Brickfield
Education Labs Ltd
Master
Service Agreement
Effective Feb
2, 2023
Brickfield
Education Labs Ltd
Master Service Agreement
TABLE OF CONTENTS
SECTION |
DESCRIPTION |
PAGE |
1 |
General |
1 |
2 |
Offer, Acceptance |
1 |
3 |
Modifications |
1 |
4 |
Invoices; Payment; Currency |
1 |
5 |
Applicable Taxes |
2 |
6 |
Brickfield Warranty |
1 |
7 |
Indemnity; Defense; and Insurance |
2 |
8 |
Intellectual Property |
2 |
9 |
Infringement and Proprietary Rights |
4 |
10 |
Confidentiality |
4 |
11 |
Personally Identifiable Information |
5 |
12 |
Assignment |
7 |
13 |
Excusable Delays |
7 |
14 |
Termination/Expiration |
8 |
15 |
Resolving Disputes |
8 |
16 |
Miscellaneous |
9 |
Master Service Agreement
1.
GENERAL. This Master Service Agreement (MSA) will govern the relationship between Brickfield Education
Labs, Ltd whose principal place of business is in Ireland ("Brickfield”) and
you as the "Subscriber” of services
("Services"). Subscriber or Brickfield may also be referred
to as "Party”. The term Services
will include, without limitation, Commercial Software, Developed Software,
Data, Deliverables or Services as defined below.
2.
TERMS.
(a) This MSA shall govern the terms between Brickfield and
Subscriber.
(b) A Statement of Work ("SOW”) shall be issued
to accompany this MSA and may indicate that certain Supplemental Terms apply to
the MSA. The Supplemental Terms of the
SOW will take precedence in the event of any conflict with the global terms of
this MSA...
(c) The English version of any MSA or SOW will apply in the event of
any dispute over any translation.
3. MODIFICATIONS. Subscriber and Brickfield acknowledge that
modifications and adjustments to the specifications for the Services may become
necessary in order to clarify and define these specifications. Brickfield will
perform these modifications and adjustments hereunder without additional
compensation, however, in the event there is substantial change to the
specifications which results in the expansion of the scope of the
specifications or the reduction in the scope of the specifications, Brickfield
will submit to Subscriber a written proposal therefor describing the change to
be made and a fixed price increase or decrease therefor, as the case may be. If
Brickfield's proposal is acceptable to Subscriber, Subscriber will issue a new SOW
or an amendment to the existing SOW reflecting such modifications to the
specifications and adjustment in price. Brickfield will not commence any work
in connection with such change until such SOW is executed by the Parties.
4. INVOICES;
PAYMENT; CURRENCY. Payment terms will be as
specified in the relevant SOW. Unless a
Purchase Order specifically states otherwise, all payments will be made in EU
Euros.
5 APPLICABLE TAXES. Subscriber shall be responsible for timely
payment of all applicable sales tax, VAT, or other taxes related to the
purchase of the services provided
6. BRICKFIELD WARRANTY.
(a) Brickfield
warrants that the Services will:
(i) Not infringe any proprietary
rights (including patents, copyrights, trademarks and trade secrets) of any
other entity;
(ii) The Services (including
Professional Services), Brickfield warrants that such Services will be provided
by appropriately qualified and trained personnel, in a professional manner with
due care and diligence to such high standard of quality as it is reasonable for
Subscriber to expect in the circumstances;
(iii) If the services include
software that is being licensed to Subscriber, Brickfield also warrants that it
has the right to license the software to Subscriber and that Brickfield is in
compliance with the licenses of any free or open-source software contained in such
software;
(iv) If the services contain software
that is being developed by Brickfield for Subscriber ("Developed Software”), Brickfield also warrants that that the
Developed Software is compatible with and will operate on the devices, systems
or sites described on a SOW as applicable;
(v) Unless Brickfield notifies
Subscriber otherwise in a SOW, no Commercial Software or Developed Software
will contain (A) any free or open-source software constituting Copyleft
Materials (as defined below), or (B) any other free or open-source software not
in compliance with the applicable notice, disclaimer, or other licensing
requirements thereof. "Copyleft
Materials” means materials subject to any license that requires as a
condition of use, modification, or distribution thereof, that such materials,
or materials combined or distributed with such materials, be (1) disclosed or
distributed in source code or similar form, (2) licensed for the purpose of
making derivative works, or (3) redistributable at no charge. The term includes
materials subject to the GNU General Public License or similar licenses (but
not if the Classpath exception applies).
(vi) For Data (as defined in
Section 22) that Brickfield is selling, providing or licensing to Subscriber, Brickfield
also warrants that it has the right to sell, provide or license such Data to
Subscriber, that all Data will be, upon delivery, as current, accurate and
complete as may be reasonably achieved using the source data, compilation and
data processing methods consistent with standard industry practices and that
all Data will comply with all security and privacy laws, including the
provision of notice and obtaining any consent required to provide the Data and
advising of any limitations on its use.
(d) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA: (I) THE SERVICES
(INCLUDING WITHOUT LIMITATION THIRD PARTY SOFTWARE (AS DEFINED IN
SECTION 9(H) ARE PROVIDED TO SUBSCRIBER
ON AN "AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY
KIND; AND (II) BRICKFIELD EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES
AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY
RIGHTS.
7. INDEMNITY;
DEFENSE; INSURANCE.
(a) To the full extent permitted by applicable law, Brickfield will
indemnify Subscriber, Related Companies, and their directors, officers,
employees, agents and authorized dealers for all expenses (including attorney
fees, settlements, and judgments) incurred by Subscriber in connection with any
third party claims (including lawsuits, administrative claims, regulatory
actions, and other proceedings to recover for personal injury or death,
property damage, or economic losses) that arise out of Brickfield's
representations, performance or obligations under a SOW, including claims based
on Brickfield's breach of warranty and claims for any violations of any
applicable law, ordinance or regulation or government authorization or
orders. Brickfield's obligation to
indemnify under this Section will apply regardless of whether the claim arises
in tort, negligence, contract, warranty, strict liability or otherwise except
to the extent of the negligence of Subscriber.
(b) Brickfield will have the right to exercise reasonable control
over any litigation within the scope of this indemnity; provided, however, that
Subscriber will have the right to participate in any such litigation insofar as
it concerns claims against it. That
right to participate includes Subscriber's right to select and retain counsel
to represent it at Subscriber's own expense. Brickfield
must not compromise or settle any claim without Subscriber's approval, with
such approval not to be unreasonably withheld. Subscriber may reasonably
withhold its consent to any compromise or settlement of any claim that does not
unconditionally release Subscriber of all liability, that adversely and
materially affects Subscriber's business or service (including without
limitation Subscriber's brand or reputation), that obligates Subscriber to pay
any monies or for any other reasonable reason.
8 INTELLECTUAL
PROPERTY.
(a) Brickfield Intellectual Property. The following "Brickfield Intellectual Property” will remain the property of Brickfield:
(i) Commercial Software, or any derivatives thereto or modifications of
adaptions thereto; and (ii) patents, copyrights, industrial design rights or
other proprietary rights of Brickfield that are not developed specifically for
Subscriber. Subscriber will have no interest in, or claim to, Brickfield
Intellectual Property except as specifically granted herein. Subscriber shall
not reverse engineer, modify, or prepare any derivative work based upon the
Commercial Software, resell, distribute the Commercial Software or any copy
thereof or run or use any edition of the Commercial Software licensed under the
AGPL, GPL or any other open-source license in the same project or system in
which Subscriber uses or has used the Commercial Software licensed hereunder,
during the license term for the Commercial Software set forth in a Purchase
Order. To the extent Subscriber
maintains or retains any of Brickfield's intellectual property including
software or plug ins Subscriber shall not provide such intellectual property to
any third-party.
(b) Work Product. Except
for Brickfield Intellectual Property or as set forth in a SOW, any supplies
created or acquired specifically for Subscriber by Brickfield ("Deliverables”) will be owned by
Subscriber if so specified in the applicable SOW. Subject to the foregoing, all
such Deliverables and intellectual property rights embodied therein developed
or prepared for Subscriber by Brickfield under a SOW shall remain the exclusive
property of Brickfield (provided however, that Brickfield covenants not to
reuse or distribute in any manner any portions of the Deliverables that
incorporate Subscriber's Confidential Information). Unless otherwise specified in the SOW, Brickfield
grants to Subscriber a limited, personal, revocable, non-transferable,
non-sublicensable, non-exclusive license during the term of the applicable SOW to:
(i) use the Deliverables for Subscriber's internal business purposes and (ii)
use any Deliverables that constitute an upgrade, update, improvement or
modification to the Commercial Software on the same license terms as set forth
in this MSA and the applicable SOW.
Subscriber shall own and maintain any and all right, title and interest
in and to proprietary Subscriber-provided materials to Brickfield.
(c) Subscriber Intellectual Property. Brickfield will not sell, license or
otherwise provide any product or service that uses or incorporates any
trademark, patentable invention, copyrightable work, industrial design or other
matter that is the subject of any intellectual property right of Subscriber or
any of its Related Companies, to any party other than Subscriber, except where
specifically authorized by Subscriber in writing.
(d) Licenses. To the
extent the corresponding rights are not owned by Subscriber or have not been
transferred, assigned or licensed to Subscriber under this Section 8, Brickfield
grants to Subscriber and its Related Companies the following nonexclusive,
revocable pursuant to the terms of this MSA, limited, paid-up,
non-transferable, non-sublicensable, worldwide licenses (each and collectively
"License”) during the term set forth
in a SOW:
(i) to use, reproduce, and perform the Commercial Software for
Subscriber's internal business and educational purposes only under each
copyright that Brickfield owns and controls or has the right to license. Subscriber's license is limited to those
within its organization and may not license or sublicense the Commercial
Software to any third-party. Any attempt
to sell or otherwise license or share the Commercial Software to any
third-party is a breach of this license and shall entitle Brickfield to damages
as proved by Brickfield.
(e) Commercial
Software. As to any software and documentation (other than Work Product) that
is owned or controlled by Brickfield ("Commercial Software")
in addition to the licenses set forth in subsections above:
(i) Installation and Backup. (A) Subscriber, or its subcontractors, agents
or service providers, is licensed to use the Commercial Software at any
location or site globally either as part of a global network, a wide area
network, a local area network, a computer site/system, on any servers/computer
system, or on virtual servers/networks so long as the total number of copies in
use at any point in time does not violate any licensing metric (such as number
of concurrent users, Instances, Machines and Cores) documented in the SOW and
(B) Subscriber is licensed to make a
reasonable number of backup copies of the Commercial Software.
(ii) Permission
to Copy. Unless stated otherwise in an applicable SOW, Commercial Software
may be copied by Subscriber in written or machine readable form in whole or in
part for backup or archive purposes, and for purposes of installation and
running the Commercial Software provided that such use does not exceed the
license metrics for Instances, Machines and Cores set forth in the applicable SOW.
Unless otherwise agreed in an SOW, Subscriber may integrate the Commercial
Software into other software programs solely for the purpose of installing the
Commercial Software on Subscriber's systems, provided that all copies of the
Commercial Software will be destroyed upon termination or expiration of this
license. All copies of the Commercial Software made by Subscriber will include any
copyright and confidential notices included by Brickfield in the Commercial
Software.
(iii) Support
and Maintenance. Brickfield will provide Subscriber with maintenance,
support, updates, enhancements, modifications or changes to the Commercial
Software which are available from Brickfield in accordance with support
services specified on the SOW. In the event that there are no support services
specified, Brickfield will provide to Subscriber support services, including
updates and enhancements, which it makes generally available. Brickfield will
provide ninety (90) days written notice of any changes to the maintenance and
support services specified on the SOW. Subscriber will determine if the changes
contained in the notification materially diminish the services received, and in
the event of material change, Subscriber will have the right to maintain the
previous level of service until renewal.
(f) Third Party Intellectual Property. For any portion of the Services covered by
intellectual and industrial property rights not owned or controlled by Brickfield
("Third Party IP”) and not
transferred, assigned or licensed to Subscriber in accordance with Sections 8(b)
through (e), Brickfield and/or Brickfield's subcontractors must provide
Subscriber with the assignment(s) or license(s) necessary for Subscriber to
utilize such Third Party IP and Brickfield must disclose all such Third Party
IP in any applicable SOW (or as to new versions as set forth in a changelog
that Subscriber receives through maintenance and support notices provided that
Subscriber subscribes to such notices).
9. INFRINGEMENT AND
PROPRIETARY RIGHTS. Brickfield at
its expense will indemnify the Subscriber to a maximum combined value of the
value of the contract with respect to every claim that may be brought against
Subscriber by a third party for any alleged infringement under the laws of any
nation where services are provided or goods are delivered or used of any
patent, copyright, industrial design right, utility model or other industrial
and intellectual or proprietary right of such third party. Brickfield shall have no indemnification
obligation to the extent that any infringement arises out of (a) use of other
than the then-current, unaltered version of the Commercial Software, (b) based
on Subscriber's use of the Commercial Software other than in accordance with
this MSA and the documentation and specifications for the Commercial Software,
(c) Subscriber's combination of the Commercial Software with software or
hardware not provided by Brickfield, and (d) Subscriber's modification of the
Commercial Software not approved in writing by Brickfield. Upon Subscriber's request, Brickfield will
investigate and defend or otherwise handle such claim with counsel of its own
choosing, with reasonable approval from Subscriber, and provided that
Subscriber has provided prompt notice of the claim to Brickfield. Subscriber will cooperate in Brickfield's
investigation, defense and settlement of any claim and provide such information
and assistance to Brickfield as reasonably requested by Brickfield. Brickfield will pay all expenses and damages,
or settlement amounts that Subscriber may sustain by reason of each such
indemnified claim. In the event a claim
of infringement is asserted, Brickfield, may replace or modify the supplies or
services to make them non-infringing, provided that Subscriber approves such
replacement or modification, which shall not be unreasonably withheld, has
agreed in writing that such replacement or modification achieves the
substantive results of the original version or Brickfield may procure at its
expense a license for Subscriber to use the allegedly infringing material.
10. CONFIDENTIALITY.
(a)
Confidential Information. "Confidential
Information” is information that meets the requirements specified below for
Subscriber Confidential Information or Brickfield Confidential Information.
Information that does not meet these requirements is not Confidential
Information, regardless of any marking to the contrary. This Section 10 does
not apply to PII, which is governed by Section 11.
(b) Obligations
and Standard of Care
(i) Subscriber and Brickfield must protect the confidentiality of
Confidential Information of the other Party using the standard of care that the
Party holding the information would use in protecting the confidentiality of
its own confidential information, but not less than reasonable care. This
obligation will continue for a period of two years after cessation of services
under the most recent SOW. Brickfield must notify Subscriber
promptly in the event of an actual or reasonably suspected security breach,
unauthorized access, misappropriation, or other compromise of the security, or confidentiality.
(ii) The obligations
under Section 10(b)(i) do not apply to any information that: (A) is or becomes
publicly available through no breach of any MSA between Subscriber and Brickfield;
(B) is approved for release by the disclosing Party in a Notice; (C) is
lawfully obtained by the receiving Party from a third party without a duty of
confidentiality; (D) was already known to the receiving Party prior to its
disclosure; (E) is required to be disclosed by a valid court or arbitration order
and for the limited purpose of that particular court order; or (F) is
independently developed by the receiving Party's employees or agents without
access to Confidential Information. The exception in clause (E) will apply only
if the receiving Party has provided the disclosing Party with a Notice of the court
or arbitration order and has fully cooperated with the disclosing Party in
seeking confidential treatment for the disclosures.
(c)
Sharing with Related Companies and
Consultants. Subscriber and Brickfield
may share Confidential Information of the other Party with: (i) Brickfield's
Affiliates or Subscriber's Related Companies such as Moodle Pty Ltd and Sensus
Access APS; and (ii) their consultants, contractors, experts and agents;
provided, that in each case the person or entity with whom or which the
information is being shared has agreed in writing to be bound by
confidentiality and non-use provisions substantially similar to those specified
in this Section 11 and further provided that at no time may any Confidential
Information of Subscriber be provided to any Brickfield Affiliate or Brickfield
consultant, contractor, expert or agent that is a competitor, an affiliate of
or is controlled by any competitor of Subscriber. Each Party is responsible for
any breach of the confidentiality obligations hereunder by such Party's
Affiliates, Related Companies, consultants, contractors, experts and
agents.
(d) Sharing with Other Third Parties. Neither Subscriber nor Brickfield will share
any Confidential Information of the other Party with any third party, including
any competitor, affiliate of a competitor, or any person or entity that is
controlled by any competitor of the other Party, without the prior written MSA
of the other Party, except as may otherwise be permitted under the SOW or MSA.
(e)
Injunctive Relief. Each party acknowledges that breach of
confidentiality obligations hereunder could cause irreparable harm to the other
party for which monetary damages may be inadequate or difficult to ascertain,
and therefore, agrees that the other party will have the right to seek
injunctive relief for breach hereunder, without limiting any other rights or
remedies that may be available to it for any breach by the other party of its
confidentiality obligations hereunder.
(f) Disposal of Confidential Information: Except where prohibited by applicable
law, promptly upon the earlier of the completion of the Purchase Order or the
request of the disclosing Party, all of such Party's Confidential Information
in any medium in the receiving Party's possession or under its control will, at
no charge, be, at the disclosing Party's option (i) destroyed in a manner that
prevents its recovery or restoration, or (ii) returned without retaining any
actual or recoverable copies thereof, except for any backup media, which shall
be destroyed in accordance with the receiving Party's standard destruction
practices. The receiving Party's use or disclosure of any retained disclosing
Party Confidential Information will be limited to that required by applicable
law.
11. PERSONALLY
IDENTIFIABLE INFORMATION.
(a) "PII”
means information in any format about an identifiable individual including, but
not limited to, name, address, phone number, e-mail address, account number(s),
identification number(s), any other actual or assigned attribute associated
with or identifiable to an individual, and any information that when used
separately or in combination with other information could identify an
individual. "Subscriber PII” means PII furnished by Subscriber or a
Related Company to Brickfield, and PII developed or otherwise collected or
acquired by Brickfield in providing the Services to Subscriber, except for
Subscriber's employees' business contact information (name and business
address, business phone number, and e-mail address) used solely by Brickfield
for business contact purposes to carry out its obligations to deliver the Services,
unless considered PII under applicable law. "Brickfield PII” means PII that Subscriber receives in the course of
Brickfield's provision of Services, including PII in relation to Brickfield's
personnel, the personnel of Brickfield's Affiliates, or the personnel of any of
Brickfield's service providers but excludes any Subscriber PII. For the
purposes of this Section 12, "applicable law(s)” means any laws that apply to
the collector, controller, and processor of the PII.
(b) Use and Protection of Subscriber PII: Subscriber grants no right to Brickfield in
Subscriber PII except as expressly provided herein. Brickfield will use
Subscriber PII only to provide the Services to Subscriber or as specifically
directed in writing by Subscriber and will only reproduce Subscriber PII to the
extent necessary for these purposes. Brickfield must comply with all applicable
laws including any legally required codes of conduct, including those relating
to privacy, security, and data protection. Brickfield must protect the
security, integrity and confidentiality of Subscriber's PII using the standard
of care that Brickfield would use in protecting the security, integrity and
confidentiality of its own PII and confidential information, but not less than
reasonable care. Taking into account the state of the art and the risks that
are presented by the use of the PII, Brickfield will implement and maintain
reasonable and appropriate practices, procedures, and systems, including
administrative, technical, and physical safeguards to (i) protect the security,
confidentiality, and integrity of Subscriber PII; (ii) ensure against
anticipated threats or hazards to the security or integrity of Subscriber PII;
(iii) protect against unauthorized access to or use of Subscriber PII; and (iv)
otherwise comply with its obligations under Section 20 (Information Security).
In the case of Brickfield processing European PII (as defined herein), Brickfield
agrees take all measures required by Article 32 of the Regulation. Brickfield
will notify Subscriber promptly in the event of an actual or reasonably
suspected security breach, unauthorized access, misappropriation, or other
compromise of the security, confidentiality, or integrity of Subscriber PII,
including without limitation upon Brickfield's receipt of notice of a security
breach from a Permitted Service Provider and, where applicable, immediately
take action to prevent any further incident. Such notification must be made to
Subscriber as set forth in Section 20(d). Brickfield must implement the
remediation plan agreed to by the parties.
(c) Brickfield Disclosure of Subscriber PII: Brickfield's disclosure of Subscriber
PII is also subject to the following requirements:
(i) Brickfield will not
disclose to or allow access to Subscriber PII by its personnel except (A) as
required to provide the Services; (B) with Subscriber's prior written approval;
or (C) as required by applicable law and subject to prompt written notice to
Subscriber as provided in Section 12(c)(ii) below. When permitted, the
disclosure or access to Subscriber PII will be limited to the specific
information necessary for the individual to complete the assigned task. Brickfield
must inform personnel with access to Subscriber PII of the data protections and
confidentiality requirements set forth herein and train them on the proper use
and protection of Subscriber PII.
(ii) Brickfield will not sell,
disclose, provide, or exchange Subscriber PII to any third party, except that Brickfield may provide Subscriber PII to Brickfield's
service provider(s) if (A) Brickfield obtains Subscriber's written consent, (B)
such disclosure is required for Brickfield to obtain products or services
necessary for Brickfield to provide the Services, (C) such disclosure will be
limited only to the specific information necessary for the service provider to
complete the assigned task and (D) such service provider(s) sign a written MSA
with Brickfield with obligations at least as stringent as Brickfield's
obligations hereunder ("Permitted
Service Provider”). Brickfield is responsible for the acts or omissions of
its personnel and any Permitted Service Provider. Where disclosure is required
pursuant to (Y) federal, state, provincial, or municipal laws or regulations,
or (Z) the rules or regulations of any governmental agency, Brickfield must
provide Subscriber with prompt written notice in advance of the requested
disclosure to provide an opportunity for Subscriber to object to the required
disclosure. Brickfield must refer any person seeking access to any Subscriber
PII, including any subpoenas, interrogatories or request for production of
documents, to Subscriber.
(d) Disposal of Subscriber PII: Except where prohibited by applicable
law, promptly upon the earlier of the completion of the Purchase Order or the
request of Subscriber, all Subscriber PII in any medium in Brickfield's
possession or under its control will, at no charge to Subscriber, be, at
Subscriber's option (i) destroyed in a manner that prevents its recovery or
restoration, or (ii) returned to Subscriber without Brickfield retaining any
actual or recoverable copies thereof, except for any backup media, which shall
be destroyed in accordance with Brickfield's standard destruction practices. Brickfield's
use or disclosure of any retained Subscriber PII will be limited to that
required by applicable law.
(e) Cooperation: Brickfield will provide information to
Subscriber regarding Brickfield's compliance with this Section 11. The Parties
agree to modify this Section 11 as necessary from time to time for either Party
to comply with applicable laws.
(f) Related Company PII: If Brickfield processes the PII of
any Related Company when providing Services, such Related Company is an
intended third-party beneficiary of the Purchase Order terms, including this
Section 12, such terms will inure to the benefit of Related Company and Related
Companies will be entitled to enforce all such terms against Brickfield as if
each were a signatory to the SOW.
(g) Brickfield's Obligations with respect to Brickfield PII: Brickfield PII may be stored on
servers in the United States and may be accessible by Subscriber and
Subscriber's Related Companies, and their service providers globally. To the
extent required for Brickfield to comply with any applicable law, Brickfield is
responsible for providing any necessary notices to and collecting any necessary
consents from Brickfield's personnel and all other individuals to which Brickfield
PII relates to support such storage and as necessary for Subscriber and
Subscriber's Related Companies to perform their obligations and exercise their
rights under a Purchase Order. Brickfield's responsibilities under this
paragraph will apply with respect to any personnel of Brickfield's Affiliates
and any service providers of Brickfield involved in the provision of Services to
Subscriber.
(h) European PII.
(i) Where Brickfield processes PII to
which European Data Protection Law applies ("European PII"), Brickfield
will be a processor and shall be acting on behalf of Subscriber as controller
and will, in addition to compliance with the obligations set out in this PII
Supplement:
(A) ensure that any of its employees, agents or independent
contractors with access to European PII are subject to a contractual or
statutory obligation to keep European PII confidential;
(B) promptly notify Subscriber: (1) if Brickfield is legally required
to process European PII otherwise than as instructed by Subscriber before such
processing occurs, unless the law requiring such processing prohibits Brickfield
from doing so on an important ground of public interest; and (2) of any
instruction given by Subscriber in relation to European PII which, in Brickfield's
opinion, infringes applicable law;
(C) reasonably assist Subscriber: (1) in ensuring compliance with
Subscriber's obligation to respond to requests for exercising data subject's
rights under European Data Protection Law; and (2) in relation to any data
protection impact assessment, notification or regulatory consultation that
Subscriber is legally required to make in respect of European PII;
(D) not subcontract any of its processing operations under the
relevant Purchase Order unless Brickfield has: (A) obtained specific prior
written consent of Subscriber to do so; or (B) obtained general written authorization
of Subscriber to do so and has notified Subscriber of any intended changes
concerning the addition or replacement of service providers, giving Subscriber
the opportunity to object to such changes;
(E) not export any European PII which is processed within the
European Economic Area without the prior written permission of Subscriber and,
where permission is granted, taking such steps as Subscriber may reasonably
require in order to ensure such export is carried out in accordance with
European Data Protection Law.
(ii) Where there
is any conflict between this European PII section and the remaining sections of
this Supplement, this European PII section shall take precedence in relation to
the processing of European PII. For the purposes of this European PII section,
the terms "controller", "data subjects",
"processor" and "process" shall have the meaning given to
them by the European Union Regulation 2016/679 (the "Regulation").
The term "European Data Protection Law" shall mean the Regulation,
any applicable legislation of European Union Member States passed to implement
the Regulation and any other applicable European Union or Member State law
relating to data protection and the privacy of individuals.
(i) Additional Agreements: At the request of Subscriber, Brickfield
will work with Subscriber to enter into any additional provisions or data
processing that are required by applicable law.
12. ASSIGNMENT. Brickfield will not assign or delegate all or
substantially all of its substantive duties under a Purchase Order, nor
transfer to another any intellectual property right that is licensed to
Subscriber under Section 8, without Subscriber's prior written approval (which
Subscriber shall not unreasonably withhold or delay), except to a "Brickfield Affiliate”, which will mean
an entity that (a) controls, is controlled by, or is under common control with Brickfield
(for purposes hereof, "control” will mean ownership of not less than fifty
percent (50%) of all of the voting stock or legal and equitable interest in the
entity in question), (b) results from the merger or consolidation of Brickfield,
or (c) acquires all or substantially all of the stock and/or assets of Brickfield
as a going concern, provided that in all cases such assignment will not be to
an entity that is a competitor of, is affiliated with or is controlled by a
competitor of Subscriber.
13. EXCUSABLE DELAYS. An "Excusable
Delay” will mean any cause or event beyond a Party's reasonable control,
including any act of God, government act or restriction, labor disturbance,
general shortage of materials or supplies, riot, insurrection, or act of war or
terrorism. Insufficient funds on behalf of a Party will never be an Excusable
Delay. Subscriber may obtain the Services
covered by a SOW elsewhere for the duration of an Excusable Delay and a
reasonable period thereafter.
14. TERMINATION;
EXPIRATION.
(a) Unless a SOW specifically states otherwise, Subscriber may
terminate its purchase obligations under a SOW, in whole or in part, by prior
written notice of termination to Brickfield at least 30 days in advance of any
term or extended term, and in the event of such termination, Subscriber shall
not be entitled to a refund of any amounts paid or payable to Brickfield
pursuant to such SOW for services already performed and goods actually
delivered. Subscriber will have such
right of termination in (without a right of refund of any amounts previously
paid for services actually performed and goods actually delivered) if an
Excusable Delay continues for a period of thirty (30) days.
(b) Either
Party may terminate a Purchase Order for a material breach by the other Party
of the terms and conditions of the Purchase Order or these General Terms upon
written notice to the breaching Party, which is given no less than 30 days
prior to an effective date of termination, and which specifies the nature of
such breach. If the breaching Party cures such breach prior to the effective
date of termination, the SOW will not terminate and will continue in full force
and effect.
(c) Upon receipt of the notice of termination, or upon the
effectiveness of a termination under Section 14(a) above, Brickfield, unless
otherwise directed by Subscriber, will (i) terminate promptly all work under a SOW,
including all support services for the Commercial Software and any consulting
services pursuant to a SOW; (ii) transfer title, if and as specified in the SOW, and deliver
to Subscriber the finished work, the work in process, all materials relating to
the Services, prepared during the term and the parts and materials which Brickfield
produced or acquired and which Brickfield cannot use in producing goods for
itself or for others (excluding Commercial Software); (iii) verify/settle all
claims by subcontractors for actual costs that are rendered unrecoverable by
such termination and provided the recovery of materials in Brickfield's
possession is ensured; and (iii) take actions reasonably necessary to protect
property and/or data in Brickfield's possession in which Subscriber has an
interest in until disposal instruction from Subscriber has been received.
(d) Upon termination under this Section, Subscriber's obligation to Brickfield
will be (i) the SOW price for all finished work and completed services and any
unpaid license fees for the Commercial Software; and (ii) Brickfield's actual
cost of the work in process. On termination under this Section, Subscriber's
license to use the Commercial Software shall terminate.
15. RESOLVING
DISPUTES
(a) Negotiation. In the event of a dispute between the
parties relating to the Purchase Order, the one raising the matter in dispute
will notify the other in a written notice describing in sufficient detail the
nature of the dispute. Each Party will then appoint one or more representatives
to resolve the dispute. These representatives will promptly meet and negotiate
in good faith to reach a fair and equitable settlement. At the end of 60 days,
if no settlement has been reached, either Party may end discussions and declare
an impasse.
(b) Arbitration.
If the dispute has not been resolved
within 60 days pursuant to Section 18(a) above, then either Party is free to make
a demand for arbitration. The arbitration shall occur under the U.S. Federal
Arbitration Act and under the auspices of the American Arbitration Association
("AAA”) using AAA commercial rules, with the appointment of a single
arbitrator. The arbitration hearing
shall occur via Zoom or other acceptable video conference application
designated by the arbitrator, unless the parties mutually agree otherwise. The situs of the arbitration shall be deemed
to be in the State of Michigan with Michigan law applicable to the
dispute. The arbitrator shall have the
authority to award reasonable costs and attorney's fees incurred to the
prevailing party.
(d) Principal
Place of Business Outside the U.S. If the principal place of business of
Subscriber is outside of the United States, the applicable provisions of the International
Centre for Dispute Resolution ("ICDR”) under the AAA shall administer the
arbitration under the International Arbitration Rules, shall occur in the
English language, shall occur via Zoom or other acceptable video conference
application designated by the arbitrator, and shall be governed under the laws
of Ireland.
16. Relationship. Brickfield is
an independent contractor to Subscriber, not an employee or agent, and neither
Subscriber or Brickfield shall represent or hold itself out otherwise.
17. MISCELLANEOUS
(a) Continuing Obligations. The
obligations of Subscriber and Brickfield shall survive the expiration or
termination of this Agreement where such provision of an MSA or SOW suggest or
imply such survival.
(b) Severability.
Any term or condition that is declared unlawful or unenforceable by an arbitrator
or a court of competent jurisdiction will not apply. The unenforceability of
any such term or condition will not affect the enforceability of any other term
or condition.
(c) No Third-Party Rights. Except as expressly provided the Services neither
gives nor creates any third-party beneficiary rights or any other rights
whether in law or equity to any person or entity other than Subscriber and its
Related Companies or Brickfield and its Affiliates.
(d) Notices. All notices, consents, requests and demands
which may or are required to be given by either Party to the other hereunder
("Notice”) will be in writing and may be signed manually or electronically. All
notices by Subscriber are valid only if signed by a representative of
Subscriber. Notices may be given by (i) first class mail; (ii) courier service;
(iii) fax; (iv) standard email; or (v) Subscriber's electronic system for
communication. A notice using method (i) or (ii) is effective as of the date of
delivery at the address for the applicable Party set forth on the SOW, and
using methods (iii), (iv) or (v) is effective as of the date of transmission.
(e) Entire MSA; Modification. Except as specifically state in
this MSA, they supersede all previous MSA's between the Parties and together SOW's
contains the entire agreement between them. No other representations, promises,
conditions, warranties, or understandings, whether expressed or implied, will
be binding upon either Party, and no provision of this MSA may be waived,
altered, or amended except by a writing signed by the Parties that specifically
identifies the Section of this MSA to be waived, altered or amended or an
attendant SOW as agreed by the Parties.
(f) NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY HEREUNDER FOR (A) ANY LOSS OF PRODUCTION, BUSINESS
INTERRUPTION, DATA, AS WELL AS ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT
OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF
SUCH LOSS OR DAMAGES, OR (B) DIRECT DAMAGES IN EXCESS OF THE GREATER OF THREE (3)
TIMES THE FEES PAYABLE UNDER THE SOW OR $1,00,000,00, WHICHEVER IS LESS; PROVIDED THAT THESE LIMITATIONS ON DAMAGES
SHALL NOT APPLY TO (I) EITHER PARTIES’ BREACH OF ANY CONFIDENTIALITY
OBLIGATIONS, (II) EITHER PARTIES’ BREACH OF ANY PRIVACY OBLIGATIONS; (III)
BREACH OF ANY INTELLECTUAL PROPERTY INDEMNITY,
(IV) BREACH OF AN INDEMNITY OBLIGATION FOR PERSONAL INJURY OR PROPERTY
DAMAGE, OR (V) ANY CLAIMS THAT RESULTS FROM THE, FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL MISCONDUCT.