Customer Master Services Agreement
(professional services standard terms & conditions).
The MSA (defined below) is only applicable to Singapore. THE MSA IS NOT INTENDED TO APPLY TO CONSUMER CUSTOMERS AS DEFINED IN ANY CONSUMER PROTECTION LEGISLATION. The Terms and Conditions for Service & Support apply to consumer customers. THE MSA APPLIES TO ALL COMMERCIAL CUSTOMERS (WHICH EXPRESSION INCLUDES SMALL, MEDIUM AND LARGE BUSINESSES AND PUBLIC, ALSO CALLED GOVERNMENT SECTOR, CUSTOMERS). Services and Service Agreements (as defined below) are provided to commercial customers pursuant to the MSA.
THIS CUSTOMER MASTER SERVICES AGREEMENT ("MSA ") is entered into by you ("Customer ") as evidenced by your use of the Services (defined below). "Customer" shall include Customer's corporate subsidiaries, as well as corporate parents, affiliates, and other related entities (collectively, "Affiliates ") approved by 22 Associates to receive Services under this MSA. For purposes of this MSA the term "22 Associates" shall mean the 22 Associates entity identified on Customer's quote or invoice. 22 Associates and Customer agree to the following terms and conditions:
1.1 All services provided by 22 Associates under this MSA (the "Services ") will be described in one or more Service Agreements. "Service Agreements " are order forms or service contracts that incorporate the terms of this MSA, including "Service Descriptions", "Technical Specification", "Invoice ", and any other such mutually agreed upon document. This MSA and each Service Agreement will be interpreted as a single agreement, independent of each other Service Agreement so that all of the provisions are given as full effect as possible. In no event will the description of Services under any Service Agreement be deemed by implication or otherwise to exclude any Services described in this MSA or another Service Agreement.
1.2 In the event of a conflict between the terms of this MSA and a Service Agreement or 22 Associates' standard Terms & Conditions of Sale, Service and Technical Support ("T's & C's"), the terms of these documents will be interpreted according to the following order of precedence: (1) Service Agreement (2) this MSA and (3) the T's & C's .
2. TERMS OF PURCHASE.
2.1 Requests for Service; Quotes and Orders. All orders for Services must specify 22 Associates' quotation (if any), and reference the Service(s) requested and invoice address. All orders are subject to acceptance by 22 Associates.
2.2 Prices. The prices charged for Services purchased under this MSA will be 22 Associates' "then-current" charges for such services in each geographic region or as quoted by 22 Associates. 22 Associates reserves the right to revise pricing if prices for Services are based upon written assumptions and those assumptions are determined inaccurate. If Customer and 22 Associates are not able to reach agreement on the revised pricing, Customer or 22 Associates may terminate the applicable Service Agreement. All prices are exclusive of all applicable country and local sales, use, value added, excise, privilege, franchise and similar taxes. If the Services are being performed on a time and materials basis, any estimates provided by 22 Associates are for planning purposes only.
Any required deposits are non-refundable. Unless otherwise stated in a written quote, all quotes provided by 22 Associates shall be valid for seven (7) days from the quote date after which they shall become null and void.
2.3 Additional Fees; Taxes. Customer shall be responsible for all applicable taxes and fees assessed or imposed upon the Services provided or the amounts charged under this MSA, including any sales, use, excise, value-added, or comparable taxes. 22 Associates shall not be liable for any withholding tax, penalty, or interest due as a result of Customer's failure to withhold any applicable tax.
2.4 Invoicing and Payment.
2.4.1 Unless stated otherwise in the Service Agreement the Services will be invoiced on a monthly basis. Details of actual charges or charge rates will be specified in each relevant Service Agreement. Where there are a number of Services being carried out for Customer an invoice will be issued for each Service unless agreed otherwise with Customer. The due date for payment by Customer shall be specified in the applicable invoice and where unspecified, Customer's payment terms will be net thirty (30) days from the date of invoice and shall be subject to continuing credit approval by 22 Associates. Customer will pay 22 Associates in the currency of the country in which the 22 Associates contracting entity is domiciled, as invoiced by 22 Associates or 22 Associates Affiliate, unless otherwise agreed between the parties. Additional charges may apply if the Customer requests services that are performed outside of contracted hours or are beyond the normal coverage for the particular service.
2.4.2 Where 22 Associates and Customer agree that Customer shall have a right to test those products which are specified in a Service Agreement, Customer shall be able to test the product at the time specified in the Service Agreement. For the avoidance of doubt if there are no specific provisions for linking payment to the testing then 22 Associates shall have the right to invoice for the Services in accordance with Section 2.4.1 above.
2.5 Nonpayment. For invoices not paid by the due date, 22 Associates reserves the right to charge Customer interest for late payment of one and a half percent (1.5%) per month applied against overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, 22 Associates may, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate the Services until such payment is received and may decide not to accept additional orders from Customer and/or seek collection of all amounts due, including reasonable legal fees and costs of collection. 22 Associates shall have no liability to Customer for any such suspension or termination of Services, or non-acceptance of orders.
2.6 Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an order to 22 Associates for Services shall agree to abide by the terms of this MSA. 22 Associates, in its sole discretion, may discontinue selling Services to any Affiliate or may require additional payment and/or credit conditions for such Affiliate.
3. TERM & RENEWAL.
Each Service Agreement will begin on the earlier of the date on the Customer's invoice with 22 Associates, the date on which Service delivery begins or the date on which Customer's use of the Service begins ("Effective Date") and continue for the term stated therein, unless otherwise terminated pursuant to this MSA. In addition, 22 Associates may, at its option, propose to renew the Service by sending Customer an invoice or continuing to make the Service available to Customer. Customer may (where permitted by law) agree to such renewal of the Service by paying such invoice by its due date or by continuing to use the Service. If Customer renews a Service Agreement by continued use of the Service, Customer will be invoiced in a manner substantially similar to their initial term of Service.
Either party may terminate this MSA for convenience by providing at least thirty (30) days prior written notice to the other. Termination of this MSA for convenience will not terminate any outstanding Service Agreement that provides for a specific term over which the Services are to be provided. In such case, this MSA, as incorporated into the Service Agreement, and the Service Agreement that provides for a specific term will remain in effect for the remainder of such term. Upon termination of this MSA, all rights and obligations of the parties under this MSA will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination.
Either party may terminate an individual Service Agreement if the other party commits a material breach of such agreement and the breach is not cured within thirty (30) days of receipt of written notice from the injured party. Termination of one or more Service Agreements will not terminate this MSA.
5. THIRD-PARTY PRODUCTS & WARRANTIES.
"Third Party Products" means any third-party hardware, services or software. 22 ASSOCIATES DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE 22 ASSOCIATES SERVICES MAY HAVE ON THOSE WARRANTIES. Except as agreed to in writing between Customer and 22 Associates, Third Party Products shall be exclusively subject to terms and conditions between the third party and Customer.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW, 22 ASSOCIATES SHALL HAVE NO LIABILITY FOR THIRD PARTY PRODUCTS AND CUSTOMER SHALL LOOK EXCLUSIVELY TO THE THIRD PARTY PROVIDER FOR ANY DAMAGES OR LIABILITY WITH RESPECT TO THE PROVISION OF SUCH THIRD PARTY PRODUCTS.
6. PROPRIETARY RIGHTS.
6.1 Deliverables. Except as otherwise specifically agreed to in a Service Agreement, 22 Associates will retain exclusive ownership in all Deliverables created by 22 Associates hereunder and will own all intellectual property rights, title, and interest in any ideas, concepts, know-how, documentation or techniques developed by 22 Associates under this MSA. Subject to payment in full for the applicable Services, 22 Associates grants Customer a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country(ies) in which Customer does business and solely for Customer's internal use.
6.2 Tools & Software. 22 Associates will retain all intellectual property rights with respect to the product, system, and packages related to the Services. Any use by Customer, including the execution, reverse engineering, decompilation, reproduction, modification, distribution, republication, display, transfer or performance, except as specifically permitted by 22 Associates during the term of Services is prohibited.
7. CUSTOMER RESPONSIBILITIES.
CUSTOMER ACKNOWLEDGES THAT 22 ASSOCIATES' PERFORMANCE AND DELIVERY OF THE SERVICES ARE CONTINGENT UPON: (A) CUSTOMER PROVIDING SAFE AND HAZARD-FREE ACCESS TO ITS PERSONNEL, FACILITIES, EQUIPMENT, HARDWARE, SOFTWARE, NETWORK AND INFORMATION FOR SERVICES TO BE PERFORMED AT CUSTOMER'S LOCATION, AND (B) CUSTOMER'S TIMELY DECISION-MAKING, NOTIFICATION OF RELEVANT ISSUES OR INFORMATION AND GRANTING OF APPROVALS OR PERMISSIONS.
CUSTOMER WILL PROMPTLY OBTAIN AND PROVIDE TO 22 ASSOCIATES ANY REQUIRED LICENSES, APPROVALS OR CONSENTS NECESSARY FOR 22 ASSOCIATES' PERFORMANCE OF THE SERVICES. FAILURE TO CARRY OUT ANY CUSTOMER RESPONSIBILITY MAY DELAY OR AFFECT A SERVICE LEVEL SET OUT ANY SERVICE AGREEMENT.
In the performance of the Services, Customer and 22 Associates may have access to or be exposed to information of the other party not generally known to the public, including, but not limited to product plans, marketing and sales information, customer lists, "know-how," or trade secrets which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, "Confidential Information"). Confidential Information may not be shared with third parties unless such disclosure is to personnel of 22 Associates or Customer, including employees, agents, and subcontractors, on a "need-to-know" basis in connection with its performance of this MSA, so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality, and shall only make such information available to its employees on a "need-to-know" basis. The foregoing shall not include information, which, (A) was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient, (B) is received by the recipient from a source other than a party to this MSA, or (C) a party is required to disclose in response to an order by a court or governmental agency, provided that advance notice of the disclosure is provided to other parties.
9. SUPPORT SERVICES.
When Services consist of repair of 22 Associates-branded systems, such Services shall be those repair services that are necessary because of any existing defect or a defect occurs in materials or workmanship in the system or in any system component covered by this MSA. Preventive maintenance is not included. Repairs necessitated as a result of alteration, adjustment, or repair by anyone other than 22 Associates (or its representatives) are not included. Unless otherwise expressly provided in a Service Agreement, Services do not include repair of any system or system component which has been damaged as a result of: (A) accident, misuse, or abuse of the system or component (such as, but not limited to, use of incorrect line voltages, use of incorrect fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than 22 Associates (or its representatives), (B) an act of God such as, but not limited to, lightning, flooding, tornado, earthquakes, and hurricanes, or (C) the moving of the system from one geographic location or entity to another.
10. LIMITED WARRANTY & LIMITATION OF LIABILITY; HIGH-RISK DISCLAIMER.
10.1 Limited Warranty. 22 ASSOCIATES WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW, 22 ASSOCIATES (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE "22 ASSOCIATES PARTY(IES)") MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES; OR ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION THE 22 ASSOCIATES PARTIES MAY MAKE.
10.2 Limitation of Liability. 22 ASSOCIATES DOES NOT LIMIT ITS LIABILITY FOR FRAUD, PERSONAL INJURY OR DEATH ARISING FROM ITS NEGLIGENCE OR FOR FRAUD OR ANY OTHER LOSS THAT CANNOT BE LIMITED UNDER APPLICABLE LAW AND THIS SECTION DOES NOT APPLY TO SUCH LIABILITY. NEITHER THE 22 ASSOCIATES PARTIES NOR CUSTOMER WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY 22 ASSOCIATES. WHETHER DIRECT OR INDIRECT, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOSS OF BUSINESS OPPORTUNITY, (C) BUSINESS INTERRUPTION OR DOWNTIME, OR (D) SERVICES, 22 ASSOCIATES PRODUCTS OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE BY CUSTOMER. THE 22 ASSOCIATES PARTIES' AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN CONNECTION WITH ANY SERVICE PROVIDED PURSUANT TO THIS MSA SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM.
EACH PARTY ACKNOWLEDGES THAT THESE LIMITATIONS APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, THE FEE FOR THE SERVICES PROVIDED HEREUNDER WOULD BE HIGHER.
10.3 High-Risk Application Disclaimer. THE SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, "HIGH-RISK ACTIVITIES"). 22 ASSOCIATES EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
22 Associates shall defend, indemnify and hold harmless Customer from any third-party claim or action that the Services or any Deliverables (excluding Third-Party Products) prepared or produced by 22 Associates and delivered pursuant to this MSA infringe or misappropriate that third party's patent, copyright, trade secret, or other intellectual property rights enforceable in the country(ies) in which the Services or Deliverables are sold to Customer by 22 Associates ("Indemnified Claims"). In addition, if 22 Associates receives notice of a claim that, in 22 Associates' reasonable opinion, is likely to result in an adverse ruling, then 22 Associates shall at its option, (A) obtain a right for Customer to continue using such Service or Deliverable; (B) modify such Service or Deliverable to make it non-infringing; (C) replace such Service or Deliverable with a non-infringing equivalent; or (D) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated refund for the allegedly infringing Deliverable. Notwithstanding the foregoing, 22 Associates shall have no obligation under this Section for any claim resulting or arising from (A) Customer's modifications of the Service or Deliverable that were not approved by 22 Associates; (B) the combination, operation or use of the Service or Deliverable in connection with a third-party product or service (the combination of which causes the infringement); or (C) 22 Associates' compliance with Customer's written specifications or directions, including the incorporation of any software or other materials or process provided by or requested by Customer.
Customer accepts responsibility for and shall defend, indemnify and hold 22 Associates harmless from, any liability, damages, third-party claim or action arising out of any inaccurate representations regarding the existence of an export license or any allegation made against 22 Associates due to Customer's violation or alleged violation of applicable export laws, regulations, and orders.
Each party agrees to indemnify and hold harmless the other party from any third-party claim or action for personal bodily injuries, including death, resulting from the indemnifying party's gross negligence or willful misconduct resulting from the Services (excluding Third-Party Products) provided hereunder. This section states each party's exclusive remedies for any third-party claim or action, and nothing in this MSA or elsewhere will obligate either party to provide any greater indemnity to the other.
12. EXPORT; REGULATORY REQUIREMENTS.
12.1 Export. Customer and 22 Associates acknowledges that the Services sold under this MSA, which may include technology and software, are subject to the customs and export control laws and regulations of Singapore ("SG"), may be rendered and/or performed either in the SG, in countries outside SG or outside of the borders of the country in which Customer or Customer's system(s) is located and may also be subject to the customs and export laws and regulations of the country in which the Services are rendered and/or received. Customer and 22 Associates agree to abide by those laws and regulations.
12.2 Regulatory Requirements. 22 Associates is not responsible for determining if Third Party Products to be used in the performance of the Services satisfy the local regulatory requirements of the country to which the products are to be shipped, nor shall 22 Associates be obligated to perform any Services where the resulting products or software do not satisfy the local regulatory requirements.
13. IMPORTANT ADDITIONAL TERMS.
13.1 Independent Contractor Relationship; MSA Assignment; Subcontracting. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this MSA. 22 Associates has the right to subcontract or delegate in whole or in part the performance of the Services provided under this MSA or to assign Services to 22 Associates affiliates. Otherwise, neither party may assign this MSA without the permission of the other.
13.2 Entire Agreement; Severability; Section Headings. This MSA and Service Agreements is the entire agreement between 22 Associates and Customer with respect to its subject matter and supersede all prior oral and written understandings, communications or agreements. No amendment to or modification of this MSA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this MSA is void or unenforceable, the remainder of this MSA will remain in full force and effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.
13.3 Force Majeure. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this MSA during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a "Force Majeure").
13.4 Notices. Notice to 22 Associates under this MSA must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address which appears on the Customer's invoice or to such other address as any party shall specify by notice in writing to the other party and will be effective upon receipt.
13.5 Governing Law, Forum, and Language. THE PARTIES AGREE THAT THE MSA, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND 22 ASSOCIATES ARISING FROM OR RELATING TO THE MSA, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS WHICH RESULT FROM THIS MSA OR ANY RELATED PURCHASE SHALL BE GOVERNED BY THE LAWS OF SINGAPORE. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF SINGAPORE AND HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER.
This MSA will be interpreted and construed in accordance with the English language. In case of any inconsistency in interpretation between the English language version and any translation thereof, the English version shall prevail.
13.6 Dispute Resolution. Customer and the 22 Associates Parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this MSA, 22 Associates' advertising, or any related purchase (a "Dispute") through face-to-face negotiation with persons fully authorised to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.
13.7 Limitation Period. Neither party may institute any action in any form arising out of this MSA more than two (2) years after the cause of action has arisen, or in the case of nonpayment, more than two (2) years from the date of last payment.
13.8 Updates. 22 Associates reserves the right to update its MSA at any time, effective upon posting an updated version at www.22 Associates.com; however, Customer's rights and obligations shall be as provided in the version of this MSA available to Customer at the time of Customer's purchase of Services or, when applicable, Customer's renewal of Services.
13.9 Rights of Third Parties. The parties hereby expressly acknowledge and agree that save where expressly provided by this MSA, no persons other than the parties shall derive any rights with respect to this MSA pursuant to the Contracts (Rights of Third Parties) Act 2001.
13.10 Consumers. Nothing in this MSA shall affect the statutory right of a Customer dealing with 22 Associates as a consumer as defined in any consumer protection legislation intended to protect consumers in similar transactions.