As of March 2019. This Master Terms of Service (this “Agreement”) is hereby acknowledged and agreed to by YEMORA, LLC, a Serbia limited liability company (“Yemora”) and YOU, as a client of Yemora (“Client”), as of the effective date of any applicable SOW (defined below) (the “Effective Date”); each of Yemora and Client shall be referred to herein as a “Party” and, collectively as, the “Parties”.
Whereas, Client desires to engage Yemora to provide, produce and deliver, as applicable, the Services and the Work Product, each as more particularly described in this Agreement.
Whereas, this Agreement as a “master” form, allows the Parties to contract for multiple purposes and projects through the issuance of multiple SOWs (defined below), without having to renegotiate the general terms and conditions contained herein.
Now Therefore, in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed such terms in Appendix, attached hereto
2. SERVICES AND WORK PRODUCT.
2.1. Statements of Work.
This Agreement shall apply to the Services and the Work Product, each of which shall be more particularly set forth in one or more statements of work or any other writing (in each instance, a "SOW"), which in all events shall expressly reference and incorporate this Agreement and be executed by the Parties. Each SOW shall set forth the scope and timing of production and delivery of the Services and the Work Product and the fees and expenses payable to Yemora in connection therewith.
2.2. Change Orders.
In the event either Party desires to modify any SOW, such Party shall provide the other Party with a written change order (each, a "Change Order"), specifying any such modifications as well as any impact to the respective fees and expenses payable to Yemora in connection therewith. The Parties shall endeavor to promptly and amicably negotiate and finalize any such Change Order; provided, that, no Change Order shall be effective unless and until it is duly executed by the Parties.
2.3. Yemora Resources.
Yemora shall be free to use whatever Yemora Personnel, means, and methods (collectively, "Yemora Resources”), Yemora deems commercially appropriate for the production and delivery of the Services and the Work Product under this Agreement. Except as reasonably required by Client and expressly set forth in any SOW, Yemora may perform its obligations hereunder at any location Yemora deems commercially appropriate.
This Agreement shall commence on the Effective Date and continue for the greater of: (i) three (3) years; or (ii) for so long as any SOW has not been fully performed and remains in full force and effect (the "Term"), unless earlier terminated by a Party upon the breach by the other Party of this Agreement or any SOW, which remains uncured for a period of thirty (30) days beyond written notice thereof.
4. FEES AND EXPENSES
Client shall pay Yemora all fees ("Fees") due to Yemora for the production and delivery of the Services and the Work Product as more particularly set forth in the applicable SOW. Each SOW shall expressly identify either a Fixed Fee or Time & Materials billing engagement. In the absence of any such express statement it shall be deemed to indicate a Time & Materials billing engagement. Yemora reserves the right to change the hourly rates used to calculate its Fees upon prior written notice to Client; provided that no such change in Fees shall apply to any then outstanding SOW without the prior written consent of Client, which may be withheld in Client’s sole and absolute discretion. In the event the Parties expressly agree, in any particular SOW, to alternative payment terms, including, without limitation, to the payment of a retainer, such alternative payment terms shall prevail.
Client shall reimburse Yemora all of its reasonable out-of-pocket expenses ("Expenses"), incurred in connection with the production and delivery of the Services and the Work Product as more particularly set forth in the applicable SOW and in accordance with Client’s internal and written policies and procedures.
Except as otherwise set forth in any SOW, all invoices for Fees shall be sent to Client on or about the first (1st) day of every month and shall reflect all Fees due for the immediately preceding month. Client shall pay each invoice upon receipt thereof. In the event of any dispute with regard to a portion of an invoice, the undisputed portion will be promptly paid by Client. Any undisputed amount not promptly paid as provided in this Section 4, shall bear interest at the lesser of three percent (3.0%) per month or the highest rate allowed by law.
Client shall pay any excise, sales, use or other similar tax based upon products, materials or services rendered pursuant to this Agreement, any of which may be paid by Yemora and added to Client’s monthly invoice. Client shall not be obligated to pay any taxes based on Yemora's net income or on any property owned by Yemora.
5. PROPRIETARY RIGHTS
Until Client’s payment of all applicable and undisputed Fees and Expenses as expressly set forth in any applicable SOW, Client’s use and ownership of the Work Product shall be limited to a revocable at-will license. Upon Client’s payment of all applicable Fees and Expenses, the Work Product shall become the property of Client, and shall be deemed to be “works made for hire” under Serbia Copyright law. To the extent the Work Product may not, by operation of law, be deemed “works made for hire”, Yemora hereby assigns to Client the ownership of all right, title and interest in and to such Work Product, including but not limited to all Intellectual Property Rights therein. To the extent any Yemora Background IP is incorporated into the Work Product, Yemora hereby grants Client a non-exclusive, perpetual, worldwide, royalty-free license to use such Yemora Background IP, solely for the proper use and maintenance of the Work Product.
6. CLIENT OBLIGATIONS
6.1. Software License
To the extent applicable to the Services and the Work Product, Client hereby represents, warrants and covenants, as the context requires, that Client: (i) has (or shall have prior to Yemora’s production and delivery of any such Services and Work Product), entered into one or more valid license agreements with the applicable software vendor (collectively, the "Software License"), as may be implicated or necessary in connection therewith; (ii) shall validly maintain any such Software License for so long as Yemora continues to produce and deliver the Services and the Work Product pursuant to this Agreement and any applicable SOW; and (iii) shall be solely responsible and primarily liable for the granting and removal to Yemora Personnel of access to any platform environment granted by any such Software License.
6.2. In General
To the extent Client fails to comply with any of Client’s Obligations, the failure of which results in the necessity to modify the scope of the Services and/or causes an actual delay in their production and delivery, Yemora shall have the right, in its sole and absolute discretion and as the context requires, to: (i) require Client to enter into and execute a Change Order memorializing any such modification in scope; and/or (ii) reallocate Yemora Resources to other Yemora client engagements; provided, that, no such reallocation shall affect any other rights or obligations of the Parties as set forth in this Agreement. In the event of any such reallocation, Yemora agrees to redeploy Yemora Resources to recommence Yemora’s production and delivery of the Services and the Work Product on a future date (such date, the "Redeployment Date"), which shall be reasonably and mutually agreed upon by the Parties, but in no event less than two (2) weeks following Yemora’s receipt of written notice from Client expressly setting forth Client’s request for such recommencement and the agreed upon Redeployment Date.
Yemora warrants: (i) the Services shall be performed in a competent and workmanlike manner; and (ii) the Work Product shall materially conform, at the time of delivery, to any requirements and specifications expressly set forth in any applicable SOW (the "Warranty"). With respect to the Work Product, Client shall have within the lesser of: (A) fifteen (15) days following its delivery; or (B) its modification by Client or any third party on behalf of Client (in either instance, the "Warranty Period"), to notify Yemora in writing of any alleged breach of the Warranty, which if substantiated shall be remedied by Yemora at Yemora’s sole cost and expense. For the avoidance of doubt, Client shall incur the cost and expense for any requests made outside of the Warranty Period or which fall outside of the scope expressly set forth in the applicable SOW. Except as provided in this Section 7, Yemora does not make any express or implied warranties with respect to the Services, the Work Product, Third Party Materials or related services, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST BUSINESS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT FOR ANY CLAIM SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO YEMORA UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.
Commencing on the Effective Date and continuing for a period of one (1) year following the termination or expiration of all SOWs entered into under this Agreement, neither Party shall, directly or indirectly, solicit any personnel of the other Party for employment. The foregoing restrictive covenant shall not prohibit either Party from posting general and public employment solicitations not specifically targeted at the employee(s) of the other Party. The Parties hereby acknowledge and agree that the restrictions set forth in this Section 9 are reasonable and necessary to protect the business interests of each Party and are narrowly drawn, are fair and reasonable in time and territory, and place no greater restraint upon the Parties than is reasonably necessary.
10.1. Prohibition on disclosure
Each Party agrees at all times to hold Confidential Information of the other Party in strict confidence and shall not use such Confidential Information for any purpose other than as necessary for each Party to exercise its rights and fulfill its obligations as set forth in this Agreement. Each Party agrees to protect and keep all Confidential Information of the other Party confidential in the same manner it protects the confidentiality of its own Confidential Information (at all times exercising at least a reasonable degree of care). If either Party is compelled by law to disclose Confidential Information of the other Party, it shall provide the other Party with prior notice of such compelled disclosure (to the extent legally permitted), and reasonable assistance, at such other Party’s sole cost and expense, to the extent such Party wishes to contest the compelled disclosure thereof.
10.2.1. Loss and Disclosure
Each Party shall immediately notify the other Party upon the discovery of any loss or unauthorized disclosure of Confidential Information of the other Party.
Confidential Information shall not be reproduced in any form except in accordance with the provisions of this Agreement. Any reproduction of Confidential Information shall remain the property of the disclosing Party and shall contain any and all confidential notices or legends, which appear on the original.
10.2.3. Return and Retention
Upon the request of a Party, the other Party shall destroy or return (at its election), all received Confidential Information, without retaining any copy thereof; provided, that, a Party may retain one (1) copy of any such Confidential Information if such retention is required by applicable law or in accordance with its respective internal compliance policies in which event such copy may be retained in accordance therewith and in all events in compliance with the confidentiality obligations of this Agreement.
10.3. Limitation on rights
The disclosure of Confidential Information hereunder shall not result in any right or license in such Confidential Information being granted by the disclosing Party to the receiving Party. Neither Party nor their respective representatives: (i) have made or make any representation or warranty hereunder, expressed or implied, as to the accuracy or completeness of the disclosed Confidential Information; or (ii) shall have any liability hereunder with respect to any errors or omissions in connection with the disclosed Confidential Information.
The Parties acknowledge and agree that the unauthorized disclosure of Confidential Information will cause irreparable damage to the non-disclosing Party and should either Party breach this Agreement, the other Party shall be entitled to seek injunctive relief, as well as any other relief that may be granted by a court of competent jurisdiction.
10.5. Length of obligations
The obligations of the Parties set forth in this Agreement with respect to Confidential Information shall continue from the Effective Date until such Confidential Information is generally available to the public through no fault of the receiving Party.
11. Reference rights
In consideration for the Fees, Client agrees to accept reference calls and otherwise act as a reference for Yemora in accordance with this Section 11, and hereby acknowledges and agrees that Yemora may develop and publish a case study highlighting the Services provided by Yemora to Client in Yemora’s promotional materials including, without limitation, its client lists, brochures, white papers and electronic media. Additionally, the Parties may issue a mutually agreed upon press release regarding Client’s engagement of Yemora. The foregoing shall be subject at all times to Section 10 of this Agreement. Each Party hereby grants to the other Party a nonexclusive, non-transferable, royalty-free right and license to copy and display such Party’s trademarks and logo (subject to the terms and conditions of such Party’s standard trademark usage guidelines), for use in such Party’s client/vendor lists, websites, case studies, and other similar promotional media.
12. Force Majeure
Yemora shall not have any liability for any failure to perform its obligations under this Agreement resulting in whole or in part from an Act of God (including, without limitation, earthquakes, tornados, hurricanes, blizzards, floods or other storms or natural disasters), epidemic, fire, military event, act of terrorism, third party criminal activity, blockade, embargo, labor dispute, change in municipal, county, state or national ordinance or law, executive, administrative or judicial order, or failure of electricity, telephone or internet service. If any of the foregoing events occur, Yemora’s sole obligation will be to take reasonable steps to minimize delay or damages and to notify Client of such event as soon as may be reasonably practicable.
13.1. Duly Authorized.
Each Party represents and warrants that it has the right and authority to enter into this Agreement.
13.2. Entire Agreement
This Agreement constitutes the complete and exclusive state of the terms and conditions of the agreement of the Parties and supersedes all oral or written proposals and all other communications, understandings, or agreements between the Parties relating thereto.
In the event of a conflict between the terms and provisions of this Agreement and those in any SOW, the terms and provisions of this Agreement shall prevail.
13.4. Modifications and Waiver
No modification of, amendment, or addition to, this Agreement or any SOW is valid or binding unless set forth in writing and executed by an authorized representative of each Party. Any waiver of any right or remedy under this Agreement must be in writing and executed by an authorized representative of each Party. No delay in exercising any right or remedy shall operate as a waiver of any right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
13.6. Relationship of Parties
This Agreement does not create a joint venture or partnership between the Parties and no Party is, by virtue of this Agreement, authorized as an agent, employee or representative of the other Party.
How to Contact YEMORA
Chief Privacy Officer
Terazije 14, pp5
Republic of Serbia