Master Services Agreement

This Master Services Agreement (“Agreement,” or “MSA”) is entered into as of the Effective Date by and between ComplianceLine, LLC d/b/a Ethico, a Delaware Limited Liability Company, with its principal place of business at 8615 Cliff Cameron Dr Ste 290, Charlotte, North Carolina 28269, United States of America (“Ethico”) and the entity signing the Order Form into which this MSA is incorporated (“Client”) (each individually, “Party” and, collectively, the “Parties”). In consideration for the promises and covenants contained herein, the Parties hereby agree as follows:

 

1. Scope and Precedence

a. This Agreement includes any attached Order Form(s) and Exhibits, including any Data Processing Agreement (“DPA”) and Business Associate Agreements (“BAA”) or any such document that references this Agreement and is signed by a duly authorized representative of both Parties. 

b. The Order Form(s) set forth the products and services (the  “Services”) that Ethico will provide to Client and the manner in which they will be provided. Certain Services which are not recurring and for which only one-time Fees apply may be added pursuant to a simplified ordering document (“Change Order”). Reference to any Order Form in this Agreement includes the term Change Order. 

c. In the event of any conflict or inconsistency between the terms of documents that make up part of the Agreement, the following shall be the order of precedence: the Order Form, the DPA and/or BAA with regard to the subject matter therein, any other Exhibits, and this MSA. 

d. Applicable Law shall mean all applicable laws, rules, and regulations applicable to either Party in the execution, delivery, and performance of this Agreement. 

 

2. Grant of Use

Ethico is providing its Services to Client for the sole purpose of Client utilizing these services to design, implement, manage, and/or continuously improve Client’s internal compliance and ethics program, human resources, or other internal risk-management activities. All applicable licenses grants are set forth in this Agreement and any associated Order Form for the applicable Services and terminate upon expiration or termination of this Agreement or the relevant Order Form.

3. Term

a. Contract Effective Date. This Agreement shall be effective as of the Contract Effective Date, which is the date that the duly authorized representatives of both Parties have signed the MSA.

b. Initial Term and Renewal Terms. The Initial Term of this Agreement shall commence on the Contract Effective Date and end on the last day of the Initial Term as set forth in the applicable Order Form under “Service Quote.” The Agreement shall automatically renew for successive one-year periods (each a “Renewal Term”). Either Party shall have the right not to renew, provided that the other Party is notified in writing at least sixty (60) days prior to the end of the Initial Term or each Renewal Term.

4. Fees

a. Fees. All monies due to Ethico for its Services provided under this Agreement (“Fees” or “Total Subscription Fees”) are set forth in the Service Quote section of the applicable Order Form, including One-Time Fee and Annual Subscription Fees (also referred to as “Recurring Fees”). The Annual Subscription Fee will remain firm for the Initial Term. Upon the date of each Renewal Term, the Annual Subscription Fee for the same Services shall be capped at no more than an annual 8% increase. 

b. Fee Basis and Renegotiation. Client acknowledges and agrees that the pricing is based on the information provided to Ethico by Client, and that late or incomplete information, changes in key personnel, undisclosed complexities including complexities related to customization work, tax/regulatory changes, or any other factors beyond reasonable control could necessitate price adjustments in the Fees. In addition, the following criteria constitute grounds for Ethico to renegotiate its annual Subscription Fees: 1) Client exceeding service volume by more than 5% as set forth in the Order Form in any contract year or 2) Client’s employee count changing by more than 10% from the contracted amount as set forth in the Order Form. Provided that Client is in good standing, with all monies due to Ethico paid in full, Client may request to renegotiate Fees upon meeting certain criteria as defined in the applicable Order Form. Client must notify Ethico in writing at least sixty (60) days before the start of a Renewal Term that they wish to renegotiate the Fees. Client’s request for any renegotiated Fee amounts must be mutually agreed upon by both Parties, in writing and signed by each Party’s duly authorized representative, by the date of the Renewal Term, then the Annual Subscription Fee for the Renewal Term as set forth under this Agreement shall continue to apply. 

c. Taxes. All Fees exclude taxes, including any, but not limited to, any sales, use, value-added, or withholding taxes and any levies or duties or other government assessments, and Client acknowledges and agrees it is responsible for paying any applicable  taxes related to this Agreement directly to the relevant taxing authority.

5. Payment

a. Timing. The One Time Fee and Annual Subscription Fee for the Initial Term are payable upon execution of this Agreement, and thereafter annually and in advance on or before the date of each Renewal Term for all subsequent years. For all other Fees, Client agrees to pay Ethico within thirty (30) days of issuance of an undisputed invoice. 

b. Form of Payment. Acceptable payments include ACH, bank transfers, checks, purchase cards, credit cards, or any other payment methods mutually agreed upon by both Parties. If a purchase card, credit card, or other fee-laden payment method is utilized to pay the Fees, a 3% charge will be added to the payment amount due from Client. Payments must be made at the address designated on the invoice provided by Ethico.

c. Disputed Fees. Client agrees that any objection to any invoice is waived unless Client provides a written objection within ten (10) days following receipt of said invoice stating the basis for the objection. 

d. Nonpayment or Late Payment. If payment is not received by the due date on the invoice, Client will be assessed a late fee of the lesser of (i) 1.5% per month or (ii) the highest rate allowed by law, on any unpaid balances. Client agrees to reimburse Ethico for any expenses incurred, including interest, court costs, and reasonable attorneys’ fees, in the collection of any Fees that are not under good faith dispute by Customer. Ethico reserves the right to suspend or terminate Services under this Agreement for nonpayment of Fees after sixty (60) days following the nonpayment of an invoice. Client acknowledges and agrees that if any Ethico services are suspended or terminated for any reason, including due to Client’s late payment or nonpayment of Fees, Client is solely responsible for any failure to meet any legal, regulatory, or contractual obligations or deadlines, including any fees, penalties, or interest that may be assessed against Client, to the extent that Client was relying on Ethico’s Services in whole or in part to meet any such obligations or deadlines. In the event of suspension or termination due to nonpayment or any other valid mechanism for termination as set forth in this Agreement, Client agrees to pay Ethico all Fees due, in addition to any expenses incurred in the collection of these Fees, at the time of said suspension or termination and to pay all monies due to Ethico in full prior to any reinstatement of or additional Services. 

6. Confidential Information

a. Definition. “Confidential Information” means any information disclosed at any time by either Party, directors, officers, employees, and agents (collectively, “Representatives”), to the other Party or its Representatives in anticipation of or during the Parties’ relationship, either directly or indirectly, in writing, orally, or by any other means, including, without limitation, trade secrets, operational procedures, fee schedules, passwords information concerning technology, marketing, products, strategies, planning, finances, employees, product roadmaps, customer lists, service or product purchases or modifications, performance agreements and documentation, performance results, pricing, any information marked as “confidential” or “proprietary,” information Client puts into the Services intended to be confidential (including but not limited to passwords, personnel files, internal investigations and assessments) and other confidential or proprietary information that a reasonable person would understand to be confidential or proprietary. Confidential Information excludes the following:

Ⅰ. Information that was publicly known and that the disclosing Party made generally available in the public domain prior to the time of disclosure or that becomes known through legal or other public proceedings;
Ⅱ. Information the receiving Party already prior knowledge of at the time of disclosure without a breach of any third Party’s obligations;
Ⅲ. Information the receiving Party obtains from a third Party without a breach of such third Party’s confidentiality obligations at the time of disclosure; and
Ⅳ. Information the receiving Party independently develops without use of or reference to the disclosing Party’s Confidential Information.

b. Confidentiality Obligations. Each Party shall protect and not disclose the other Party’s Confidential Information and use it only as permitted in connection with this Agreement. Each Party shall treat the other Party’s Confidential Information with the same care used to prevent the unauthorized disclosure of its own Confidential Information, which shall not be less than the care a reasonable businessperson would undertake in similar circumstances. Each Party shall only disclose Confidential Information to their Representatives if the following circumstances have been met: (i) the Confidential Information is necessary for Representatives to fulfill their job duties and (ii) the Representatives are bound by confidentiality obligations similar to or more restrictive than the obligations in this agreement. Except with regard to Representatives who meet the conditions for disclosure set forth above or as required under Applicable Law, and as set forth in any applicable DPA, BAA, or other Exhibit, Confidential Information shall not be disclosed to any third party without the written consent of the Party who owns the Confidential Information. Each Party shall be liable for their respective Representative’s breach of this section. In the event that a Party is required to disclose the other Party’s Confidential Information pursuant to a subpoena or any Applicable Law (“Disclosing Party”), the Disclosing Party shall promptly inform the Party whose Confidential Information may be disclosed, in writing, of the circumstances and cooperate, to the extent permitted by Applicable Law, with that Party’s efforts to seek a protective order or other relief.

 

7. Destruction and Return of Client Information

a. Definition. Client Information is information that Ethico collects, receives, or processes from Client pursuant to fulfilling the purposes of this Agreement. Client Information is considered a sub-set of Confidential Information and includes Personal Data (as defined below) but does not include Usage Data.

b. Destruction. Within ninety (90) days of the completion of Ethico’s services for Client and/or termination of this Agreement, or earlier upon Client’s written request following the termination of the Agreement, Ethico shall delete or destroy all Client Information in its possession in such a manner that Client Information cannot be read or reconstructed, except that 1) Ethico shall retain one secured copy of Client Information transferred under this Agreement for the purpose of establishing compliance with any Applicable Laws or for maintaining or defending any disputes related to this Agreement and 2) Ethico shall retain any Client Information stored in its backup infrastructure for business continuity, which will be deleted pursuant to Ethico’s data retention schedule. Ethico shall continue to abide by its Confidentiality and Data Privacy obligations for any Client Information it continues to hold beyond the termination or expiration of the Agreement. Client agrees and acknowledges that if it does not provide written instructions to Ethico directing that Client Information be destroyed that Ethico may retain and delete such Client Information according to its internal data retention policies.

c. Return of Client Information on MyCM. Client understands and acknowledges that it has the ability to export its own Client Information from MyCM at any time and at no additional cost prior to the expiration or termination of the Agreement. If Client decides not to export Client Information on its own and instead elects to have Ethico perform the work of exporting Client Information from MyCM to Client, these actions by Ethico will be completed at Client’s expense, pursuant to an Order Form which shall specify Ethico’s standard export process of Client Information or any additional modifications or customizations requested by Client. Upon written request, Ethico shall provide to Client a written certification by an officer of Ethico confirming that the return or destruction of Client Information has been completed.

8. Data Privacy

a. Relationship Between the Parties. Client shall act as Controller (or a “Business”) and Ethico shall act as Processor (or a “Service Provider”), as defined under Applicable Laws related to data privacy and data protection. Ethico shall process information that is used or could be used to identify an individual, directly or indirectly (“Personal Data”) at the written direction of Client, including what is contemplated in this Agreement and in order to improve Ethico’s Services. Client understands that as Controller it is ultimately responsible for obtaining, if required, any consent of any individual whose Personal Data may be processed pursuant to this Agreement (“Data Subject”).

b. Compliance with Applicable Privacy Laws. Both Parties agree to comply with all applicable data privacy laws, rules, and regulations (“Applicable Privacy Laws”). 

c. Purpose of Processing and Written Instructions. The purpose of such processing Personal Data shall be to fulfill the terms of this Agreement. Client’s written instructions to Ethico shall include any instructions or processes set forth or contemplated in this Agreement, including any attached Order Forms or Exhibits, and other written instruction later provided by Client via email, except where Ethico believes that instruction would violate Applicable Privacy Laws, in which case, Ethico will promptly inform Client of its objection to the instruction. 

d. Data Transfers. Client acknowledges and agrees that Personal Data is transferred to and stored in the United States of America (“United States”). Ethico is self-certified under the Data Privacy Framework (“DPF”), which it utilizes as its valid data transfer mechanism for any Personal Data that is transferred from the United Kingdom, European Economic Area, and/or Switzerland to the United States. Client will promptly notify Ethico if it believes that additional controls or other measures need to be put in place related to data transfers between any other jurisdictions  in order to comply with Applicable Privacy Laws. 

e. Authorization to Use Sub-Processors. Client agrees that Ethico shall be authorized to use third-parties to process Personal Data (“Sub-Processors”) in the performance of this Agreement. Ethico agrees that it shall only use Sub-Processors who agree to abide by the same or similar data privacy provisions in this Agreement when processing Personal Data on behalf of Client.

f. Security of Personal Data. Ethico agrees to use reasonable methods and safeguards to protect Personal Data, including implementing, maintaining and applying appropriate technical and organizational security measures to protect against any unauthorized collection, use, or disclosure of Personal Data, which includes maintaining SOC 2 certification. 

g. Notification of Breach. In the event of a breach of Personal Data by Ethico or its Sub-Processors, Ethico shall promptly notify Client of the breach and take the necessary steps to identify, prevent, and mitigate the breach. Following prompt notification to Client, Ethico shall continue to cooperate with Client to provide additional information that Client may reasonably request from Ethico and/or its Sub-Processors related to said breach.

h. Confidentiality and Limited Access to Personal Data. Ethico requires all its employees to sign confidentiality agreements at the start of their employment and complete an annual privacy training. Ethico maintains policies and procedures to ensure the security and confidentiality of Personal Data. Ethico restricts access to Personal Data to only those Ethico employees and Sub-Processors who need access to such Personal Data in order to complete the requirements of this Agreement. 

i. Data Subject Rights. Both Parties agree to respect the applicable legal rights of Data Subjects regarding their Personal Data. Should a Data Subject make a request directly to Ethico to exercise their privacy rights, Ethico, as the Processor, will promptly inform Client of the request, and Client will promptly (i) respond to the request directly or (ii) provide written instruction to Ethico on how to respond. 

j. Personal Data Deletion. Client is responsible for directing Ethico when to delete any Personal Data that Ethico may hold throughout the course and following termination of the Ethico Agreement. Except as otherwise agreed upon in writing between the Parties, the return and deletion of Personal Data shall be subject to the same procedures and restrictions as set forth in the Destruction and Return of Client Information section of this Agreement. 

9. Usage Data

Client authorizes Ethico, as part of the Services, to access and compile information related to the use of Services (“Usage Data”) to operate, analyze, improve, support, and report on the Services, including benchmarking and reports. Ethico will not disclose Usage Data externally unless it is a) de-identified so that it does not identify any entity or individual and b) aggregated with data across other customers.

 

10. Intellectual Property

a. Ownership. Each Party shall retain all right, title, and interest in any copyrights, trademarks, patent rights, and other intellectual property or proprietary rights it has acquired or developed prior to or outside the scope of this Agreement. Neither Party will acquire any right, title, or interest in the intellectual property rights of the other Party by virtue of its performance under the Agreement. For the avoidance of doubt, Client shall retain all right, title, and interest in any intellectual property that it inputs into Ethico’s proprietary software or that it provides to Ethico to process under the terms of this Agreement, including any derivative works. Notwithstanding the foregoing, Ethico shall have the right to access and compile Usage Data. 

b, No Implied Rights. Unless expressly granted in writing, all intellectual property rights remain the exclusive property of the original owner.

c. Limited License for Formatting. Client grants Ethico, for the Term of the Agreement, a limited, non-exclusive, non-transferable, royalty-free license to format Client’s intellectual property, specifically its trademarks and service marks, for optimal display and functionality within the Services.

d. Name and Trademark Usage. Ethico may use Client’s name, logos, and trademarks in its promotional materials, including advertising and marketing materials, sales presentations, publications, and communications such as press releases and emails for the purposes of revealing that Ethico provides services to Client. Client may revoke such usage at any time upon written notice to Ethico. 

11. Liability Insurance

a. Minimum Insurance Coverage. During the term of this Agreement, Ethico will maintain, at its own expense, the minimum amounts of insurance coverage as specified below:  

b. General Comprehensive Liability Insurance of in an amount of at least $1,000,000 for bodily injury (including death) and property damage.

c. Commercial General Liability (“CGL”) and/or Umbrella Liability insurance written on ISO Occurrence form CG 00 01 12 07 or equivalent, written on an occurrence form, with a limit of not less than $2,000,000 per each occurrence.

d. Professional Liability/Errors and Omissions coverage covering the liability for any financial loss due to negligent error or omission of Ethico or its employees and agents with a policy limit of $2,000,000 per event. 

e. Cyber Liability including network security and privacy risks. Coverage will include unauthorized access, failure of security, wrongful disclosure, collection, or other negligence in the handling of Confidential Information, privacy perils, data breach expenses, and consumer notification expenses, in an amount not less than $5,000,000.

f. Workers Compensation and Employers Liability Insurance meeting minimum statutory requirements.

g. Commercial Umbrella and/or Employers Liability Limits of no less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease.

h. Automobile Liability and/or Umbrella Liability insurance with limits of not less than $1,000,000 each accident.

12. Warranty and Disclaimer

a. Warranty. Ethico warrants that (i) its Services will be provided in a professional manner in accordance with industry standards and (ii) the Services will conform with the descriptions set forth in any applicable Order Form. Ethico’s exclusive obligation, and Client’s sole remedy, for breach of these warranties will be (i) to re-perform the Services at no additional charge, and (ii) at Ethico’s sole option, to repair or replace any such non-conforming Services or to refund the Fees paid by Client for such non-conforming Services. Any replacement Services are subject to this same warranty. These warranties will not apply if the Services are: (i) modified or altered in any way (other than by Ethico or with the specific prior written consent of Ethico); (ii) not updated with the corrections, patches, fixes, updates, improvements or enhancements that Ethico may make available from time to time; (iii) used in any manner or for any purpose not specifically permitted by this Agreement, or (iv) disrupted due to virus, malicious software, or any other disruptive programs that are introduced, intentionally or unintentionally.

b. DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ETHICO DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE SERVICES, DELIVERABLES, OR ETHICO’S PERFORMANCE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY OR VERACITY OF INFORMATION, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE THAT MIGHT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE BETWEEN THE PARTIES. ETHICO EXPRESSLY DOES NOT WARRANT THAT ITS SERVICES MEET THE SPECIFIC REQUIREMENTS OF ANY FEDERAL, PROVINCIAL, STATE, OR LOCAL LAWS, REGULATIONS, OR GUIDELINES.

c. NO LEGAL SERVICES. CLIENT ACKNOWLEDGES AND AGREES THAT ETHICO IS NOT ENGAGED IN THE PRACTICE OF LAW AND THAT ANY INFORMATION PROVIDED IN ITS SERVICES OR PROVIDED BY ITS EMPLOYEES OR AGENTS MAY NOT BE RELIED UP ON AS LEGAL ADVICE. ETHICO SHALL HAVE NO LIABILITY TO CLIENT OR ANY OTHER PERSON OR ENTITY RELATING TO OR RESULTING FROM THE USE OF ITS SERVICES AND THE INFORMATION INCLUDED THEREIN, OR ANY ERRORS IN OR OMISSIONS THEREFROM. ETHICO WILL NOT BE LIABLE IN RESPECT OF ANY DECISIONS MADE BY CLIENT AS A RESULT OF THE PERFORMANCE BY ETHICO OF ITS SERVICES.

d. CLIENT RESPONSIBLE FOR USE OF SERVICES. CLIENT ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, CLIENT IS FULLY RESPONSIBLE FOR ITS USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO ANY USE OR LACK OF USE THAT MAY RESULT IN ANY STATUTORY OR REGULATORY PENALTIES OR FINES OR LAWSUITS. CLIENT ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICES DO NOT GUARANTEE THAT CLIENT WILL MEET ANY SPECIFIC REQUIREMENTS OF ANY SPECIFIC LAW, REGULATION OR GUIDELINE AND THAT IT IS THE RESPONSIBILITY OF CLIENT TO UTILIZE THE PRODUCTS OR SERVICES IN A WAY THAT MEETS ANY SUCH LAWS, REGULATIONS, OR GUIDELINES THAT CLIENT HAS IDENTIFIED.

e. NO GUARANTEE ON VERACITY OF INFORMATION. CLIENT ACKNOWLEDGES AND AGREES THAT ETHICO DOES NOT GUARANTEE NOR WARRANT THE VERACITY OF INFORMATION RECEIVED BY ETHICO FROM ANY REPORTER TO THE HOTLINE OR MYCM OR ANY PUBLIC SOURCE AND THAT ITS ONLY RESPONSIBILITY WITH REGARD TO VERACITY OF INFORMATION IS TO ACCURATELY CONVEY TO CLIENT THE INFORMATION IT RECEIVES FROM ANY OF THESE SOURCES. FURTHERMORE, ETHICO IS NOT RESPONSIBLE AND SHALL NOT BE LIABLE FOR ANY ACTION OR INACTION CLIENT MAY TAKE BASED ON INFORMATION ACCURATELY RELAYED TO CLIENT BY ETHICO, INCLUDING ANY MISUSE OR ABUSE OF INFORMATION APPROPRIATELY OBTAINED BY ETHICO AND CONVEYED TO CLIENT PURSUANT TO THIS AGREEMENT.

f. INFORMATION SENT VIA INTERNET. IN NO EVENT SHALL ETHICO BE LIABLE FOR ANY LOST OR DELAYED E-MAIL MESSAGES OR ATTACHMENTS, OR DAMAGES CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS THAT WERE NOT CAUSED BY ETHICO.

13. Termination

a. General. The Agreement, or any Applicable Order Form, may be terminated under the following circumstances:

1. Either Party may terminate the Agreement in the event of a material breach by the other Party; or
2. Ethico may terminate the Agreement in the event of nonpayment or late payment of Fees.

b. Opportunity to Cure. In the event of a material breach of any provision of this Agreement, the non-breaching Party shall notify the breaching Party in writing of the specific nature of the breach and shall request that it be cured within a specified time period of thirty (30) days or more. The Parties agree to work together in good faith to cure any alleged or actual breach. If the breaching Party does not cure the breach within the specified time period to cure, the non-breaching Party may terminate the Agreement, effective on the date specified in the written notice. 

c. Reimbursement or Payment of Fees. In the event that Ethico is the breaching Party and is not able to cure the breach within the specified time frame, Ethico shall reimburse Client for any Fees for Services paid in advance and not rendered or delivered while the Agreement was in effect. In the event that Client is the breaching Party, and Ethico exercises its right to terminate, Client is responsible for all outstanding Fees due to Ethico, which shall be due and payable immediately upon termination.

d. Revocation of All Licenses. Upon termination or expiration of this Agreement, all licenses granted herein will terminate.

e. Termination of an Order Form. In the event that either Party has the right to terminate the Agreement and has multiple Order Forms in place, the Parties may mutually agree, in writing and signed by each Party’s duly authorized representative, to maintain the Agreement and terminate only the Order Form that gave rise to the right to terminate. 

14. Indemnification

a. By Ethico. Ethico agrees to indemnify and hold harmless Client and its respective affiliates (which shall include any companies that are owned or controlled by Client), directors, officers, employees, agents, subcontractors and insurers from and against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable experts’ and attorneys’ fees) and judgments, in whatever jurisdiction brought, under either federal or state law, from any and all actions, liabilities, damages, claims or expenses of any kind, including reasonable attorneys’ fees, brought by any third party against Client and which arise from (i) Ethico’s wilful violation of Applicable Law in relation to this Agreement, (ii) claims that Ethico is deliberately infringing or misappropriating any third-party intellectual property rights, or (iii) Ethico’s violation of the Confidentiality section of this Agreement.

b. By Client. Client agrees to indemnify and hold harmless Ethico and its respective affiliates (which shall include any companies that are owned or controlled by Ethico), directors, officers, employees, agents, subcontractors and insurers from and against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable experts’ and attorneys’ fees) and judgments, in whatever jurisdiction brought, under either federal or state law, from any and all actions, liabilities, damages, claims or expenses of any kind, including reasonable attorneys’ fees, brought by any third party against Ethico and which arise from (i) Client’s wilful violation of Applicable Law in relation to this Agreement; (ii) claims that Client is deliberately infringing or misappropriating any third-party intellectual property rights; (iii) Client’s violation of the Confidentiality section of this Agreement, (iv) taxes for which Client is liable; or (v) claims related to Client’s misuse or abuse of the Services, including any misuse or abuse of any information appropriately obtained by Ethico and accurately conveyed to Client pursuant to this Agreement. 

c. Indemnification Notice. The Party who is seeking indemnification (“Indemnified Party”) must promptly provide Notice to the Party from whom indemnification is being sought (“Indemnifying Party”) and set forth all relevant facts and circumstances related to any indemnification claim. 

15. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECULATIVE, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER FORESEEABLE OR NOT, AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE CUMULATIVE VALUE OF FEES PAID UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES. THESE LIMITATIONS OF LIABILITY SHALL NOT APPLY TO DAMAGES ARISING OUT OF BREACHES OF CONFIDENTIALITY OBLIGATIONS, DELIBERATE VIOLATIONS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR THE PAYMENT OF FEES. NO CLAIM OR ACTION, REGARDLESS OF FORM, MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO YEARS AFTER SAID CAUSE OF ACTION ARISES.

 

16. Governing Law

This Agreement shall be governed by and construed in accordance with laws of the State of North Carolina, in the United States of America, without regard to the choice-of-law rules thereof.

17. Dispute Resolution

a. Mediation. In the event of any controversy, dispute or disagreement arising out of or relating to this Agreement, including any alleged breach thereof, the Parties agree to first attempt to resolve the matter through a non-binding confidential mediation before pursuing any legal action. The Parties agree to participate in the mediation in good faith, including sharing all necessary information and working towards a mutually acceptable resolution. The Parties shall choose a mediator from a list provided by the American Arbitration Association. The costs of the mediation shall be split between the parties.

b. Arbitration. In the event that the Parties are unable to settle any controversy, dispute or disagreement arising out of or relating to this Agreement, including any alleged breach thereof, through mediation, then the matter shall be settled by arbitration. The arbitration shall be administered in Charlotte, North Carolina by the American Arbitration Association under its Commercial Arbitration Rules, as presently in effect, and which to the extent of the subject matter of the arbitration shall be binding not only on all Parties  to the Agreement but also on any other entity controlled by, in control of or under common control with the Party, to the extent that such entity joins in the arbitration, and judgment on the decision rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall bear their own costs and expenses incurred in connection with any such arbitration.

18. Force Majeure

A Party will not be deemed to be in breach of its obligations under this Agreement to the extent that a failure to perform is due, in any substantial part, to factors beyond its reasonable control, including, without limitation, civil disorder, disruptions of telecommunications services and/or third party internet service providers, outside electrical failures, cyberattacks on a Party’s internal systems or on the internal systems of third parties which host a Party’s infrastructure (including internet service providers and telecommunication providers), labor disputes, pandemics, governmental restrictions, fires, explosions, earthquakes, drought, tidal waves and floods, unusually severe weather, war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, embargo, rebellion, revolution, insurrection, or military or usurped power, civil war, contamination, riot, commotion, strikes, go slows, lock outs disorder, acts or  threats of terrorism or other events beyond the control of a Party (each a “Force Majeure”).

19. Independent Contractor; No Agency

Client is retaining Ethico as an independent contractor. Nothing in this Agreement shall be construed to create a joint venture, partnership, or any employment relationship between the Parties or between its employees or subcontractors. Unless otherwise expressly provided by written agreement, neither Party shall be liable for any of the obligations, liabilities or debts of the other Party. Neither Party shall be deemed to be an employee, agent, partner, or legal representative of the other for any purpose, nor shall either Party have any right, power, or authority to create any obligation or responsibility on behalf of the other.

20. No Waiver

Any delay in enforcement of any provision or rights set forth in this Agreement shall not constitute a waiver of the enforcement of any such provision or rights, unless such waiver is in writing and signed by the waiving Party.

21. Survival

Upon expiration or termination of this Agreement, all terms and conditions of this Agreement that, by their sense and content, are intended to survive the expiration or termination of this Agreement, shall survive, regardless of the reason of such expiration or termination, including, but not limited to Fees, Payment, Confidential Information, Data Privacy, Limitation of Liability, and Governing Law.

22. Headings

Headings contained herein are for convenience only and shall not affect the interpretation of the Agreement.

23. Counterparts

This Agreement may be executed in counterparts, which together shall constitute a single agreement. This Agreement and any documents relating to it may be executed and transmitted to any other Party via email. Electronic signatures and/or scanned copies of hard copy signatures shall be deemed to be original signatures.

24. Severability

If any part of this Agreement shall be determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, then such part shall be construed to reflect the original intention of the Parties, to the extent permitted under Applicable Law, and all remaining parts of this Agreement shall remain in full force and effect insofar as reasonably possible.

25. Notice

Notice under this Agreement means written notification sent to a Party via postal mail or email. Notices to Ethico should be sent to the address listed in the “For Notice” section of the Contact Information section of this Agreement.

26. Amendments

Any subsequent appendixes, annexes, or amendments to this Agreement must reference this Agreement must and be executed by a duly authorized representative of each Party.

27. Assignment

The terms of the Agreement shall be binding on the Parties and their respective successors. Neither Party may sub-license, assign, transfer or delegate its rights, duties, or obligations under this Agreement (in whole or in part) to any person or entity without the prior written consent of the other Party, except that either Party shall be permitted to fully assign this Agreement (and any Amendment hereto) to the purchaser of all or substantially all of its assets or business to any successor by merger, consolidation, or similar corporate action, and, in the case of Client, where an assignment changes the Service Quote of any Order Form (including, but not limited to, employee count or search base population), the Parties shall renegotiate the Fees as set forth in the Fee Basis and Renegotiation section of this Agreement to reflect said changes. 

28. Entire Agreement

This Agreement, including any attached Order Form, applicable DPA or BAA, and another Exhibit, shall constitute the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, electronic or otherwise, between the Parties.

ETHICO MASTER SERVICES AGREEMENT V.8