General Terms and Conditions for the Master Service Agreement
These General Terms and Conditions for the Master Service Agreement (“Terms and Conditions”) apply to the Master Service Agreement (the “Agreement”) to which these Terms and Conditions are incorporated and made part of. Capitalized terms used in these Terms and Conditions and not defined herein have the meanings as defined in the Agreement.
- Authorization to Proceed. Greenlight may require that a purchase order be issued by Client for some or all approved Services or Products. Any pre-printed purchase order provisions shall be deemed deleted and shall not apply. In the event of any conflict between the Agreement (including these Terms and Conditions) and any purchase order provided by Client, the terms of the Agreement shall control.
- Materials and Expenses. Unless expressly stated otherwise in a SOW, WCO or Quote signed by both Greenlight and Client, the fee schedule in a SOW, WCO or Quote does not include materials or expenses (software, hardware, long distance telephone calls, shipping, etc.) required in connection with performing the Services. Such materials and expenses (“M&E”) will be billed by Greenlight to Client at cost plus 20%. The cost of such materials (including the markup) will also be subject to sales tax as required by law.
- Travel. Unless expressly stated otherwise in a SOW, WCO or Quote signed by both Greenlight and Client, the fee schedule in a SOW, WCO or Quote does not include travel expenses (airfare, meals and accommodations) or travel time. Greenlight’s travel expenses will be billed by Greenlight to Client at cost. Travel time is billed at Greenlight’s standard hourly rates for the first 8 hours of each day for the applicable personnel (as stated in the applicable SOW, WCO or Quote). After the first 8 hours of travel each day, travel time is billed at 50% of Greenlight’s standard hourly rates for the applicable personnel.
- Meetings. If any meetings other than as described in a SOW or Quote are requested or required, that may require a WCO.
- Invoice/Payment Terms. Greenlight may require a retainer payment before beginning to perform any Services. The amount of any required retainer will be stated in the applicable SOW, WCO or Quote. Greenlight will provide Client an invoice for any required advance payment amount. If a retainer is required, it will be held by Greenlight and credited against Greenlight’s final invoice at the conclusion of the Services pursuant to the SOW, WCO or Quote for which the retainer was provided.
- Greenlight will invoice Client on a monthly basis in advance for any recurring Services. Payment of the full monthly amount owed for recurring Services is due by the first day of the calendar month in which such Services are to be performed.
- Any fees for Services other than recurring Services and any charges for Products will be invoiced monthly, and payment for Products and non-recurring Services is due in full within 15 calendar days of the invoice date.
- If any amount owed by Client to Greenlight is not paid in full within 15 calendar days after date of invoice, Greenlight may at its discretion cease providing Services and Products until the invoice is paid in full. If Greenlight ceases to provide Services due to a lack of timely payment by Client, any previously estimated time frames or delivery dates stated in any SOW, WCO or Quote (or in any other document) will no longer apply. Any failure to timely and fully pay any amount owed by Client to Greenlight is a material breach of the Agreement.
- If credit information regarding Client cannot be obtained or confirmed by Greenlight prior to start of Services or if Client fails to timely pay two or more invoices, Greenlight may change payment terms to a COD or pre-payment basis upon written notice to Client. Client agrees to pay simple interest at the rate of 1.5% per month (18% per annum) or the lawful limit in California, whichever is lower, on any past due balance. A balance is “past due” if not paid within 30 calendar days of the invoice date.
- Client is solely responsible for providing its accurate contact information to Greenlight for purposes of Greenlight invoicing and communicating with Client. Invoices will be sent to Client’s e-mail address unless otherwise agreed to by Greenlight and Client.
- Payments to Greenlight are to be mailed to:
Greenlight Information Services, LLC
15375 Barranca Pkwy, STE A215
Irvine, CA 92618
- Charges for any travel expenses (airfare, meals and accommodations) or travel time will be included as part of the regular invoices submitted to Client.
- In addition to fees for Services, travel expenses and M&E costs, Client will pay any applicable taxes, such as sales, use, value added or similar taxes, applicable to any Services or Products provided by Greenlight for Client.
- Right to Assign Personnel. Greenlight has the sole right to determine which of its employees or subcontractors, as applicable, shall be assigned to perform Services, and to replace or reassign such employees or subcontractors, as applicable, during the term of the Agreement. In addition, any Client initiated delays may necessitate reassignment of personnel.
- Confidentiality. Each party acknowledges that it or its officers, directors, owners, employees and agents may, in the course of performing its responsibilities under the Agreement, be exposed to or acquire information which is proprietary to or confidential to the other, its affiliated companies or third parties to whom such party has a duty of confidentiality. For purposes of the Agreement, “Confidential Information” shall include, without limitation, any information obtained by Greenlight or Client (or to which either of them has access) in connection with the Agreement that relates to the party disclosing such Confidential Information (the “Disclosing Party”) and its past, present or future: (a) business activities, products, and/or developments; (b) employees, customers, counterparties, third party suppliers and/or contractors; (c) intellectual property; (d) agreements, including without limitation, the Agreement, and any records maintained thereunder; (e) information relating to plans, pricing, methods, methodologies, processes, financial data, lists, apparatus, statistics, programs, research, development, systems, source code, and/or information technology; and/or (f) any other information that, given its nature, would reasonably be intended to be confidential. Each party agrees to hold such Confidential Information in strict confidence and not to disclose to any person, firm or enterprise, or use any of the Disclosing Party’s Confidential Information. Each party will treat the Disclosing Party’s Confidential Information with the same degree of care that it treats its own confidential or proprietary information, but in no event using less than a reasonable standard of care. Each party may disclose the Disclosing Party’s Confidential Information to its employees and contractors, who are bound by confidentiality obligations with respect to such Confidential Information that are no less restrictive than those set forth in this Section 7, and solely to the extent necessary or appropriate for it to perform its obligations under the Agreement. Each party may disclose the Disclosing Party’s Confidential Information if required to do so under applicable law or if otherwise legally compelled to so disclose, provided that it, where reasonably practical and to the extent legally permissible, provides the Disclosing Party with prior written notice of the required disclosure so the Disclosing Party may (at its own expense) seek a protective order or other appropriate remedy, and provided further that such party discloses no more of the Disclosing Party’s Confidential Information than reasonably necessary to respond to the required disclosure and cooperates, at the Disclosing Party’s cost and expense, with any action the Disclosing Party takes to seek a protective order or other appropriate remedy. Confidential Information shall not include information which the nondisclosing party can show by objective or verifiable evidence is: (a) in or becomes part of the public domain (or otherwise available to the public) other than by disclosure by a party in violation of the Agreement (including these Terms and Conditions); (b) demonstrably known to such party previously; (c) independently developed by such party without the use of any of the Disclosing Party’s Confidential Information; or (d) rightfully obtained by such party from one or more third parties. Greenlight and Client understand and agree that, in the event of a breach of this Section 7, damages may not be an adequate remedy and each party shall be entitled to seek (in addition to any remedies permitted under the Agreement) injunctive relief to restrain any such breach, threatened or actual.
- Intellectual Property. With the exception of Client’s underlying and pre-existing intellectual property used to create the Deliverables (as defined below), Greenlight will own all right, title and interest in and to the Deliverables. The term “Deliverables” shall mean any deliverables created by Greenlight during the performance of the Services, whether published or unpublished. Greenlight hereby grants to Client and Client’s Affiliates (defined below) a perpetual, revocable, worldwide, royalty-free, non-exclusive, non-transferable, limited, right and license to use, execute or copy the Deliverables solely for Client’s internal business purposes and solely in connection with Client’s use of the Services. For purposes of these Terms and Conditions, the term “Affiliates” shall mean any entity that Controls, or is Controlled by, or is under common Control with Client, where “Control” means ownership, directly or indirectly, of fifty percent (50%) or more of the voting interest.
- Irreparable Harm. Client and Greenlight each agree that a breach of any provision in the Agreement may result in serious and irreparable injury to the non-breaching party. Client and Greenlight agree that among other remedies each of them may pursue upon the occurrence of any breach or threatened breach hereof, they each may seek and obtain, when appropriate, injunctive relief to prevent a breach or further breach of the Agreement. Nothing contained in this Section shall limit or waive any party’s right to seek damages for a breach of the Agreement.
- Information Not Warranted. All information provided by any person or entity other than Greenlight with respect to any Services or Products provided by Greenlight is not warranted by Greenlight to be accurate or complete. Such information is provided “as is” to Client, and Greenlight makes no representation or guarantee regarding its accuracy or completeness.
- Schedule and Delivery Dates. Any performance schedule and/or delivery dates specified in any SOW, WCO or Quote (or in any other document or correspondence) are estimates only unless expressly stated otherwise in a SOW, WCO or Quote signed on behalf of Greenlight and Client. Unless a SOW, WCO or Quote signed on behalf of Greenlight and Client expressly states a particular schedule or delivery date may not change, such schedules and dates shall not be considered binding and they may be affected by changes in project scope or complexity, the Client’s non-payment, the Client’s failure to sign a WCO, or other factors.
- Force Majeure. Neither party shall be responsible for delays or failures (including any delay or failure in providing any Services or Products) if such delay or failure arises out of causes beyond either party’s control. Such causes may include, but are not restricted to, acts of God or of the public enemy, terrorism, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight or trade embargoes, earthquakes, electrical outages, computer or communications failures, severe weather, and acts or omissions of subcontractors, vendors or other third parties.
- Client’s Security Obligations.
- Client is responsible for implementing the appropriate level of controls and security to prevent loss of Client Confidential Information and unauthorized access, acquisition, use, modification or disclosure of Client Confidential Information due to factors outside the control of Greenlight, including but not limited to user errors, Client disclosure of usernames and passwords to third parties, failures to implement reasonable security and access controls within Client’s physical environment and networks outside the SOW, Client modifications to security and access controls within Client’s physical environment and networks listed in the SOW, or Client’s refusal to take Greenlight’s recommended updates or changes to Client’s environment and networks. Client is also responsible for mitigating any damages as a result of factors outside the control of Greenlight, including but not limited to: maintaining local and remote backups of critical Client data; purchasing cyber liability and/or technology errors and omissions insurance policies at adequate limits and appropriate coverage, including but not limited to coverage for security or privacy breaches, damage or corruption to physical and digital assets, system failures, dependent system failures, cyber extortion and ransomware, fraud loss, phishing, other cyber-crimes, and any other reasonably applicable coverage.
- Greenlight makes available several security Products and Services, and Client may contact its Greenlight Account Manager for a sample schedule of Greenlight’s Products and Services. Client is responsible for the integrity, security, maintenance and appropriate protection of Client Confidential Information and Client Data by selecting, purchasing, and properly configuring the appropriate Greenlight Products and Services. Client is responsible for making an independent determination as to whether the Products and Services meet Client’s legal, regulatory, and contractual requirements. Client agrees that the Products and Services, as configured to the Client’s specifications, meet Client’s needs with respect to Client’s security obligations under applicable data protection laws.
- Client Representations and Warranties. Client shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this Agreement, including without limitation those related to privacy, electronic communications and anti-spam legislation. Client represents and warrants that (i) it is and will at all relevant times remain duly and effectively authorized to give the instructions set out in this Agreement with respect to the personally identifiable information (“PII”) of third parties; (ii) it has all necessary rights to provide the PII to Greenlight for performance of the responsibilities contemplated by this Agreement, including international transfers to Greenlight; (iii) it is responsible for ensuring that all necessary privacy notices are provided to end customers or consumers, that any necessary consents for Greenlight’s processing are obtained, and for ensuring that a record of such consents is maintained; and (iv) should such a consent be revoked by an end customer or consumer, Client is responsible for communicating the fact of such revocation to Greenlight. Greenlight will reasonably assist Client to respond to end customer or consumer requests to access, delete, correct, or download their PII in systems operated or managed by Greenlight, at Client’s expense.
- Limited Warranty and Remedies. Greenlight warrants to Client that any Services provided by Greenlight to Client will be performed by qualified personnel in a professional and workmanlike manner (this warranty is referred to herein as the “Limited Warranty”). Greenlight does not manufacture any products and it does not provide any warranties regarding any Products it may provide to Client. Client will receive any applicable manufacturer’s warranties regarding any Products provided by Greenlight to Client. Greenlight’s sole liability and Client’s sole remedy under this warranty shall be for Greenlight to reperform or correct any non-conforming Services to the extent due to errors on the part of Greenlight, provided Client notifies Greenlight of such non-conformance within thirty (30) days after the performance of Services (for any non- conforming Services). If an implied warranty or condition is created by Client’s state/jurisdiction and applicable law prohibits disclaimer of it, Client may also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE THIRTY (30) DAY PERIOD OF THIS LIMITED WARRANTY. AS TO ANY DEFECTS DISCOVERED AFTER THAT THIRTY (30) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to Client.
- Disclaimer of Warranties. The above Limited Warranty is the only express warranty made to Client regarding any Services provided by Greenlight and is provided in lieu of any other express warranties (if any) created by any documentation, packaging or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Greenlight provides all Services and Products AS IS AND WITH ALL FAULTS, and hereby disclaims all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Services and Products. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO ANY SERVICES OR PRODUCTS.
- Exclusion of Incidental, Consequential and Certain Other Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY OR DATA, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO ANY SERVICES OR PRODUCTS PROVIDED BY GREENLIGHT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THE AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF EITHER PARTY, AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability. NOTWITHSTANDING ANY DAMAGES EITHER PARTY MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF EITHER PARTY UNDER ANY PROVISION OF THE AGREEMENT AND EITHER PARTY’S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPERFORMANCE OR CORRECTION ELECTED BY GREENLIGHT PURSUANT TO SECTION 15 OF THESE TERMS AND CONDITIONS WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO GREENLIGHT DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE WHEN SUCH DAMAGE OCCURRED OR (U.S.)$100.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 15, 16 AND 17 ABOVE AND THIS SECTION 18) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE LIMITATIONS IN SECTIONS 17 AND 18 DO NOT APPLY TO ANY DAMAGES CAUSED BY ANY INTENTIONAL MISCONDUCT OF GREENLIGHT OR ANY OF ITS EMPLOYEES.
- Independent Contractor. Greenlight is an independent contractor of Client. Nothing herein shall be construed to make the parties joint ventures or partners or to create any relationship of principal and agent. No employment relationship is created by the Agreement. Neither party shall have authority to commit or bind the other party without such other party’s prior written consent.
- Non-Solicit. Client understands that Greenlight employees and contractors are assigned to Client to render temporary services and, absent an agreement to the contrary, are not assigned to become employed by Client. Client acknowledges the considerable expense incurred by Greenlight to advertise, recruit, evaluate, train and quality control its employees and contractors. Client will not, without prior written authorization by Greenlight, hire a Greenlight employee or contractor, or interfere with the contractual relationship between Greenlight and its employee/contractor. Should Client wish, within one (1) year following the termination of this Agreement—measured from the last extension thereof—to directly or indirectly employ any employee or contractor who has provided Client services through Greenlight, Client shall first pay Greenlight a fee in an amount equal to sixty percent (60%) of the annual compensation paid by Greenlight to such person or entity (with annual compensation to be either the annual salary for a salaried position or, for an hourly position, the estimated annual wages determined by multiplying the hourly rate by 2,080) per employee or contractor, which accurately reflects the reasonable value of Greenlight’s time and costs. CLIENT AGREES THAT IT FULLY UNDERSTANDS THIS COST CALCULATION AND, IF UNSURE, CLIENT WILL ASK GREENLIGHT TO EXPLAIN IT. The foregoing does not prohibit any public advertisements or general solicitations by Client that are not specifically directed to any of Greenlight’s employees or independent contractors.
- Transferability and Modification. Neither Client nor Greenlight may transfer, assign or delegate any rights, duties, interests or obligations under the Agreement or any SOW, WCO or Quote thereunder to any other person or entity. Notwithstanding the foregoing, a party may (without the other party’s prior written consent) assign the Agreement and all of its rights, duties, interests and obligations thereunder to any entity into which it merges or to which it sells all or substantially all of its assets; provided, however, that any party so assigning the Agreement will remain liable for any failure of its assignee to perform any of its obligations under the Agreement. Any attempted transfer, assignment or delegation in violation of the Agreement shall be considered void ab initio. Any amendment or modification to the Agreement must be made in a written document and must be signed by both Client and Greenlight; provided, however, that such modification may be executed in counterparts, each of which together shall be deemed to constitute one and the same entire document.
- Cumulative Remedies. Any and all remedies discussed herein shall be considered cumulative with one another and not exclusive with another, to the maximum extent allowed by law.
- Entire Agreement. The Agreement (including these Terms and Conditions and the Agreement’s exhibits) is the full and complete agreement between Greenlight and Client with respect to Greenlight providing any Services or delivering any Products to Client.
- Governing Law; Venue. The Agreement shall be governed by and construed in accordance with the internal laws of the State of California, regardless of any conflicts of law or choice of law principles of any jurisdiction. Any dispute arising under or related to the Agreement will be resolved exclusively in state or federal court in Orange County, California. Client and Greenlight hereby consent to such exclusive jurisdiction and venue and waive any objections thereto.
- Indemnification. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party, and its directors, officers, agents, employees and affiliates (collectively, the “Indemnified Party”), from and against any and all claims, losses, liability, damages, costs and expenses (including reasonable attorneys’ fees) of any nature whatsoever arising out of or related to (i) any acts or omissions by the Indemnifying Party; (ii) any product liability claims regarding any products offered or sold by the Indemnifying Party; (iii) breach of any representations or warranties by the Indemnifying Party; and (iv) the Indemnifying Party’s failure to fulfill its security obligations under the Agreement.
- Severability. In the event that any provision in the Agreement shall be held unenforceable for any reason, any court or other adjudicator shall reconstruct and interpret the balance of the Agreement without said unenforceable provision to make it enforceable to the greatest extent allowed by law.
- Legal Fees. In any action, proceeding or arbitration between Greenlight and Client arising under or related to the Agreement or any SOW, WCO or Quote thereunder, the prevailing party in such action, proceeding or arbitration, including any appeal therefrom, shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, not limited to reasonable attorneys’ fees (including in-house counsel) and reasonable fees of expert witnesses. Such fees shall include any fees incurred on appeal or in any bankruptcy proceeding related to the Agreement.
- Limited Liability. No officer, director, owner, agent or employee of either party shall have any personal liability or obligation of any kind arising under or related to the Agreement or any SOW, WCO or Quote thereunder.
- Interpretation. The Agreement shall be construed in accordance with its fair meaning, with no regard whatsoever to who drafted the Agreement. As used in the Agreement, unless the context expressly indicates otherwise, the word “or” is inclusive and means “and/or” and the word “including” (and any variation of that word) is inclusive and means “including without limitation” (or a phrase of equivalent meaning). Titles and headings of sections of the Agreement (including any exhibits, SOW’s, WCO’s or Quotes to the Agreement) are for convenience only and shall not affect the meaning or construction of any provision.
- Representations; Counterparts. Each person signing the Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to sign the Agreement and to bind such party with respect to all of its obligations hereunder. The Agreement and any SOW, WCO or Quote may be executed (by original, electronic or telecopied signature) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Signatures in any electronic format (including any signature obtained using Zomentum, PandaDoc, DocuSign or any other electronic signature service) are valid and enforceable as original signatures.
- Notices. All written notices required pursuant to the Agreement (including any notices required pursuant to any exhibits, SOW’s, WCO’s or Quotes to the Agreement) must be delivered in person or by courier or overnight delivery service, provided that the transmission method is scheduled to deliver within 48 hours, and shall be deemed given when delivered to the address specified for the applicable party on the signature page of the Agreement or such other address as may be specified in a written notice delivered in accordance with this Section 31. If a party’s address is not specified on the signature page of the Agreement or in a written notice provided by that party, that party’s address for notice purposes shall be the address discovered by the party giving notice by any of the following methods: (i) the address listed on that party’s website; (ii) the address listed for that party on the website for the office of the Secretary of State in the State where that party was formed; or (iii) the address listed in any correspondence (including any e-mails) received from that party.
- Survival. Following any termination of the Agreement: (i) Client will remain obligated to pay any amounts owed to Greenlight for any Services rendered or Products delivered prior to such termination; and (ii) the Sections 7 through 31 of these General Terms and Conditions will survive and remain enforceable.