MASTER SERVICES AGREEMENT
Last updated: April 1, 2021
By agreeing to this Master Services Agreement (“Agreement”) of DB3 Mobile, Inc. d/b/a Meal Ticket (the “Company”), you represent that you have the right to bind your organization (“Customer”) to its terms and conditions. If you do not have such right, you should not agree to this Agreement or use the Services defined below.
1. ORDERING & SERVICES
1.1. Ordering. Customer may order from the Company: (a) licenses to access and use the Company’s online service, including any add-ons or modules (collectively, the “Services”) and/or (b) related professional services (collectively, “Professional Services”). The specifics of each Customer Order will be set forth on an order form or similar document agreed to by the relevant parties (“Order Form”). Each Order Form constitutes a binding commitment to purchase the items described on such Order Form, and all Order Forms are incorporated herein by reference.
1.2 Grant. Customer may access and use the Services in accordance with and subject to any restrictions set forth in this Agreement and other documents expressly referenced herein. Subject to the terms and conditions of this Agreement, the Company grants to Customer a non‑exclusive, non‑transferable right, during the Subscription Term, to: (a) permit its designated users (“Users”) to access and use the Services for Customer’s business purposes in accordance with the Company’s published documentation made available by the Company (collectively, the “Documentation”); and (b) use and reproduce the Documentation as needed to support Customer’s use of the Services.
1.3 Restrictions. Except as otherwise permitted hereunder, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Services, except to the extent such restriction is not permitted by law; (b) distribute, transfer, sublicense, or otherwise make available the Services (or any portion thereof) to third parties other than Users, or as otherwise provided herein; (c) use the Services in violation of the Documentation or any applicable law, rule or regulation, including any export/import laws, or (d) in any way access, use, or copy any portion of the Services to directly or indirectly develop, promote, distribute, sell or support any competitive product or service.
1.4 Professional Services. The Company or its third-party providers will perform the Professional Services set forth on the applicable Order Form (if any). The particulars of each Professional Services engagement will be as set forth in executed statements of work (each, an “SOW”) entered into by the parties. Unless otherwise set forth in the applicable SOW, the Company will retain all right, title and interest in and to all deliverables (including any and all intellectual property rights therein) provided under each SOW (“Deliverables”) except to the extent they contain any pre‑existing Customer intellectual property. Customer’s rights to the Deliverables shall be the same as Customer’s rights to the Services to which they pertain.
1.5 Customer Content. Customer: (a) owns or has sufficient rights to all content and data that it uploads via the Services (“Customer Content”) to permit the Company to perform its obligations hereunder; (b) shall be solely responsible for the accuracy and quality of any and all Customer Content; and (c) acknowledges that the performance of the Services is dependent on the accuracy and quality of Customer Content and Customer’s compliance with industry best practices with respect to use of the Services. Without limiting the generality of the foregoing, Customer will provide the Company with Customer Content including but not limited to sales data, product data, customer information and information about sales representatives. A data feed of Customer’s sales history for the prior 24 months will be required for the reporting tools/analytics provided through the Services. Customer grants the Company a non-exclusive, worldwide, royalty-free and fully paid license to: (a) use, copy, transmit, store, and publish the Customer Content as necessary for purposes of providing the Services and performing its obligations under this Agreement and (b) use the Customer Content (i) to provide the Services and to perform its obligations under this Agreement; and (ii) for research and development purposes, including but not limited to measuring and improving the effectiveness of the Services. For the avoidance of doubt, the Company will not disclose Customer Content to third parties except as authorized hereunder or by the parties in writing. The Company may collect and use information derived from general use and operation of the Services (“Usage Data”) to create derivative data or aggregated insights and analytics for the Company’s general commercial purposes, provided that the Company may only disclose Usage Data in an anonymous, aggregated format that in no way identifies Customer or any User.
2. Fees and Expenses; Payments
2.1 Fees. All fees for licenses to the Services and/or for Professional Services (collectively, the “Fees”) will be set forth on the applicable Order Form. Customer is responsible for any and all applicable sales, use and other taxes (other than taxes based on the Company’s income). Unless otherwise agreed to in writing, each party is responsible for its own expenses under this Agreement. Customer agrees that its purchases are not contingent upon the delivery of any future functionality or features or promises related thereto.
2.2 Payment Terms. Unless otherwise agreed to in writing by the parties, Customer will pay to the Company all Fees upon the Company’s issuance of an invoice. Except as set forth herein, all amounts paid are non‑refundable. Any undisputed amounts not paid when due will bear interest at the greater of 1.5% per month or the maximum legal rate. If Customer fails to pay any undisputed amount when due under this Agreement, the Company will provide a reminder notice to Customer. If Customer does not pay such overdue amount within 15 days of the reminder notice, the Company may withhold performance and suspend Customer’s access to the Services until all undisputed amounts due are paid in full.
3. Ownership & REWARDS PROGRAMS
3.1 Ownership. As between the parties, the Company or its partners will retain all ownership rights in and to the Services, all updates and/or upgrades thereto, the Documentation, Deliverables, and other derivative works of the Services and/or Documentation that are provided by the Company or its partners, including any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Services, and all intellectual property rights incorporated or related to the foregoing. As between the parties, Customer will retain all ownership rights in and to all Customer Content.
3.2 Rewards Programs. In the event Customer offers a Rewards Program(s), Customer agrees and acknowledges that Customer will be solely liable for such Rewards Program and its administration and execution. Customer will provide each User or end-user with any required terms and conditions associated with the Rewards Program. Customer will comply with all necessary state filings and registrations required to perform any Rewards Program, including but not limited to laws related to abandoned property or escheat. In the event Customer’s Rewards Program offers general-use prepaid cards, gift certificates, store gift cards, or similar prepaid payment device, Customer will comply with all applicable state and federal laws.
4. Warranties and Disclaimers
4.1 By the Company. Company warrants that (a) the Services, as delivered and when used in accordance with the Documentation, will perform in all material respects as specified in the Documentation; (b) the Professional Services will be performed in a professional and workmanlike manner in accordance with reasonable industry standards; and (c) the Company will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Services that are intentionally designed to permit unauthorized access to or use of either the Services or Customer’s computer systems (“Viruses”). In the event of any breach of the warranty in the foregoing subsections (a) or (b), the Company shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies that cause the Services or Professional Services, as applicable, to not conform to the foregoing warranty promptly after its receipt of written notice from Customer. The Company will not be liable to the extent that any breach of the foregoing warranties are caused by (x) third-party components (including in combination with the Services) not provided by the Company; (y) unauthorized use or use of the Services other than in accordance with the Documentation; or (z) Viruses introduced by Customer or its agents.
4.2 By Customer. Customer represents and warrants to the Company that the Customer Content will not (a) infringe any third-party intellectual property right, including but not limited to any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage the Services; or (e) otherwise violate the rights of any third party. Customer further warrants that: (x) it will comply with all applicable laws relating to the collection, use, processing, security, and transfer of Customer Content that it provides to the Company, including any data that alone or in combination can be used to identify an individual (“Personal Data”), (y) ensure that Customer and the Company have the right to collect, use and share Customer Content via the Services, and (z) provide adequate notice to, and obtain any necessary consents from, and establish any applicable terms and conditions with, any third parties as required under all applicable laws with respect to Customer Content collected, used, transmitted and shared by Customer or by the Company via the Services. Customer shall indemnify, defend and hold harmless the Company from and against any and all claims or liabilities of any kind arising out of a breach of the foregoing warranties.
4.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS,” AND THE COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY THE COMPANY. THE COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT ANY CONTENT OR DATA WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED, OR THAT OPERATION OF THE SYSTEM AND SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
5. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SERVICES, PROFESSIONAL SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER, SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE-YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES. NOTWITHSTANDING THE FOREGOING, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.
6. Indemnification BY THE COMPANY
The Company will (a) defend, or at its option settle, any action, suit, or proceeding filed by a third party against Customer (a “Suit”) to the extent such Suit claims that Customer’s use of the Services as permitted in this Agreement constitutes infringement or misappropriation of such third party’s intellectual property rights; and (b) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agreed to by the Company in a monetary settlement of such Suit. If any portion of the Services becomes, or in the Company’s opinion is likely to become, the subject of a claim of infringement, the Company may, at the Company’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing services which do not materially impair the functionality of the Services; (c) modify the Services so that they become non-infringing; or (d) terminate this Agreement and refund any Fees actually paid by Customer to the Company for the remainder of the Subscription Term then in effect, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, the Company will have no obligation under this section or otherwise with respect to any infringement claim that arising from (x) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Services in combination with other products, equipment, software or data not supplied by the Company; or (z) any modification of the Services by any person other than the Company or its authorized agents. This section states the sole and exclusive remedy of Customer and the entire liability of the Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
7. Term and Termination
This Agreement shall continue in effect until terminated as set forth herein. The term of each license to the Services purchased by Customer will commence on the date set forth on the applicable Order Form and will continue for the period set forth on such Order Form, including any renewal term (collectively, the “Subscription Term”). Unless otherwise set forth on the applicable Order Form, Customer’s license to the Services will automatically renew for successive 12 month terms with an automatic 5% increase in Fees for each subsequent renewal term, unless either party gives the other party written notice of its intent not to renew at least 60 days prior to the end of the applicable Subscription Term. Customer’s right to use the Services will end once the applicable Order Form has been terminated or expires, and any information or content that Customer may have stored on the Services, including Customer Content, may be unavailable after termination or expiration. The Company is not responsible or liable for any records or information made unavailable to Customer as a result of the termination or expiration of the Services.
If the Company reasonably determines that Customer’s or any User’s access or use of any portion or all of the Services contains or creates a material risk to the Services, then the Company may immediately suspend Customer’s access to the Services, provided that the Company will provide prior notice to Customer of any such suspension to the extent commercially reasonable. Customer will remain liable for all Fees during any such suspension.
9. CONFIDENTIAL INFORMATION
“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonably should have known is considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that the receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before the effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or as otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
Except with respect to Customer’s payment obligations, each party will be excused from any delay or failure in performance hereunder solely to the extent it could not perform due to any occurrence or contingency beyond its reasonable control, including but not limited to acts of God and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership or a joint venture between the parties. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Except as otherwise set forth herein, neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent, except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Idaho, without regard to its conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Ada County, Idaho. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. If any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals or other documents submitted by the parties. The terms on any purchase order or similar document submitted by Customer to the Company will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in this Agreement and/or the applicable Order Form and, if sent to the Company, will be sent to the following address:
Attn: Legal Notices
DB3 Mobile, Inc.
1775 W State Ste. #151
Boise, ID 83702