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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.