This Master Services Agreement (“MSA”) is entered into as of the date of last signature (the “Effective Date”) by and between NAVEX Global, Inc., a Delaware corporation and wholly owned subsidiary of NAVEX Global Holding Company, having its principal place of business located at 6000 Meadows Road, Suite 200, Lake Oswego, Oregon 97035 (“NAVEX”) and the entity signing the Order Form into which this MSA is incorporated (“Client”). Any references to the “MSA” shall include the General Terms and Conditions below and any Order Form (as defined below). In consideration of the mutual covenants and conditions contained in this MSA and intending to be legally bound, the parties agree as follows:
GENERAL TERMS AND CONDITIONS
1.0 MSA Documents. This MSA contains the general terms and conditions (“General Terms and Conditions”) applicable to all Services (as defined below). Client’s execution of an Order Form (an ordering document setting forth the Service(s) ordered by Client) or Change Order (a simplified ordering document used for one-time non-recurring fees), collectively “Order Form” constitutes a binding commitment to purchase the items specified on such Order Form under the terms and conditions of this MSA and such Order Form. As used in this MSA, “Applicable Law” means any law, rule or regulation, applicable to such party.
2.0 Services. NAVEX shall provide the services (each a “Service” and collectively, “Services”) described in an Order Form to Client and/or any party that controls, is controlled by or, directly or indirectly, is under common ownership or control with Client (“Affiliate”). Each Order Form shall detail the material terms and conditions applicable to the Services to be provided pursuant to that Order Form. Unless otherwise stated in the Order Form, the terms and conditions of an Order Form shall take precedence if they conflict with the MSA.
2.1 Access. Subject to Client’s payment of all Fees (as defined below), NAVEX will provide access to the Services as contemplated by the scope of the applicable Order Form. NAVEX will be responsible for ensuring the security and confidentiality of account names and passwords residing within its systems and while being received and processed by the Services for the purpose of permitting access thereto, and Client is responsible for ensuring the security and confidentiality of account names and passwords held, issued or used by its licensed users and is further responsible for instructing licensed users on the confidentiality of account names and passwords. Client agrees to promptly notify NAVEX if account names or passwords are lost, stolen, or used in an unauthorized manner.
2.2 Ownership. Each party shall own all right, title, and interest in ideas, concepts, expertise, programs, systems, methodologies, data or other materials that it has acquired or developed prior to or outside the scope of this MSA. Client shall retain all right, title, and interest, including copyrights, trademarks and patent rights, in any and all Client Content (as defined below) and Client information provided under this MSA and any and all derivative works flowing from any of the foregoing (collectively, “Client Intellectual Property”). Any data collected, received, and processed by NAVEX as required by the Services, including PII (as defined below) (“Client Data”) will remain the exclusive property of Client. NAVEX shall own and retain all right, title and interest, including copyrights, trademarks and patent rights, in any and all Services provided under this MSA and any and all derivative works flowing from any of the foregoing (collectively, “NAVEX Intellectual Property”). Neither party will acquire any right, title, or interest in the intellectual property rights of the other party by virtue of its performance under this MSA.
2.3 License Rights, Restrictions and Requirements.
- i. NAVEX grants Client, for the Term (as defined below), a limited, non-exclusive, worldwide, non-transferable, royalty-free license to NAVEX Intellectual Property for the sole and limited purpose of furthering Client’s business operations that use NAVEX Intellectual Property, and not for the independent benefit of any third parties or for the sale, use or other such conveyance to any third party. Any NAVEX Intellectual Property is provided solely for the purpose of fulfilling the terms of this MSA and remains the sole and exclusive property of NAVEX.
- ii. Client grants NAVEX, for the Term, a limited, non-exclusive, worldwide, non-transferable, royalty-free license to reproduce, perform, display, create derivative works of (solely for formatting purposes) and otherwise use any and all text, graphics, data, or other materials (collectively, “Client Content”) provided by Client to NAVEX for the sole and limited purpose of delivering the Services to Client. Any Client Content is provided solely for the purpose of fulfilling the terms of this MSA and remains the sole and exclusive property of Client. Client will retain ownership to all of Client’s Confidential Information and Client Intellectual Property.
- iii. Except as otherwise expressly permitted under this MSA, Client agrees not to (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Services or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Services, product workbooks, or other technical documentation made available to Client by NAVEX that describes the operation and/or functionality of the Services, and proprietary documentation (or any portion thereof) (collectively, “Technical Documentation”); (c) create modifications to or derivative works of the Services or Technical Documentation (or any portion thereof including the Services); (d) reproduce the Services or any portion thereof or any Technical Documentation made available to Client; (e) use the Services in a manner not authorized under the Technical Documentation or in violation of any Applicable Law; or (f) use the Services, or permit them to be used, for purposes of product evaluation, benchmarking, or other comparative analysis intended for external publication without NAVEX’s prior written consent.
2.4 Hosting Infrastructure. NAVEX is responsible for the set-up, hosting and management of the Services, including obtaining and maintaining all computer hardware, software, communications systems, network and other infrastructure (“Hosting Infrastructure”) necessary to permit Client and Users to access and use the Services in accordance with this MSA and the Technical Documentation, except for the Services Client elects to host on Client’s systems. NAVEX will manage and install within the Hosting Infrastructure all updates and upgrades that NAVEX makes generally available to its customers for the Services. Client is responsible for obtaining and maintaining its own access to the Internet.
2.5 Disclaimer. Client agrees and acknowledges that it is fully responsible for its use of the Services. NAVEX expressly disclaims any liability as a result of Client’s use of the Services or Client’s actions or inactions with respect to any information derived therefrom, except where such liability first arose as a direct result of NAVEX’s (i) material breach of this MSA or (ii) grossly negligent act or omission in delivering the Services.
2.6 Support Services. After the Services are implemented, NAVEX will provide ongoing support to Client’s Administrators in accordance with the schedule detailed in the following webpage: https://www.navexglobal.com/ClientCareProblemSupport
2.7 Personal Information and Data. Client acknowledges and agrees that NAVEX will collect, process, use and/or store certain personally identifiable information or personal data (“PII”). NAVEX (i) has established and shall maintain appropriate technological and organizational security measures to protect against unauthorized access to any PII that is stored within the Hosting Infrastructure; (ii) shall not utilize PII for any purpose other than to provide Services; (iii) shall not disclose any PII to any person not authorized by Client (except as necessary to comply with Applicable Law); (iv) will act solely on the instructions of Client in respect of all PII, unless otherwise prohibited by Applicable Law; (v) will inform Client in a timely manner of any confirmed security breach regarding disclosure of PII, complaint concerning disclosure or other unauthorized use of PII. At all times during the Term, NAVEX shall comply with the U.S. Department of Commerce European Union and Swiss Safe Harbor Guidelines (collectively, the “Guidelines”) and Applicable Law. All NAVEX subcontractors with access to PII will be contractually required to comply with the Guidelines and Applicable Law. NAVEX shall be responsible for any non-compliance by such subcontractors.
3.0 Fees and Payment. NAVEX’s provision of the Services is conditioned upon Client’s payment, in accordance with the applicable agreed to fee schedule in an Order Form, entered into between the parties (collectively, “Fees”). Unless otherwise agreed to in writing by the parties, Client will pay to NAVEX all undisputed Fees owed within thirty (30) calendar days after the date of NAVEX’s invoice pertaining thereto or such other period as may be specified in the Order Form. Payments will be sent to the address included on the invoice. In the event that any undisputed Fees are more than thirty (30) calendar days past due, (i) Client will incur a late payment charge of the lesser of 1.5% per month or the highest lawful rate may be applied to any outstanding balances until paid and (ii) NAVEX will have the right, in addition to all other rights and remedies available to it, to suspend delivery of or access to the Services upon the expiration of ten (10) days written notice. All Fees exclude any applicable taxes.
4.0 Term and Termination. This MSA shall remain in effect until terminated as set forth herein or until the expiration of any renewal or extension (“Term”). The initial term for each Service purchased, and any renewal rights or extensions, will be as set forth in the applicable Order Form. Upon termination, all rights to access or use the Services shall terminate without further action or notification from NAVEX, and all Client Data shall be deleted within thirty (30) days unless otherwise agreed to under this MSA.
4.1 Termination. This MSA may be terminated (i) by either party if the other party materially breaches this MSA and does not cure the breach within thirty (30) calendar days after receiving written notice thereof from the non-breaching party (except for delinquent payments which are addressed in Section 3.0), (ii) as set forth in Section 5.7(c), (iii) by either party upon written notice thirty (30) days prior to the beginning of any renewal term and said termination shall take effect at the end of the then current, and applicable, Term, or (iv) in the event the other party becomes insolvent (generally unable to pay its debts as they become due) or the subject of a bankruptcy, conservatorship, receivership or similar proceeding, or makes a general assignment for the benefit of creditors. Upon termination of this MSA, all Order Forms will also terminate. Upon any termination of this MSA, without prejudice to any other rights or remedies which the parties may have, all rights licensed and obligations required thereunder shall immediately cease, except as otherwise provided. Each party may retain, subject to this MSA, copies of Confidential Information required for internal record keeping purposes and for compliance with Applicable Law.
5.0 Warranties and Disclaimer.
5.1 NAVEX Services Warranty. NAVEX represents and warrants (i) the Services, as delivered and when used in accordance with the then current Technical Documentation, will perform in all material respects as specified in such Technical Documentation during the applicable Term; (ii) all Services will be performed in a professional manner in accordance with industry standards; (iii) as of the Effective Date, there are no claims of infringement regarding patent, copyright, trademark or any other intellectual property rights having been asserted against NAVEX IP; and, (iv) NAVEX will not design its systems to include any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines,” or other computer software routines.
5.2 Mutual Warranties. Each Party represents and warrants the following:
- i. the execution, delivery and performance of the MSA has been and shall be duly authorized by the executing party;
- ii. the executing party’s performance of its obligations will not conflict with, result in a breach of or constitute a default under any other agreement to which that party is bound;
- iii. as of the Effective Date, no claims of infringement regarding copyright, trademark, patent or any other intellectual property rights have been asserted against Intellectual Property provided by one party to the other as may be required under this MSA; and
- iv. the executing party is in material compliance with all Applicable Laws with regard to its obligations under the MSA.
5.3 Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION AND THOSE EXPRESSLY SET FORTH IN AN ORDER FORM, ALL SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS AND NAVEX DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, DELIVERABLES, MARKS OR NAVEX’S PERFORMANCE UNDER THE MSA, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. NAVEX EXPRESSLY DOES NOT WARRANT THAT THE SERVICES MEET THE SPECIFIC REQUIREMENTS OF ANY FEDERAL, PROVINCIAL, STATE OR LOCAL LAWS, REGULATIONS OR GUIDELINES.
5.4 Disclaimer of Legal Services. NAVEX is not engaged in the practice of law. In the provision of Services, certain issues may arise that are quasi-legal in nature. Any statements or assistance provided by NAVEX in these matters should be interpreted as opinions or advice concerning business issues to be considered in connection with the Services. Client represents and warrants it is not relying upon NAVEX to provide legal services.
5.5 Infringement Remedies. Should Client’s use of the Services, or NAVEX’s use of Client Content, be determined by a court of competent jurisdiction to infringe or have infringed the intellectual property rights of a third party or if, in the providing party’s (Client, in the case of Client Content and NAVEX, in the case of Services) sole judgment, such use is likely to infringe or result in the infringement of a third party’s intellectual property rights, the providing party may, at its option and expense (i) procure for the other party the right to continue using such Services or Client Content; (ii) replace or modify the Services or Client Content to make use non-infringing, provided such modifications do not materially impair the delivery of the Services; or (iii) where NAVEX is the providing party, cease to provide the Services and refund to Client, on a pro rata basis, any prepaid Fees for Services not rendered. Subject to the providing party also meeting its express indemnification obligations under this MSA, the providing party’s satisfactory performance of any one or all of the remedies set forth in the preceding sentence shall be the other party’s sole and exclusive remedy for breach of the infringement warranty or for any damages incurred from early termination of the applicable Order Form due to a third-party infringement claim. Notwithstanding the foregoing, neither party will have any obligation under this Section or otherwise with respect to any infringement claim based upon any Exclusions (as defined below).
5.6 Remedies for Breach of Service Warranties. In the event of any breach of Section 5.1(i), NAVEX shall diligently remedy any deficiencies that cause the Services to not materially perform as specified in such Technical Documentation during the applicable Term. This shall be Client’s sole remedy for any uncured breach of Section 5.1(i). However, NAVEX shall not be obligated to correct, cure or otherwise remedy any error or defect in the Services resulting from (i) components or content (including in combination with the Services) not provided by NAVEX; (ii) unauthorized use or use of the Services other than in accordance with the Technical Documentation and this MSA; or (iii) viruses, malicious software or programs or other disruptive programs or applications introduced by Client or its agents or Users or introduced as a result of any of Client’s uses of the Services (collectively, “Exclusions”).
6.0 Indemnification. A party seeking indemnification (“Indemnified Party”) must promptly provide the other party (“Indemnifying Party”) with written notice of any claim, promptly tender the control of the defense and settlement of any such claim to the Indemnifying Party (at the Indemnifying Party’s expense and with Indemnifying Party’s choice of counsel), provided however that the failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that such Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall cooperate fully with the Indemnifying Party (at the Indemnifying Party’s request and expense) in defending or settling such claim, including but not limited to providing any information or materials necessary for the Indemnifying Party to perform the foregoing. The Indemnifying Party will not enter into any settlement or compromise of any such claim without the Indemnified Party’s prior consent, if the settlement would require admission of fault or payment by the Indemnified Party.
6.1 By NAVEX. NAVEX will indemnify and defend Client and its officers, directors, employees, and agents against any and all allegations, claims, demands, costs and expenses (including reasonable attorneys’ fees and disbursements), liability, and costs from suits, actions or proceedings threatened, made or brought by any third party (“Losses”) incurred by Client to the extent in relation to or arising from, (i) a claim that the Services infringe or misappropriate any third party intellectual property rights, or (ii) NAVEX’s breach of Section 5.2.
6.2 By Client. Client will indemnify and defend NAVEX and its officers, directors, employees, and agents against any and all Losses incurred by NAVEX to the extent in relation to or arising from (i) a claim that the Client Content infringes or misappropriates any third party intellectual property rights, (ii) Client’s breach of Section 5.2, (iii) from all sales, use, value added or other taxes of any nature (other than taxes on NAVEX’s net income) for which Client is liable, or (iv) Client’s action or inaction related to Client's use of the Services, provided that Client's use is the cause of the third party claim.
7.0 Confidential Information.
7.1 Definitions. “Confidential Information” means any information disclosed at any time by either party, its directors, officers, employees, and agents (collectively, the “Representatives”), to the other party or its Representatives in anticipation of or during parties' relationship, either directly or indirectly, in writing, orally or by inspection of tangible objects which pertains to such party’s business, including, without limitation, information concerning technical, marketing, planned functionality, market strategies, financial, employee, planning, product roadmaps, service or product purchase or performance agreements and documentation, performance results, pricing, and other confidential or proprietary information or information a reasonable person would understand to be confidential or proprietary. Confidential Information of either party will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party without a breach of any third party’s obligations of confidentiality at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
7.2 Disclosure of Confidential Information. Both NAVEX and Client shall (i) hold all Confidential Information in confidence and use it only as permitted in connection with the Services provided under this MSA; (ii) use the same care to prevent unauthorized disclosure of the disclosing party’s Confidential Information as the receiving party uses with respect to its own Confidential Information of a similar nature and shall not, in any case, be less than the care a reasonable business person would use under similar circumstances; (iii) to the extent required by a court order or law, disclose only the Confidential Information required to comply with such court order or law and in conjunction with fulfilling obligations under Section 7.4; and (iv) only disclose the Confidential Information to its Representatives who have a need to know such information in order to perform their job, have been informed of the confidential nature of such information and have agreed to, and are bound by, no less restrictive confidentiality obligations than those in this MSA. Each party shall be liable for any breach of this MSA by any Representative. Neither party shall disclose Confidential Information to third parties without the other party's prior written consent.
7.3 Injunctive Relief. Each party acknowledges that a party’s actual or threatened breach of its confidentiality obligations under Section 7, would likely cause irreparable harm to the non-breaching party that could not be fully remedied by monetary damages. Each party therefore agrees the non-breaching party may seek such injunctive relief or other equitable relief as may be necessary or appropriate to prevent such actual or threatened breach without the necessity of proving actual damages. Each party hereby waives the requirement for the posting of a bond in the event of such actual or threatened breach.
7.4 Legal Process. In the event either party receives a subpoena, request for production of documents, court order or requirement of a governmental agency to disclose any Confidential Information (“Legal Process”), the recipient thereof shall, if permitted by law, give prompt written notice to the other party so the other party may move for a protective order or other relief. In the event either party is required to respond to or support such Legal Process involving the other party (but not the parties adverse to one another), the responding party shall be entitled to recover from the other party all reasonable costs, fees and expenses incurred by the responding party, including reasonable time expended by internal resources and reasonable attorneys’ fees.
8.0 LIABILITY LIMITATIONS. THE FOLLOWING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO (i) BREACHES OF CONFIDENTIALITY OBLIGATIONS, (ii) VIOLATIONS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (iii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR (IV) PAYMENT OF FEES.
8.1 EXCEPT AS PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, 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; AND
8.2 EXCEPT AS PERMITTED BY LAW, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER, IN CONNECTION WITH THIS MSA, SHALL NOT EXCEED THE AGGREGATE CONTRACT VALUE FOR THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
9.0 Governing Law. Any dispute between the parties related to the MSA will be governed by the substantive and procedural rules of Delaware, without regard to conflict of law principles. The parties agree to submit to the exclusive jurisdiction of, and venue in, the state and federal courts of Multnomah County, Oregon and each party waives any claims it may have for forum non conveniens. The parties agree the Uniform Computer Information Transactions Act (UCITA) shall not apply to this MSA.
10.0 General Provisions.
10.1 Publicity. Client may use NAVEX’s name in press releases and other communications pertaining to Client’s agreement to use NAVEX’s products and services. With prior written approval (which may occur via email), NAVEX may use Client’s name and trademarks (including use of logos): (i) in NAVEX’s customer lists for marketing or promotional purposes, (ii) in press releases and other communications pertaining to Client’s agreement to use NAVEX’s products and services and (iii) on NAVEX’s website and other sales and marketing media including collateral, emails, tradeshows and signs.
10.2 Insurance. NAVEX shall, at its own cost and expense, acquire and continuously maintain insurance coverages detailed at the following website during the Term of the MSA: https://www.navexglobal.com/Insurance
10.3 Third Party Beneficiaries. Nothing in the MSA shall be construed to give any person or entity other than the parties hereto any legal or equitable claim, right or remedy; rather, this MSA is intended to be for the sole and exclusive benefit of the parties, unless otherwise prohibited by law.
10.4 Assignment. The terms of this MSA shall be binding on the parties and its successors. Neither party will assign, transfer or delegate its rights or obligations under this MSA (in whole or in part) without the other party’s prior written consent except (i) to an Affiliate or (ii) 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.
10.5 Notice. All notices, consents and approvals under this MSA must be delivered in writing by courier, by facsimile, or by certified or registered mail (postage prepaid and return receipt requested), to the other party at the address set forth on the Order Form and are deemed delivered when received.
10.6 No Agency; Compliance with Law. (i) This MSA shall not be construed to create a joint venture or partnership between the parties. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose, nor shall either party have any right, power or authority to create any obligation or responsibility on behalf of the other. Each party shall be responsible for compliance with all Applicable Law, if any, related to the performance of its obligations under this MSA.
(ii) NAVEX’s products and Services are subject to US sanctions laws and may not be sold or licensed to any party listed on the Specially Designated Nationals List maintained by the U.S. Department of the Treasury ("Restricted Party") or in US sanctioned countries (currently Cuba, Iran, North Korea, Sudan, and Syria) (The most up-to-date lists can be found at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). Client agrees not to use, transfer, or provide access to NAVEX’s products or Services (i) to any Restricted Party or (ii) in (or for the benefit of individuals or entities from) such US sanctioned countries. Client confirms that it is not directly or indirectly owned by, controlled by, owning or controlling or named as a Restricted Party. NAVEX and its Affiliates may not do business with a Restricted Party under US law (The most up-to-date lists can be found at https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx and https://www.bis.doc.gov/index.php/the-denied-persons-list). Any breach of this Section is a material breach of these General Terms and Conditions and any applicable Order Form for which no cure period shall apply.
(iii) Client represents and warrants that its use of NAVEX’s products and Services will in all respects comply with current US export controls regulations and requirements, including but not limited to, those promulgated by U.S Departments of State, Commerce, Homeland Security, Treasury and Defense. Any breach of this Section is a material breach of these General Terms and Conditions and any applicable Order Form for which no cure period shall apply.
10.7 Force Majeure. Neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under this MSA if, and to the extent, that such failure or delay is caused by events beyond its reasonable control, including, but not limited to, acts of the public enemy or a governmental body in its sovereign or contractual capacity, war, fire, floods, unusually severe weather, outside electrical failure, the limitations or failures of third-party internet service providers and/or telecommunication providers, the performance or failures of internet service providers or acts of terrorism, including cyber-attacks on NAVEX’s computer systems or those of third parties, including without limitation, internet service providers and telecommunication providers. If so affected, the affected party shall use commercially reasonable efforts to avoid or remove such causes of non-performance or delay, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed or otherwise resolved.
10.8 Waiver. No waiver or delay in enforcement of any breach of any provision of this MSA 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.
10.9 Survival. The terms and conditions of this MSA which by their nature require performance by either party after the termination or expiration of the MSA, including, but not limited to, limitations of liability, confidentiality obligations, exclusions of damages, indemnification obligations, governing law, Fees owed prior to the date of termination, and any other provision or partial provision which by their nature would reasonably extend beyond the termination of the MSA shall be and remain enforceable after such termination or expiration of the MSA for any reason whatsoever.
10.10 Severability. In the event that any provision of this MSA 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, (i) 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, and (ii) the remaining terms, provisions, covenants and restrictions of this MSA shall remain in full force and effect.
10.11 Audit. During regular business hours but no more frequently than once a year, Client may, at its sole expense, perform a confidential audit of NAVEX’s technical operations as they pertain to the Services provided under this MSA. Such audits shall be conducted on a mutually agreed upon date which shall be no sooner than thirty (30) calendar days after Client’s written request for such audit. Such audits shall be limited to technical operations as they pertain to the Services and shall not exceed a cumulative eight (8) hours at NAVEX’s facilities to allow such audit. If the audit shall exceed such eight (8) hour period, Client shall be responsible for payment of professional services fees to NAVEX at the then current hourly rate for professional services. If the audit is to be performed by a third party on behalf of Client, such third party shall (i) not be a direct or indirect competitor of NAVEX and (ii) execute a confidentiality and non-disclosure agreement as presented by and for the benefit of NAVEX. Client shall provide NAVEX a summary of the findings from each report prepared in connection with any such audit and discuss results, including any remediation plans. If audit results find NAVEX is not in substantial compliance with the requirements of this MSA, then Client shall be entitled, at NAVEX’s expense, to perform up to one (1) additional such audit in that year in accordance with the procedure set forth in this Section. NAVEX agrees to work with Client to identify reasonable remediation actions and to promptly take action at NAVEX’s expense to correct those matters or items mutually agreed upon by NAVEX and Client that are identified in any such audit that require correction.
10.12 Entire Agreement. This MSA constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements, proposals, representations or warranties, written or oral, concerning the subject matter of the MSA, including any prior nondisclosure or confidentiality agreement which shall be replaced by those terms and conditions set forth in Section 7.0 (Confidential Information) unless otherwise expressly agreed to in writing by the parties. The MSA may be modified or amended only in writing signed by a duly authorized representative of each party; no other act, usage or custom shall be deemed to amend or modify the MSA. It is expressly agreed that the terms of the MSA shall supersede the terms in any Client purchase order and the terms included in any such purchase order or other Client policy shall not (i) apply to the Services ordered, or (ii) in any way modify, revise, supplement, or otherwise affect the terms and conditions in this MSA. If Client requires processing of payments through a third party payment vendor, it is understood and agreed that use of such third party payment vendor is solely for the convenience of Client and such documentation associated with payment submission shall not in any way modify, add to, or delete any of the terms and conditions of the MSA. Any costs associated with the use of such third party payment vendor shall be borne exclusively by Client.
10.13 Section Headings. The Section headings are for reference purposes only and shall not in any way affect the meaning or interpretation of the General Terms and Conditions.
10.14 Counterparts. The parties expressly agree that their signatures on the Order Form constitute assent to the terms of this MSA. An exchange of scanned and emailed executed copies or electronic signatures on the Order Form is acceptable. In the event of such an exchange, the Order Form and the incorporated terms of this MSA shall become binding and any scanned and emailed signed copies or electronic signatures shall constitute admissible evidence of the existence of the Order Form and this MSA. This MSA has been entered into by the duly authorized representatives of each of the parties and is entered into as of the Order Form Effective Date.
10.15 Updates. NAVEX may from time to time make updates to the terms incorporated into and contained in this MSA; provided, however, any existing MSA shall remain subject to the terms that have been incorporated into or contained in this MSA as of the Effective Date of this MSA until the expiration of the Term.
MASTER SERVICES AGREEMENT V.54