John Deere Dealer Terms - MomentFeed
This Master Services Agreement (the "Agreement") is made by and between MomentFeed, Inc., a Delaware corporation having its principal place of business at 3415 South Sepulveda Blvd., Suite 1100, Los Angeles, CA, 90034 ("MomentFeed"), and Deere & Company, a corporation having its principal place of business at 10789 S, Ridgeview Road, Olathe, KS 66061-6448 ("Client"), collectively known as the "Parties", as of the later of November 30, 2017 and the date this Agreement is fully executed (the "Effective Date"), in consideration of the mutual promises and covenants described as follows.
"Administrative User" means the named Client employees or authorized agents who: (i) have sufficient training and/or experience with the Application Service to perform the Client's obligations, (ii) are responsible for all communications with MomentFeed, including case submission and Incident reports, and (iii) who are authorized by Client to request and receive Services on behalf of the Client.
"Affiliate" means any person or entity, controlling, controlled by or under common control with Client or MomentFeed, as applicable.
"Application Service" means, collectively, MomentFeed's online software Platform as described in the Knowledge Base that is procured by Client from MomentFeed in the Order Form (Exhibit A) and any subsequent Order Form from time to time, including associated offline components, but excluding Third Party Applications and Professional Services. The Application Services shall include continuous efforts on the part of MomentFeed, consistent with applicable industry standards and best practices, to enhance and improve the Platform and maintain the Platform and the provision of industry-leading software maintenance, updates, enhancements, and improvements.
"Change Order" means a change in any of the specifications, requirements, deliverables, or scope of any Professional Services as documented in any Statement of Work.
"Covered Locations" means locations submitted to MomentFeed by Client for storage and data management on the MomentFeed Platform.
"Client Data" means all electronic data or information submitted by Client to MomentFeed and stored in the Platform.
"Effective Date" means the date that the Term begins.
"Fees" means the fees, charges, and other costs set forth in an Order Form (Exhibit A) and in any applicable Statement of Work.
"Knowledge Base" means the online English language user guides for the Application Service, accessible via login at http://www.momentfeed.com (under "Help"), as updated from time to time.
"Managed Services" means the ongoing data and location listings management of Client's data pursuant to the Managed Services Terms.
"Order Form" means the Application Service ordered by Client or its Affiliates pursuant to Order Forms. Each Estimate/Order Form, the first one of which is attached hereto as Exhibit A, shall include at a minimum a listing of the Application Service and any MomentFeed implementation services being ordered and the fees therefore.
"Platform" means the software system owned or licensed by MomentFeed and marketed by MomentFeed as further detailed in an Order Form (Exhibit A), such other systems and content Client acquires the right to access or use pursuant to this Agreement after the Effective Date, and all updates, enhancements, patches, fixes or modifications to any of the foregoing made available or provided by MolnentFeed to Client. The Platform includes: (a) the proprietary software applications and third party software applications provided or otherwise made available by MomentFeed to Client as part of the Platform, (b) all technology, technical information, discoveries, ideas, theories, improvements, tools, designs, original works of authorship, processes, algorithms, software, inventions, know-how, techniques, and other information, including all intermediate and partial versions thereof, underlying the Platform.
"Professional Services" means the general consulting, implementation and/or training services to be provided to Client pursuant to any Statement of Work.
"Services" means the Application Services, Professional Services, and Managed Services covered in this Agreement.
"Service Level Commitment" means MomentFeed's commitment to provide Client access to the Application Service pursuant to the Service Level Commitment Terms.
"Statement of Work" means the applicable Professional Services in relation to this Agreement as defined in any subsequent Statement of Work.
"Support Services" means MomentFeed's technical support services to be provided to Client pursuant to the Support Services Terms.
"Third Party Applications" means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than MomentFeed that interoperate with the Application Service.
"Term" shall be for number of months indicated on an Order Form commencing on the Effective
Date unless earlier terminated pursuant to Section 2.b of this Agreement.
"Users" means individuals who are authorized by Client to use the Application Service pursuant to this Agreement or as otherwise defined, restricted or limited in an Order Form or amendment to this Agreement, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Client (or by MomentFeed at Client's request). Users may include but are not limited to Client's and Client's Affiliates' employees, consultants, contractors and agents.
2. Term and Termination.
a. Term. This Agreement shall begin on the Effective Date and continue for the Term stated in Exhibit A unless extended in accordance with this Agreement or earlier terminated as provided herein.
b. Termination. Either Party may terminate this Agreement in the event of a material breach by the other Party if the breaching Party has not cured such breach within thirty
(30) days following receipt of written notice describing such breach from the non- breaching Party. Any termination of this Agreement shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Termination prior to the conclusion of the Term from either Party will result in reconciling the Fees paid for the Services rendered up to the termination date on a pro-rated basis.
3. Payment Terms. All invoices sent by MomentFeed to Client will be due in full within thirty (30) days of Client's receipt of an accurate invoice. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less. MomentFeed reserves the right to suspend Client's access to and/or use of the Platform for any accounts for which any payment is due but unpaid but only after MomentFeed has provided Client two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. The suspension is for the entire account and Client understands that such suspension would therefore include sub-accounts. Client agrees that MomentFeed shall not be liable to Client or other third party for any suspension of the Service pursuant to this Section 3.
4. Taxes. Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the services by MomentFeed to Client under this Agreement and such shall be payable by Client to MomentFeed in addition to all other charges payable.
5. Professional Services.
a. MomentFeed shall provide consulting and training services only to the extent such consulting and/or services are specifically set forth under the terms of the Statement of Work. In the event of any conflict between the Agreement and a Statement of Work (SOWs), the provisions of the Statement of Work shall prevail. All SOWs shall be billed on a time and materials basis at MomentFeed's then-current consulting rates, unless otherwise agreed in writing by the parties. Any monetary limit referenced in a SOW shall be an estimate only for purposes of Client's budgeting and MomentFeed's resource scheduling, unless expressly stated to be a definitive limit. MomentFeed shall have the right to use third parties in performance of SOWs hereunder and, for purposes of this Agreement, all references to MomentFeed or its employees shall be deemed to include such third parties.
b. Client acknowledges that MomentFeed's Professional Services, techniques, information, documentation, training materials, consulting methods, and any work product resulting from all Services performed by MomentFeed, are MomentFeed's proprietary information and intellectual property (the "Utilities"). MomentFeed hereby grants Client a non-exclusive, non-transferable right and license to use the Utilities under the Agreement. MomentFeed retains all rights, title and ownership to the Utilities.
6. Relationship of the Parties. The Parties acknowledge and agree that each Party, its employees, agents or sub-contractors, in the performance of this Agreement, is acting as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties.
7. Warranty. MomentFeed represents and warrants that (a) it will perform the Services with reasonable care and skill in accordance with industry standards, (b) the Services provided by MomentFeed to Client under this Agreement will not infringe or violate any intellectual property rights or other right of any third party and (c) each party warrants that it will not introduce viruses, Trojan horses, worms, spyware, or other such malicious code into the Platform.
8. Authentication. Client agrees to authorize MomentFeed to aggregate and share Client Data on behalf of Client on networks related to this Agreement. Client is responsible for securing DSL, cable or another high-speed internet connection and up-to-date "browser" software in order to utilize the Platform and Services. Client agrees to use commercially reasonable efforts to authenticate on networks related to this Agreement. Networks related to this Agreement are listed in Exhibit A (Order Form).
9. Confidentiality. Neither MomentFeed nor Client (each a “Party”) shall disclose any Confidential Information of the other Party or use such Confidential Information except as specifically permitted in performance of this Agreement. The receiving Party’s confidentiality obligation with respect to the Confidential Information of the disclosing Party shall not extend to information that: (a) is in the public domain at the time of its disclosure; (b) becomes part of the public domain through a source other than the receiving Party (directly or indirectly); or (c) is required to be disclosed pursuant to a court order or governmental authority. The obligations of the parties under this Section shall supersede all prior confidentiality agreements between the Parties and shall survive the termination or expiration of this Agreement for a period of five (5) years, and thereafter with respect to a Party’s software and trade secrets so long as they remain eligible for trade secret protection under prevailing law (without regard to a breach by receiving Party). “Confidential Information” for this purpose means information about the disclosing Party’s business or activities that is proprietary or confidential, which shall include all business, financial, technical and other information of a Party or Client which is either marked or designated by such Party as “confidential” or “proprietary” or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.
10. Mutual Representations and Warranties. Each of the Parties hereby represents and warrants to the other that (i) it has all rights necessary to grant the other Party the rights granted by this Agreement, (ii) it has the power and authority to enter into, and perform its obligations under, this Agreement, and (iii) it is under no obligation, contractual or otherwise, which might in any way interfere with its full and complete performance of this Agreement.
11. Limitation of Liability. Except for damages arising from a Party's indemnity obligations or a breach by a Party of its confidentiality obligations hereunder, under no circumstances will either Party or its Affiliates be liable to the other Party for indirect, consequential, special or exemplary damages arising from or relating to this Agreement. The foregoing limitation of liability shall apply to the fullest extent permitted by applicable law.
a. MomentFeed Indemnification. MomentFeed shall indemnify, defend and hold harmless Client, its officers, directors, employees, agents, subsidiaries and other Affiliates, from and against any and all damages, costs, penalties, liabilities, or expenses (including attorneys' fees and costs) directly or indirectly arising out of or related to any third party claim, suit, or demand based on (a) MomentFeed's breach of any term of this Agreement, (b) MomentFeed's negligent or willful acts or omissions in carrying out its obligations under this Agreement, or (c) any allegation that the Service (in whole or in part) or any other intellectual property furnished in connection with this Agreement infringes any U.S. patent, copyright, trademark, trade secret or other proprietary right. This Section l3(a) shall survive the termination or expiration of this Agreement.
b. Client Indemnification.Client shall indemnify, defend and hold harmless MomentFeed, its officers, directors, employees, agents, subsidiaries and other Affiliates, from and against any and all damages, costs, penalties, liabilities, or expenses (including attorneys' fees and costs) directly or indirectly arising out of or related to any third party claim, suit, or demand based on (a) Client's breach of any term of this Agreement or (b) Client's negligent or willful acts or omissions in carrying out its obligations under this Agreement. This Section l3(b) shall survive the termination or expiration of this Agreement.
13. Severability. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, and the Parties will maintain the original benefit of the bargain for each party to the maximum extent possible under the law.
14. Assignment. Neither Party may assign this Agreement without the other Party's written consent, provided however, that either Party may assign this Agreement (a) to an Affiliate, (b) to an acquirer in connection with any merger, consolidation, or sale of all or substantially all of such Party's assets, (c) in connection with any transaction or series of transactions resulting in a change of control or (d) in the event of any internal restructuring not constituting a change in control, to an Affiliate or successor-in-interest. In the case of any assignment permitted by this Section 15, (i) the assigning Party must provide notice of such assignment, (ii) the assignee must agree in writing to be bound by all the terms and conditions of this Agreement, and (iii) if the assignment is to a subsidiary of the assigning Party, the assignor shall remain primarily liable.
15. Non-Solicitation. During the Term of this Agreement and for one (1) year after any termination of this Agreement, Client will not directly or indirectly, on Client's own behalf or in the service or on behalf of others, in any capacity induce or attempt to induce any officer, director, or employee to leave MomentFeed.
16. Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Delaware and any applicable federal laws, without regard to principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the federal and state courts in Wilmington, Delaware, for purposes of any legal action arising out of or related to this Agreement.
17. Survival. The rights and obligations of the Parties that survive termination or expiration of this Agreement, including those set forth herein concerning indemnification, confidentiality, warranty, limitation of liability and choice of law and venue, will remain in full force and effect. No termination or expiration of this Agreement will relieve either Party for any liability for any breach of, or liability accruing under this Agreement prior to termination.
18. Integration. This Agreement will constitute a binding contract between MomentFeed and Client and will supersede any other oral or written Agreements between the Parties regarding the subject matter therein (including terms in or referenced in this Agreement).
19. Remedies. No remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either Party shall not constitute a waiver of the right to pursue other available remedies.
20. Counterparts and Transmitted Copies. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one instrument. This Agreement may be executed by facsimile or PDF.