term and Termination.

11.1 Term. Unless sooner terminated in accordance with the terms herein, this Agreement shall remain in effect for a period set forth in the Order Form (“Term”). 

11.2 Termination. A Party may terminate for breach an Order Form if it has given the other party written notice of material breach, and the breaching party has not cured the breach (if capable of being cured) within 30 days of receipt of such notice, provided Customer shall cure any breach of a payment obligation within 10 days of receipt of such notice.

11.3 Survival. Any term to the extent stated, or necessarily implied by their nature, to survive termination or expiration, shall survive termination or expiration of this Agreement and any Order Form. In addition, any payment obligations that have accrued under this Agreement shall remain in full force and effect until they are satisfied in full.

12. Acceptance. Except as otherwise agreed in the relevant Order Form, Services and deliverables will be deemed accepted upon receipt.

13. Subcontractor / Data provider. Customer agrees and acknowledges that Company may subcontract part of the Services hereunder. Further, Customer agrees and acknowledges that Company may use third party data provider to obtain the Company Licensed Data. Customer and Company agree that Company will not disclose the identity of the Company data providers except as may be required by a regulatory body pursuant to Applicable Law.  If Company introduces a data provider to Customer, Customer will not purchase, license, broker, sell or use data from such provider, except through Company, during the Term and for a period of three (3) years thereafter unless Customer has a pre-existing contractual relationship with such data provider.

14. Excuse. To the extent Customer fails to perform any of its responsibilities described in the Agreement, Company shall be excused from failure to perform any affected obligations under the Agreement and, in the event of delay, be entitled to a reasonable extension of time considering the particular circumstances, and a reasonable reimbursement of cost.

15. General.

15.1 Amendments. Any amendment or modification of any provision of this Agreement must be in writing, dated and signed by both Parties hereto.

15.2 Assignment. Neither Party may assign the Agreement (other than, upon written notice, to a Party’s subsidiary or affiliate under common control) without the prior written consent of the other, which consent will not be unreasonably withheld or delayed. The Agreement shall be binding on each Party’s permitted assignees.

15.3 Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto and supersedes all previous agreements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof.

15.4 Force Majeure. Neither Party shall be liable to the other for failure to perform, or delay in performance, under this Agreement if, and to the extent, such failure or delay is caused by conditions beyond its reasonable control and which, by the exercise of reasonable diligence, the delayed party is unable to prevent or provide against.  Such conditions include, but are not limited to, acts of God; strikes, boycotts or other concerted acts of workmen; laws, regulations or other orders of public authorities; military action, terrorism, state of war or other national emergency; fire or flood.

15.5 Dispute Resolution. Neither Party may commence any proceedings on a dispute relating to this Agreement (except where the Party seeks urgent interlocutory relief) unless it has first complied with this Clause 15.5. If a Party claims that a dispute has arisen, it must give written notice to the other Party specifying the nature of the dispute. The Parties will each nominate one person, and the two nominated persons will have authority to settle the dispute and will endeavor in good faith to resolve the dispute expeditiously and within 10 business days. If the dispute is not resolved, then any Party may at any time in the next 10 business days invite the representative from the San Diego Mediation Center to appoint a mediator to enable the parties to mediate and settle the dispute.  Mediation will take place accordingly. All discussions in the mediation will be without prejudice and will not be referred to in later proceedings.

15.6 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of California, United States of America, including its statutes of limitations, regardless of the laws that might otherwise govern under applicable California principles of conflicts of law.

15.7 No Other Relationship. Each Party is an independent contractor and does not have any authority to bind or commit the other. This Agreement shall not be construed to establish any partnership, agency or joint venture of any kind between Customer and Company, nor shall constitute either Party as the agent, employee, or legal representative of the other.

15.8 Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

15.9 Waivers. No failure or successive failures on the part of either Party, its respective successors or permitted assigns, to enforce any covenant or agreement, and no waiver or successive waivers, other than an express written waiver or discharge, on its or their part of any condition of this Agreement shall operate as a discharge of such covenant, agreement, or condition, or render the same invalid, or impair the right of either party, its respective successors and permitted assigns, to enforce the same in the event of any subsequent breach or breaches by the other party, its successors or permitted assigns.

16. Contact Information and Notices.

The Service hereunder are offered by FrescoData LLC, located at 5838 Edison Place, Suite #210, Carlsbad, CA 92008 USA. You may contact us by sending correspondence to the foregoing address or by emailing us at info@frescodata.com. All notices and requests in connection with this Agreement shall be given in writing and shall be deemed given as of the day they are received either by messenger, delivery service, or in U.S. mail, postage prepaid, certified or registered, with return receipt requested. In addition, FrescoData may provide any notice to Customer via email, and such notices shall be presumed to have been received on the business day following the day of a successful email transmission.

17. Definitions

Terms used in this Agreement with initial capital letters shall have the respective meaning set forth in this Section:

“Company IP” means collectively Company Materials, Company Licensed Data and Company Preexisting IP.

“Customer IP” means collectively Customer Content and Customer Preexisting IP.

“Company Materials” means any work product and other materials, including without limitation, reports, documents, templates, studies, software programs in both source code and object code, specifications, business methods, tools, methodologies, processes, techniques, solution construction aids, analytical frameworks, algorithms, know-how, processes, products, documentation, abstracts and summaries thereof, that are originally developed by Company during the course of its performance of the Services  to Customer and outlined in an Order Form. Company Materials exclude Company Preexisting IP;

“Company Licensed Data” means the data specified in an Order Form licensed by Company, in accordance with the terms of this Agreement, to Customer.

“Confidential Information” means confidential or proprietary data or information disclosed by one Party to the other Party, under this Agreement whether in written, graphic, machine recognizable, electronic, sample, or any other visually perceptible form, or in oral form, which would reasonably be understood to be confidential  under the circumstances (including all business, technical, and financial information). Confidential Information, includes Company Licensed Data and the terms of this Agreement.

“Customer Content” means any work product and other materials, including without limitation, reports, documents, templates, studies, software programs in both source code and object code, specifications, business methods, tools, methodologies, processes, techniques, solution construction aids, analytical frameworks, algorithms, know-how, processes, products, documentation, trademark, service marks, logos and other similar rights abstracts and summaries thereof, that are proprietary to Customer or to third parties, provided by Customer to Company to provide the Services hereunder. Customer Content is Customer Preexisting IP;

“Intellectual Property Rights” means all tangible and intangible rights associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; trademarks and trade name rights and similar rights; trade secret rights; patents, designs, algorithms, and other intellectual or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues now or hereafter in force (including any rights in the foregoing).

 “Preexisting IP” means either Parties Intellectual Property Rights, including without limitation patents, copyright, know-how, trade secrets and other proprietary rights which were existing prior to the Order Form, or intellectual property developed, licensed or acquired by or on behalf of a Party or its licensors independently from the Services or the deliverables, in each case including any modifications or derivatives which may be created as part of the Services.  

“Services” means the specific services to be performed by Company for Customer that will be set forth and agreed by the Parties in an Order Form.

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