Master Services Agreement
Terms governing the use of Oxrow.ai's services.
1. Introduction
This Master Services Agreement (the "MSA"), including any applicable Work Order(s) referencing this MSA (collectively, the "Agreement") is between you ("Client") and Oxrow.ai, Inc. ("Oxrow"). In the event of a conflict between this MSA and a Work Order, the terms of the Work Order shall govern. Except when defined in the applicable Work Order, capitalized terms are defined in the context in which they are used.
2. Services; License
a. Change Requests
Either party may request a change to a Work Order via written or oral notice to the other party ("Change Request") setting forth the requested modifications and the reason for such request. The parties shall promptly discuss the necessity, desirability and/or acceptability of the Change Request. Any agreement to change the fees and/or scope of the Services shall be reflected in writing via a new Work Order, an amendment to an existing Work Order, a mutually agreed upon service ticket, or mutual signature of the proposed Change Request.
b. Software License
Oxrow grants Client a limited, personal, nonexclusive, nontransferable, and non-assignable license (the "License") to use Oxrow Software, a cloud-based data aggregation service accessed via web-browser (the "Software"), solely for Client's use and only in connection with Client's business as identified in the Work Order. Use of the Software outside of Client's business, or by any users who are not Client's employees or independent contractors working for Client, requires specific written permission from Oxrow. Client agrees that each of its end users are bound to the Agreement and that Client shall be fully responsible for any acts or omissions of each such end user.
c. Software Ownership and Third-Party Integrations
As between Client and Oxrow, all patents, copyrights, trademarks, trade secrets and other intellectual property and proprietary rights in or related to the Software are and will remain the exclusive property of Oxrow. Client will not take any action that jeopardizes Oxrow' proprietary rights. Client shall not, and shall not permit any third party to, translate, reverse engineer, decompile, recompile, update, or modify all or any part of the Software or merge the Software into any other Software through current or future available technologies. Oxrow will own all rights in any copy, translation, modification, adaptation, or derivation of the Software, including any improvement or development thereof.
Client's use of the Software may require third-party data sources or data connectors to be integrated with the Software. Client may use such third-party data sources and connectors, subject to (i) Oxrow's ability to integrate with such third-party data sources and connectors, (ii) mutual consent between Client and Oxrow to a fee schedule that accounts for additional third-party data sources and connectors (with email sufficing), and (iii) Client must agree to the terms of those third-party data sources and connectors.
d. Support
Subject to the Agreement and Oxrow' general availability and discretion, Oxrow shall provide to Client the specific services ("Services") specified in a Work Order. Oxrow will exercise reasonable commercial efforts to provide user support. Client understands that successful performance and completion of the Services is contingent on substantial and active engagement by Client. To assist Oxrow in performing and completing the Services, Client agrees to promptly respond to requests for feedback from Oxrow and otherwise make available to Oxrow such assistance as Oxrow may require, which may include access to Client personnel, data, systems, and materials in Client's control. Oxrow may engage subcontractors or otherwise acquire rights as may be necessary in its judgment to perform and complete the Services.
3. Payment for Services
a. Fees
The fees for any and all Services shall be set forth in the applicable Work Order(s). Oxrow shall invoice Client for the fee and any applicable fees for custom work. Payment is due within thirty (30) days' from the date of invoice unless stated otherwise in the applicable Work Order(s). Should any undisputed invoice become overdue by more than thirty (30) days, Oxrow may (i) suspend the Services, and/or (ii) charge interest at a rate of 1% per month from the original invoice due date until the overdue balance is settled. Any taxes arising out of this Agreement other than those on Oxrow' net income will be Client's responsibility.
b. Expenses
Client shall reimburse Oxrow for all reasonable out-of-pocket expenses incurred by Oxrow and its authorized agents in connection with its performance of Services. Oxrow will provide Client with reasonably detailed invoices for such expenses on a monthly basis and Client agrees to pay the total amount shown as due on each invoice within 30-days after receipt.
4. Term & Termination
a. Term
Unless stated otherwise in the Work Order, the Initial Term of this Agreement will be for one year from the Execution Date of this Agreement and will automatically renew for one-year periods (each, a "Renewal Term" and collectively with the Initial Term, the "Term") unless terminated by either party in accordance with this Agreement.
b. Event of Default
This Agreement may be terminated upon written notice of an Event of Default to the party in default by the non-defaulting party. For purposes of this Agreement, an Event of Default is deemed to mean: (i) the failure of either party to perform any material obligation which it is required to perform under this Agreement, if such failure has not been corrected within thirty (30) days following receipt of written notice of default given by the non-defaulting party; or (ii) any act or event whereby either party is or becomes insolvent, party to any bankruptcy, receivership or similar proceeding not dismissed within thirty (30) days, or makes a general assignment for the benefit of creditors.
c. Termination for Convenience
Client or Oxrow may terminate this agreement by giving sixty (60) days' written notice prior to the start of the Renewal Period of its intent to terminate the Agreement. On termination of this Agreement for any reason, the Client will promptly delete the Software or return the Software to Oxrow, at Oxrow' instruction.
5. Warranty
a. As-Is Basis
THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS SET FORTH IN THE AGREEMENT, OXROW MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY REGARDING MERCHANTABILITY OR THE FITNESS OF THE SOFTWARE FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL BE SUITABLE OR APPROPRIATE FOR THE SPECIFIC REQUIREMENTS OF THE CLIENT. OXROW MAKES NO WARRANTY AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH OXROW'S WEBSITE OR SOFTWARE.
b. Oxrow Warranty
Oxrow warrants, subject to any express limitations set forth in this Agreement, that it has the full right to convey the rights set forth in the Agreement to Client.
c. Client Warranty
Client warrants that it has the full rights necessary to enter into this Agreement and that it will only use the Software for the Permitted Use.
6. Remedies & Limitation of Liability
a. Remedies for Breach
In the event of any material breach by Client of any of the terms of this Agreement, Oxrow shall be entitled to any of the following remedies: (a) terminate, in whole or in part, this Agreement; and/or (b) seek to recover damages from Client; and/or (c) if applicable, seek equitable relief, including without limitation injunctive relief. If Oxrow terminates this Agreement because of any breach by Client, then Oxrow shall be entitled to all fees earned or due through the expiration of the current term of this Agreement.
b. Defective Software
In the event that the Software proves defective, Client's sole remedy under this Agreement, and Oxrow' sole obligation, shall be, in Oxrow' discretion, to either replace the Software or to refund to Client the price paid by Client to Oxrow for the Software under this Agreement from the point in time the software was identified as being defective.
c. Limitation of Liability
OXROW SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO THE MARKETING, DELIVERY, OR CLIENT'S USE OR MISUSE OF THE SOFTWARE OR THIS AGREEMENT, EVEN IF OXROW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, OXROW'S AGGREGATE LIABILITY FOR ANY CLAIMS BROUGHT BY CLIENT ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY OXROW FROM CLIENT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE CLAIM.
7. Indemnification
Client agrees to indemnify and hold harmless Oxrow, and its affiliates, officers, directors and employees, from any losses, liabilities, penalties, demands, or claims ("Claims") (including the costs, expenses, and reasonable attorney's fees on account thereof) arising from or relating to Client's marketing, delivery, or use or misuse of the Software, including without limitation any Claims that may be made by any third party, and any Claims relating to or arising from Client's violation of this Agreement. The foregoing indemnity shall be in addition to any other rights or remedies set forth in this Agreement.
8. Data
a. Client Data
"Client Data" is defined as all non-public proprietary or confidential data provided by Client under this Agreement. For avoidance of doubt, Client retains all rights of ownership to Client Data.
b. Data Storage
Oxrow will exercise reasonable commercial efforts to maintain Client Data for the duration of the License Term. Oxrow relies on third-party cloud services for data storage (including but not limited to Microsoft Azure cloud, with applicable Data Protection terms available upon request); as such, Oxrow cannot guarantee that Client Data will be stored error-free or will remain available through Oxrow' Software and services.
c. Aggregated Data License
Client grants to Oxrow a non-exclusive, royalty-free, worldwide, irrevocable license to use aggregated and anonymized or pseudonymized Client Data for any purpose, including, without limitation, for research and educational purposes, benchmarking and reports, and for purposes of operating, improving, and supporting Oxrow' Software and services; provided, however, that Oxrow agrees that it will not use such non-identifiable Client Data in a manner adverse to the purpose of this Agreement. Any feedback or use by Oxrow of such non-identifiable Client Data that results in Oxrow' development of documentation or improvements to Oxrow' Software and services shall be deemed intellectual property of Oxrow.
d. AI and Client Data
Client grants Oxrow the right to use Client Data, including Confidential Information (defined below), in Oxrow's artificial intelligence ("AI") systems and models for the purposes of (i) providing and improving the Services to Client, and (ii) developing and enhancing Oxrow's internal AI capabilities and analytics tools. Notwithstanding the foregoing, Oxrow shall not use any Sensitive Information (defined below) to train, develop, or improve any third-party AI models or systems.
For purposes of this provision, "Sensitive Information" means Client Data that contains (a) government-issued identification numbers, (b) protected health information under HIPAA, (c) financial account or payment card information, or (d) any data that Client specifically designates in writing as "Sensitive Information." Oxrow may de-identify or aggregate Sensitive Information such that it cannot reasonably be linked to Client or any individual, and use such de-identified or aggregated data for any lawful purpose, including training third-party AI models.
e. Security Measures
Oxrow will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Client Data. Client may choose to enable integrations or exchange Client Data with third-party platforms; Client's use of a third-party platform is governed by its agreement with the relevant provider, and Oxrow is not responsible for third-party platforms or their use of Client Data.
f. Data Transfer
Client retains the option to receive a transfer of data aggregated by the Software, in format reasonably selected by Oxrow, for up to thirty (30) days post-termination.
9. Confidentiality
Each party may have access to information (in any form) that relates to the other party's past, present, and future activities, including research, development, business activities, products, services, processes, and technical knowledge, which is identified by the disclosing party as confidential or reasonably understood to be confidential ("Confidential Information"). Confidential Information may only be used by the receiving party consistent with the rights and obligations of this Agreement.
Confidential Information includes Oxrow' Software and any related documentation made available to Client, as well as Client's non-public data (subject to Section 8). The receiving party agrees to protect the Confidential Information of the disclosing party in the same manner that it protects its own similar confidential information, but in no event using less than a reasonable standard of care.
Access to the Confidential Information will be restricted to Oxrow and Client personnel (including such personnel employed by their affiliates) and subcontractors with a need to use such Confidential Information pursuant to the parties' rights and obligations under this Agreement, provided such parties are bound by substantially similar obligations of confidentiality and are not identified in writing as a competitor. Oxrow may retain and use Confidential Information relevant to its business purposes (including, without limitation, to provide or enhance its services) so long as its use of such Confidential Information is in an aggregated and anonymized or pseudonymized manner.
Nothing in this Agreement will prohibit or limit either party's use of Confidential Information (i) previously known to it without an obligation not to disclose such information, (ii) independently developed by or for it without use of 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, or (iv) which is or becomes publicly available through no breach of this Agreement.
10. Miscellaneous
a. Entire Agreement
This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
b. Modification of the MSA
Oxrow may modify the MSA from time to time by providing written notice of material changes or by posting the modified Agreement on its website with the effective date of the modifications. The parties may mutually agree to modify a Work Order per Section 2(a) of the MSA.
c. Publicity
Either party may cite the other party in public marketing materials and conversations as a client or vendor of the other party, as the case may be. Each party agrees to cease such public use of the other party's name if so requested in writing by the other party.
d. Dispute Resolution
The parties will make good faith efforts to resolve internally within thirty (30) days any dispute, including over an invoice, relating to this Agreement by escalating it to higher levels of management. If Client withholds an amount more than sixty days, Oxrow will be permitted to suspend the license grant and the performance of any services until such time as the matter in dispute is resolved.
e. Governing Law and Venue
The parties submit to the exclusive jurisdiction of the state and federal courts located in Yakima County, Washington, for any action arising from or relating to this Agreement, any arbitration proceeding and/or award arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of Washington.
f. Assignability
The Client may not transfer, assign or sublicense any of the rights or obligations granted under this Agreement to any other person or legal entity without Oxrow' prior written consent. Any assignment without Oxrow' consent is void. This Agreement applies to and is binding upon the Client's successors and assigns.
g. Relationship of the Parties
This Agreement does not create an express or implied relationship in agency or partnership between the Oxrow and Client.
h. Severability and Waiver
If any provision of this Agreement is held to be invalid, void, or unenforceable, it is the parties' intent that such provision be reduced in scope only to the extent deemed necessary to render the provision reasonable and enforceable, and the remainder of this Agreement will in no way be affected, impaired, or invalidated as a result. No waiver of breach or failure to exercise any right under this Agreement shall be construed to be a waiver of other rights.
i. Survival
The Parties recognize and agree that their representation and obligations regarding confidentiality, indemnification, and limitation of liability under this Agreement survive the cancellation, termination, or expiration of this Agreement.
j. Insurance
During the Term, Oxrow will maintain insurance coverage reasonably appropriate for the scope of Services provided in the applicable Work Order.
k. Attorneys' Fees
In any action to enforce this Agreement, the prevailing party shall be entitled to its reasonable attorneys' fees and costs.
l. Force Majeure
Neither party shall be responsible for any failure to perform its obligations under this Agreement (other than payment obligations) caused by an event beyond its reasonable control (a "Force Majeure Event"). Any delays resulting from Client's failure to perform or fulfill its responsibilities (such as not having systems ready or failing to provide necessary data) will not be a Force Majeure Event or impact the payment schedule.
m. No Third Party Beneficiary
This Agreement is entered into solely for the benefit of Oxrow and Client. No third party shall have the right to make any claim or assert any right under it, and no third party shall be deemed a beneficiary of this Agreement.