This Master Service Agreement (this "Agreement"), , is between Data Drivers Inc. (referred to as "Smartgeek"), with an office located at 252 Nassau Street 2nd Floor, Princeton NJ and signing customer (“Customer”) upon signature of a SmartGeek’s Statement of work (“SOW”) that references this online document as the governing MSA.

 

Smartgeek desires to provide such services, on the terms and conditions set forth in this Agreement.

 

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereby agree as follows:

 

Customer Responsibilities:

• Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Smartgeek or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels

• Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement

• Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Smartgeek’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  [Customer hereby agrees to indemnify and hold harmless Smartgeek against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services

• Although Smartgeek has no obligation to monitor Customer’s use of the Services, Smartgeek may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

• Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. CONFIDENTIALITY; PROPRIETARY RIGHTS

Confidential Information/Others 

• Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Smartgeek includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Smartgeek to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. 

• Customer shall own all right, title and interest in and to the Customer Data [,Smartgeek shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.    

• [Notwithstanding anything to the contrary, Smartgeek shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Smartgeek will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services.  No rights or licenses are granted except as expressly set forth herein.

• Customer grants Smartgeek a non-exclusive right to use the Customer’s name/logo on the website/marketing material in accordance with the Trademark Guidelines. 

TERM​

• Initial Term: The term of the agreement will be based on the time period defined in the SOW

• Automatic Extension: This Agreement shall automatically be extended for successive one (1) year terms (each a "Renewal Term") unless either party gives the other written notice of its intention not to extend this Agreement at least ninety (90) days prior to the end of the then current term (the Initial Service Term, together with each Renewal Term, if any, being collectively referred to herein as the "Term").

• Material Breach: In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  Customer will pay in full for the Services up to and including the last day on which the Services are provided

FEES AND PAYMENT OF FEES​

• All fees will be billed as per the rate agreed to in the statement of work. Except as otherwise set forth in an SOW, all fees and charges due hereunder will be invoiced in advance and shall be due and payable within fifteen (15) days of invoice date. Payment obligations are non-cancelable and all payments made are non-refundable.

• If the customer downloads the application as part of the free trial period (“first 2 months”), there will be no charge for the product for the Trial Period

• In the event of non-payment for service, the amount not paid when due will be subject to finance charges equal to 2% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, collection agency fees, reasonable attorneys’ fees and court costs) incurred by Smartgeek to collect any amount that is not paid when due.

• If Customer fails to pay amounts when due, then following ten (10) business days’ notice and opportunity to cure, Smargeek shall have the right, in addition to any of its other rights or remedies, to suspend the Smartgeek Service and provision of the Professional Services to Customer, and use by Customer of any Smartgeek Materials to Customer, without liability to Customer, until such amounts are paid in full.

WARRANTY AND DISCLAIMER

• Smartgeek shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner, which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Smartgeek or by third-party providers, or because of other causes beyond Smartgeek’s reasonable control, but Smartgeek shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Smartgeek does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SMARTGEEK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

LIMITATION OF LIABILITY

• NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SMARTGEEK AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SMARTGEEK’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SMARTGEEK FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SMARTGEEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MISCELLANEOUS

• If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Smartgeek’s prior written consent.  Smartgeek may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Smartgeek in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of  New Jersey without regard to its conflict of laws provisions. [The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Smartgeek to serve as a reference account upon request.