In addition to other terms defined elsewhere, the following terms have the following meanings:
“Documentation” means the supporting documentation and materials embedded in the Service.
“Order” means the document executed by the parties under this Agreement by which Client procures Services. Each Order will set forth the applicable Term (as defined on the applicable Order) and the Service Fees (as defined in Section 4 below). Each Order shall constitute a separate and independent contractual obligation between the parties.
“Services” means Oversight’s hosted “Insights On Demand” application service provided to Client under this Agreement.
2.1. Right to Use the Service. Subject to payment of the applicable Service Fees, Oversight will provide the Services described in the applicable Order. Oversight grants Client, and Client accepts from Oversight, a non-exclusive, non-transferable, right to use the Services during the Term. The Services will be used subject to limitations set forth on the applicable Order. Client is responsible for the use of the Services by any person to whom Client has given access to the Services, and any person who gains access to the Data (as defined in Section 7.2 below) via the acts or omissions of Client.
2.2. Restrictions. Client will use the Services for its own business use only (which does not include use as an application service provider or any other renting, or leasing). Client will not, directly or indirectly, without the prior written consent of Oversight: (a) sublicense, transfer, or otherwise assign its rights in the Service or the Documentation to any third-party nor allow any third-party to access or use the Service or the Documentation; (b) modify the software elements of the Service or the Deliverables; (c) create derivative works of the Service or the Documentation or any components thereof; (d) translate, reverse engineer, de-compile, or disassemble the software elements of the Service for any other reason; or (e) copy the software elements of the Service or the Documentation, in whole or in part, except as permitted by this Agreement. The Service may only be used for lawful purposes; transmission of any material which is threatening, obscene, libelous, defamatory, discriminatory, or is otherwise offensive or illegal will constitute a material breach of this Agreement. Client must retain all legends relating to the copyright, trademarks, patents, or confidentiality on all copies of the Documentation or any print of a screen display from the Service.
2.3. Hosting Services; Security.
2.3.1. During the Term, Oversight will provide the Services (i) as described in the Insights On Demand Hosting Guide attached to this Agreement as Exhibit 1; and (ii) subject to the Data Management and Security Policy attached to this Agreement as Exhibit 2.
2.3.2. Oversight has implemented and maintains a comprehensive Disaster Recovery Plan (“DRP”). The DRP addresses the policies and procedures in the event of a disaster event which affects the ability of Oversight to provide the Service in accordance with this Agreement. A “Disaster” is defined as the loss of the primary production facility for an extended period of time. Non-Disaster events that impact the Service are handled by industry standard practices including backups, snapshots, virtualization, and other appropriate technologies. In the event of a Disaster or other event affecting Client’s access to the Service, Oversight will provide Client with an email notice verifying activation of the Oversight DRP procedures as necessary or addressing the impact of a non-Disaster on the Service and the plan for reestablishing Service. Following a Disaster, Oversight will use all reasonable efforts to reinstate access to the Service within five (5) business days.
3. TERM AND TERMINATION.
3.1. Term. This Agreement will commence on the Effective Date and continue in full force and effect until the last to expire of the Order(s).Unless otherwise specified in an Order, the initial term of each Order for Services is one year from the date of execution of the applicable Order (the “Initial Term”). After expiration of the Initial Term, the term will automatically renew for successive one year periods (each, a “Renewal Term”) unless either party provides written notice of non-renewal at least 30 days prior to the end of the then-current term. As used in this Agreement, “Term” means, collectively, the Initial Term and each Renewal Term.
3.2. Termination for Cause. This Agreement or any Order may be terminated by a party if the other party commits any material breach of this Agreement or any Order which is not remedied within thirty (30) days of notice of such breach to the breaching party.
3.3. Termination By Oversight. Oversight may discontinue providing the Service effective at the expiration of the then current Term upon ninety (90) days prior written notice.
3.4. Effect of Termination. Upon the earlier of termination of an Order or this Agreement: (a) except as expressly provided in this Section 3, all rights and obligations of the parties hereunder will immediately terminate; (b) each party will return or destroy all copies of the Confidential Information of the other party in its possession or under its control; (c) Oversight shall cease providing the Services; and (d) each party’s obligation to pay all amounts due to the other party accrued prior to termination (or, where applicable, after termination) will not be affected. Except as otherwise set forth herein, the Service Fees are non-refundable. Oversight will retain Data for up to sixty (60) days after termination of this Agreement (the “Data Retention Period”). During the Data Retention Period, Client may download a copy of the Data at no additional charge. Following the earlier of (i) expiration of the Data Retention Period, (ii) the date upon which Client retrieves Data, or (iii) Client confirms it will not download its Data, Oversight may delete the Data from any systems on which Data is present without further notice to Client.
3.5. Survival. The provisions of this Agreement, which by their nature survive expiration or termination of this Agreement, shall survive.
4. PAYMENT TERMS; TAXES.
4.1. Fees. All Service fees for the scope of Services set forth in the applicable Order (the “Service Fees”) are billed annually in advance in U.S. Dollars net of any foreign, federal, state, or local taxes, including without limitation, sales taxes, use taxes, VAT, excise taxes, duties, and import taxes (collectively, “Taxes”). Following the Initial Term indicated in the Order, Oversight may increase the Service Fees once each year and Oversight will notify Client of any such increase at least 60 days prior to the commencement of any Renewal Term.
4.2. Payment Terms. Client will pay the Service Fees within thirty (30) days of the invoice date, without deduction or setoff. If Client believes an invoice or charge is incorrect, Client must contact Oversight in writing within thirty (30) days of the invoice date or charge to be eligible to receive an adjustment or credit.
4.3. Taxes. Client is responsible for, and must pay, any and all Taxes (other than Taxes based on Oversight's income) imposed in connection with the Services and any other services provided in connection with this Agreement.
4.4. Verification of Usage. Oversight reserves the right to verify that Client’s use of the applicable Service has not exceeded the limitations specified on the applicable Order. If Oversight determines that Client’s use of the Service has exceeded the limitations specified on the applicable Order then at the time of renewal of the term of the Order, Oversight will so notify Client in writing, and provide an Order sufficient to establish compliance with the terms of this Agreement and the applicable Order at the time of commencement of the next Renewal Term.
5. SERVICE AVAILABILITY.
5.1. Service Levels. The Service will be available at least 99% of the time during each month excluding Excusable Downtime (the “Uptime Commitment”). “Excusable Downtime” means time that the Service is not available to Client because of (a) maintenance which is scheduled (i) each week between 12:01 a.m. and 3:00 a.m. Saturday Eastern time, or (ii) during the third week of each month between 6:00 p.m. Saturday and 6:00 a.m. Sunday Eastern time (collectively, the “Standard Windows”) or planned maintenance which cannot be reasonably scheduled during the Standard Windows for which at least 24 hours advance notice is given, (b) outages caused by misuse of the Service by Client, (c) failure of the Internet and/or public switched network, and (d) events that are beyond Oversight’s reasonable control. The Service is considered to be available when any authorized user can successfully log-in and perform a reasonable portion of the available user actions. If Oversight has breached the Uptime Commitment in any month, Oversight will issue Client a credit based on the percentage of Service Fees calculated in accordance with the table below. Such credit will be applied to extend the then current Term or against subsequent invoice(s), as determined by Oversight in its reasonable discretion.
Availability Percentage in any Month
Less than 99 % but at least 97.0%
5% of the annual Service Fee divided by 12
Less than 97.0% but at least 95.0%
10% of the annual Service Fee divided by 12
Less than 95.0%
15% of the annual Service Fee divided by 12
If in any period of 3 consecutive months the Availability Percentage during such period is less than 95%, Client will have the right, upon written notice to Oversight, to terminate the Order(s) for the affected Services and receive a refund of the Service Fees actually paid for the unexpired portion of the then-current Term for the affected Services.
5.2. Client’s Equipment. Client is solely responsible to obtain and maintain its own computer hardware, software and telecommunications connections and switches required to access Services.
6.1. Service Warranties. Oversight warrants that the Services will be performed in (i) a workmanlike manner; (ii) in substantial accordance with the Documentation; and (iii) in accordance with the terms of this Agreement. Client will promptly notify Oversight in writing of any failure of the Services to meet the foregoing warranties. Client will assist Oversight in identifying and reproducing the issue. Oversight will diligently and in good faith attempt to correct the reported defect by repairing or modifying the Service within a commercially reasonable period of time, not to exceed forty-five days. If Oversight is unable to cure that defect by repairing or modifying the Service as provided herein, then Client may elect to terminate its right to use the Service, and Client will be entitled to a refund of the Service Fees actually paid to Oversight for the unexpired portion of the then current Term.
6.2. No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, OVERSIGHT, ITS AFFILIATES, THEIR THIRD PARTY LICENSORS, DISCLAIM ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY.
7. PROPRIETARY RIGHTS.
7.1. Generally. Oversight retains all right, title and interest in and to the Service, together with all patents, copyrights, trademarks, trade names, trade secrets, technology, ideas, know-how, and other intellectual property and proprietary rights pertaining thereto and all derivative works and improvements to the same.
7.2. Client Data.
7.2.1. Oversight does not own any data, information, or material that is submitted to the Service (“Data”). Client will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of, or right to use, Data. Oversight may use the Data for purposes of providing the Service, providing support for the Services (“Support”), and confirming Client’s compliance with the terms of this Agreement. Client acknowledges that Oversight may analyze Data, Client’s usage of the Services and information about the Data for quality assurance, Support, product development, and administrative purposes.
7.2.2. Client will submit Data to Oversight using only methods recommended by Oversight as set forth in Exhibit 1 below. The act of sending Data to Oversight’s processing servers denotes that Oversight has the right to process such data. Reasonable requests to delete or purge Data that was incorrectly or inadvertently sent will be carried out by deleting such data from storage and processing systems.
7.2.3. The parties acknowledge and agree that the Services are not intended for use in the storage, processing or handling of data that is (i) Payment Card Industry data (“PCI data”), (ii) Protected Health Information subject to the Health Insurance Portability and Accountability Act, as amended (“HIPAA”) or (iii) the following data elements (a) Social Security number; (b) driver’s license number or government issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account. “PCI data” means Cardholder Data as defined by the Payment Card Industry Data Security Standard (PCI DSS) v3.2, Cardholder Name excluded and “Protected Health Information” has the meaning set forth in HIPAA.
7.2.4. During the Term, Oversight will perform daily and weekly back-ups of Data. Daily back-ups are stored on site and weekly backups are moved off site from the data center from which the Service is provided.
8.1. Confidential Information Defined. “Confidential Information” means any technical data, pricing, know-how or business information specific to Client or Oversight which is marked as confidential or contains a similar legend Confidential Information does not include information which (a) was in the public domain at the time it was disclosed or becomes in the public domain through no fault of the receiver; (b) can be shown by written documentation to have been known to the receiver, without restriction, at the time of disclosure; (c) was independently developed by the receiver without any use of the discloser’s Confidential Information; or (d) becomes known to the receiver, without restriction, from a source other than the discloser without breach of any confidentiality agreement and otherwise not in violation of the discloser’s rights. The parties agree that the pricing terms of any Order are Confidential Information of Oversight.
8.2. Nondisclosure of Confidential Information. Each party will treat the Confidential Information of the other party in a confidential manner with the same degree of care as such party treats its own proprietary information of like importance, which will be no less than a reasonable degree of care. This Section 8 will not prohibit disclosure of Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, the receiver will furnish prompt notice thereof to enable the discloser to seek a protective order or otherwise prevent such disclosure. The obligations of this Section will survive termination for any reason for a period of three (3) years.
8.2. Remedies. The parties agree that each party shall be entitled to seek equitable relief to protect its interests under this Section 8, including preliminary and permanent injunctive relief, as well as money damages. Nothing stated herein shall be construed to limit any other remedies available to the parties for breach of this Section 8.
9.1. Indemnity. Oversight will defend or, at its option, settle, any third-party claim (a “Claim”) brought against Client relating to any infringement of the intellectual property rights of any third party by the Services as used within the scope of this Agreement. Client agrees that the foregoing indemnity is subject to Client taking all reasonable steps to mitigate any potential expenses and providing Oversight with (i) prompt written notice of any such Claim or possibility thereof; (ii) sole control over the defense or settlement of such Claim; and (iii) all necessary information and assistance to settle or defend any such Claim. The failure of Client to comply with the foregoing requirements shall not relieve Oversight of its obligations under this Section except to the extent Oversight is prejudiced by such failure. If the Services, or in Oversight’s opinion might, infringe as set forth above, Oversight may, at its sole option and expense, procure the right to use the Services or replace or modify the Services so as to avoid infringement. If neither of such alternatives is, in Oversight’s opinion, commercially reasonable, Oversight’s sole liability, in addition to its obligation to reimburse awarded damages and costs as set forth above, is to refund to Client any unearned prepaid amounts for such Services, in which event this Agreement will terminate immediately.
9.2. Exceptions. Notwithstanding the provisions of Section 9.1, Oversight assumes no liability for any claim or allegation arising from use of the Services other than in accordance with the Documentation and this Agreement.
9.3. Exclusive Remedy. This Section 9 states the entire liability and obligation of Oversight, and the exclusive remedy of Client, with respect to any actual or alleged infringement of any intellectual property right by the Services provided hereunder.
10. LIMITATION OF LIABILITY.
10.1. Limit on Certain Damages. In no event shall Oversight have liability for any special, indirect, incidental, punitive, speculative, expectation, or consequential damages, including damages for lost profits, arising in any way out of this Agreement or any order under any cause of action, whether or not Oversight has been advised of the possibility of such damages. This limitation shall apply notwithstanding the failure of essential purpose of any limited remedy.
10.2. Limit on Total Liability. Except for the indemnifications in Section 9, in no event shall the maximum cumulative liability of Oversight, in connection with the Services and this Agreement or any Order, regardless of the form of action, exceed the fees paid by Client to Oversight under the applicable Order giving rise to the claim in the twelve month period prior to claim.
10.3. Limit on Actions. No action, regardless of form, arising from or pertaining to the Services may be brought more than two years after such action has accrued.
11.1. Coverage Generally. Oversight Systems will, at a minimum, maintain the insurance coverage listed below:
11.1.1. Commercial General Liability Insurance with at least $1,000,000 per occurrence and $2,000,000 in the aggregate.
11.1.2. Full statutory coverage for Workers’ Compensation and Employers Liability with limits as required by law.
11.1.3 Errors and Omissions / Professional liability coverage with a limit of at least $3,000,000; this coverage includes information and network technology (cyber) claims.
11.1.4 Commercial Umbrella insurance with a limit of $5,000,000 per occurrence and in the aggregate.
11.1.5 Hired and non-owned Auto coverage with a limit of at least $1,000,00 per occurrence.
11.2. Certificates. Upon request, Oversight Systems will furnish Client with a certificate of insurance listing the types and limits of insurance as set forth above.
12.1. Notices. All notices under this Agreement will be in writing and mailed, or delivered (including by email) to each party as set forth on the cover page (as it may be modified by the recipient by notice to the other). All such notices will be effective upon delivery, but when emailed, such notices will be effective only upon confirmation of receipt.
12.2. Assignment. This Agreement, including any Order shall not be assigned or transferred by Client, without the prior written consent of Oversight (which shall not be unreasonably withheld) and any attempt to so assign or transfer this Agreement without such consent shall be null and void. This provision shall not apply in the case of the sale of substantially all of the stock or assets of Client where the obligations under this Agreement are assumed by the successor entity. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each party’s respective successors and permitted assigns.
12.3. Governing Law; Attorneys’ Fees. This Agreement shall be governed, construed and enforced in accordance with the laws of New York, without reference to conflict of laws principles. Each party hereby waives any right to trial by jury.
12.4. Independent Contractors. The relationship of Oversight and Client established by this Agreement is that of independent contractors.
12.5. Severability. In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.
12.6. No Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of either party thereafter to enforce any such provisions.
12.7. Force Majeure. Except for the obligation to make payments, neither party shall be liable to the other for its failure to perform any of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its reasonable control.
12.8. Export Restrictions. Client acknowledges and agrees that the Services are subject to restrictions and controls imposed by United States law. Client represents and warrants that Client is not (a) located in an embargoed country as designated by the Office of Foreign Asset Control of the Treasury Department (an “Embargoed Country”), or (b) listed on the prohibited persons list maintained by the Bureau of Industry and Security of the Department of Commerce (the “Prohibited Persons List”). Client will not re-export the Services to any person located in an Embargoed Country or listed on the Prohibited Persons List.
12.9. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.
12.10. Publicity. Client agrees that Oversight may include identification of Client as a customer on Oversight’s marketing materials, provided that the identification of Client is no more prominent than the identification of Oversight’s other customers and is otherwise consistent with Oversight’s practice of identifying its customers on Oversight’s marketing materials at the time.
12.11. Non-Solicitation. Oversight and Client agree that during the term of this Agreement and for one year thereafter, that each will not directly or indirectly solicit for employment, hire, or contract with, the other’s employees who have contact with the other party under this Agreement; provided, however, the foregoing will not prohibit targeted solicitation of employment in the ordinary course of business or prevent either party from employing any employee who contacts such party at his or her own initiative without any direct or indirect solicitation by or encouragement from such party.
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