Master Service Agreement
1.1 Suggestic platform
Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Suggestic grants Customer a non-exclusive, non- transferable and non-sublicensable license to access and use, and to provide its Users with rights to access and use, the Suggestic Platform during the Term. “User” means (i) consumer customers of Customer who access the Suggestic Platform and (ii) employees, contractors, or agents of Customer which use or otherwise interact with the Suggestic Platform.
1.2 Support Services
Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Suggestic will provide the Suggestic Platform on a hosted basis and will use commercially reasonable efforts to provide the service levels and support services set forth in the Service Level Agreement attached hereto as Exhibit B hereto (the “Support Services”); provided that Customer is solely responsible for maintaining its equipment, timely transmission of, and the accuracy, quality, integrity, and reliability of, Customer Data (defined in Section 3.2 below).
1.3 Professional Services
Subject to Customer’s timely payment of applicable Professional Service Fees, Suggestic will use commercially reasonable efforts to provide to Customer the professional services identified on a mutually executed statement of work (“SOW”) based on a form set forth in Exhibit A, if desired by the parties from time to time (collectively, the “Professional Services”).
2. CUSTOMER OBLIGATIONS
2.1 Restrictions on Use of Suggestic Technology.
Customer shall not, and shall not authorize any person to, directly or indirectly: (i) copy, modify, translate, adapt, or create derivative works; (ii) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of; (iii) [reserved]; (iv) sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, any third party (except to Users); (v) transmit unlawful, infringing or Malicious Code to or from; (vi) replicate significant portions of Suggestic’s data except as needed to access or use the Suggestic Platform, or (vii) otherwise use except as expressly permitted hereunder, in each case of (i) – (vii), the Services (including all technology constituting or used to provide such service) or Suggestic’s data, as applicable (together the Services and Suggestic data are “Suggestic Technology”). The foregoing restrictions shall apply to the maximum extent permitted by applicable law.
2.2 Compliance with Laws.
Customer shall at all times comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to its use of the Services, the operation of its business and to this Agreement. Without limiting the generality of the foregoing, Customer shall at all times at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
3. PROPRIETARY RIGHTS; DATA
3.1 License to Customer Marks.
Customer hereby grants to Suggestic a non-exclusive, worldwide and royalty-free license, with right of sublicense pursuant to Section 10.4, during the Term to use the Customer’s trademarks, name, logos and other indicators of origin provided to Suggestic by Customer (collectively, “Customer Marks”) and any other images and materials provided to Suggestic by Customer hereunder (together with the Customer Marks, the “Customer Content”) solely in connection with the provision of the Services. Customer agrees that Suggestic may identify Customer company as a Suggestic partner and use Customer company’s name and logo in its marketing materials and website relating to Suggestic’s Services. Customer grants Suggestic a limited license to use Customer company’s trademarks designated by Customer for such uses, subject to any applicable trademark usage guidelines Customer provide to Suggestic. Customer reserves all rights not expressly granted in this Section.
Except for the limited rights granted in this Agreement: (a) Suggestic hereby retains all rights, title and interest, including all intellectual property rights, in and to the Suggestic Platform, the Usage Data (as defined below), and any and all works of authorship, inventions, or other intellectual property created by Suggestic in connection with providing the Services, provided that such shall not include any Private Data, Proprietary Data, Customer Data or Customer Confidential Information; and (b) Customer hereby retains all rights, title and interest in Customer Data and Proprietary Data. Customer hereby grants to Suggestic a worldwide, irrevocable, perpetual, royalty- free license, with right of sublicense pursuant to Section 10.4, (i) to exploit without restriction all feedback regarding Suggestic Platform; (ii) to use any other information related to Customer’s use of the Services (including information provided to Customer by any Users or third party providers) to improve Suggestic’s products and services; (iii) to use all data made available to Suggestic by or on behalf of Customer to perform its obligations hereunder; provided that such license explicitly excludes any Private Data (as defined below). “Customer Data” means any data transmitted by Customer or its Users (and any derivative thereof) to or through the Services (such as new recipes, new food items, customer support interactions and other any User generated content), or delivered to Suggestic by Customer and identified as such, or delivered to Suggestic by a third party on behalf of Customer for which Customer (but not Suggestic) pays a usage fee; provided that, notwithstanding the foregoing, Customer Data does not include Private Data, data in the public domain or publicly available data, data independently derived by Suggestic, or except as expressly described above, data obtained by Suggestic from a third party. “Private Data” means any personally identifiable data and health related data; examples of the foregoing include: names, email addresses, mailing addresses, phone numbers, personal photos, diagnoses, medical test results, prescription or treatment information. “Proprietary Data” means any proprietary rulesets and protocols, such as proprietary health assessments, personalization rulesets and nutritional protocols that will only be used to provide the services to the Customer and the Users. “Usage Data” means the metadata generated by any User interacting with the Suggestic Platform.
3.3 Suggestic Data.
Suggestic may remove or restrict access to Suggestic’s data if it violates an applicable law, the source of such data becomes unavailable, or a third party brings or threatens legal action. Customer will obtain all permissions or approvals from each applicable data source as may be necessary or required to provide such data to Suggestic in connection with the delivery of the Services and to comply with all applicable laws in its performance under this Agreement.
3.4 License to Customer Data.
Customer Data shall be and remain the sole exclusive property of Customer. Customer grants to Suggestic a non-exclusive, limited license to including a license to store, record, transmit, maintain, and display Customer Data only to the extent necessary to provide services under this Agreement. Except as permitted in this Agreement, Suggestic will not edit, delete, or disclose the contents of Customer Data unless authorized in writing by Customer. Customer Data shall be considered Customer’s Confidential Information; except that any Customer Data that is in an aggregated or anonymous, de- identified form (i.e., in a form that cannot be used itself to identify Customer or Users) will not be considered to be the Confidential Information of Customer.
3.5 Software License.
Subject to the terms and conditions of this Agreement, Customer is hereby granted a limited license to use the Suggestic Platform internally as well as all such output of the Services developed by Suggestic, in compliance with the Licensing Agreement, as set forth in Exhibit C.
4. FEES; PAYMENT
4.1 Fees; Suggestic Platform.
Customer will pay Suggestic the non-refundable, non-cancellable and non-recoupable fees described in the applicable order form (collectively, the “Platform Fees”). The Platform Fees consists of Suggestic’s licensing, maintenance, support and operation of the Services. The Platform Fees include any fees based on the number of Monthly Users of the Suggestic Platform (“User Fees”). The definition of “Monthly Users”, the User Fees, Platform Fees (together, the “Fees”) and payment terms are set forth in the applicable order form.
4.2 Fees; Professional Services.
In addition to the Suggestic Platform Fees, Customer will pay Suggestic for the Professional Services as set forth in an SOW (the “Service Fees”). The Service Fees, unless otherwise set forth in an SOW, will be paid up-front by Customer. An SOW may set forth that certain milestones achieved or deliverables received by Customer result in additional Services Fees.
4.3 Payment Terms.
Unless otherwise set forth in the applicable order form, at the end of each calendar month, Suggestic will send an invoice to Customer setting forth (i) the number of Monthly Users; (ii) the Platform Fees and the User Fees; and (iii) the total Fees payable to Suggestic. Unless otherwise set forth in the applicable order form, Fees are due and payable by Customer in United States dollars within 15 days after the receipt of such invoice (which may be sent by Suggestic to Customer via electronic means). Interest will accrue on unpaid Fees after such 15 day period interest accrues from the due date at the lesser rate of 1.5% per month or the highest rate allowed by law.
4.4 Fees for Additional Services.
Customer may request, Suggestic may offer, or the Parties may mutually agree to, additional services (any such service, an “Additional Service”). The Parties will negotiate in good faith their respective rights and obligations with respect to any Additional Service and fully describe the Additional Service in an SOW in the form attached as Exhibit A, including the relevant scope, payment and term of the Additional Service. Fees for such Additional Service will be set forth in the SOW and payable in accordance with Section 4.3, unless the SOW for an Additional Service states otherwise.
4.5 Revenue Share and Sales Commissions.
Suggestic will collect the amounts based on transactions made by customers on the Suggestic Platform as set forth on the order form.
Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Suggestic’s net income).
5. TERM; TERMINATION
This Agreement will start on the Effective Date and, unless terminated earlier in accordance with this Agreement, will continue for the term set forth in the applicable order form (“Initial Term”). Thereafter, this Agreement will automatically renew for immediately successive renewal term(s) set forth in the applicable order form (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides written notice of non-renewal at least 30 days before the expiration of the then applicable term.
5.2 Termination by Suggestic.
Suggestic may terminate this Agreement by written notice if any of the following occurs: (i) Customer fails to pay within no more than 10 business days after written notice of nonpayment any undisputed amounts owed Suggestic; or (ii) except as set forth in (i), Customer is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; or (iii) Customer files for or is adjudicated bankrupt or suffers any other analogous event.
5.3 Termination by Customer.
Customer may terminate this Agreement upon the occurrence of the following: (i) Suggestic is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; (ii) Suggestic files for or is adjudicated bankrupt or suffers any other analogous event; or (iii) five (5) or more failures of Suggestic to abide by terms set forth in Exhibit B, Service Level Agreement, in any 30-day period.
5.4 Effect of Termination.
Upon the effective date of expiration or termination of this Agreement: (i) all outstanding SOWs, and access to Suggestic Technology will automatically terminate; (ii) all outstanding payment obligations of Customer become due and payable immediately; and (iii) Customer has 30 days to request return of Customer Data (after which time, Suggestic has no further obligation to store or permit retrieval of such data). After such time has elapsed, Suggestic will delete all Customer Personally Identifiable Data from its files, unless an extension has been agreed to by the Parties. At no time will ownership of Customer Data revert to Suggestic. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 2.1 (Restrictions), 3 (Ownership; Data), 5.4 (Effect of Termination), 6 (Confidentiality), 7 (Indemnification), 8 (Disclaimer of Warranties), 9 (Limitation of Liability), and 10 (General).
“Confidential Information” means any information disclosed directly or indirectly by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is either designated as “confidential” or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. As between Suggestic and Customer, the Suggestic Technology is the Confidential Information of Suggestic, and the Customer Data is the Confidential Information of Customer.
6.2 Use; Maintenance.
Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality but in no case less than a reasonable degree of care. Each Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party, and will take at least those measures that it takes to protect its own most highly confidential information. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Suggestic may list Customer as a customer in its promotional and marketing materials, including its website.
7.1 By Suggestic.
Suggestic shall (i) defend, or at its option settle, any third party claim, proceeding, or suit (“Claim”) brought against Customer to the extent it alleges that the Suggestic Platform or Customer’s use of the Suggestic Platform as authorized in this Agreement (x) constitutes a direct infringement of the intellectual property rights or trade secret of any third party; or (y) violates any applicable laws, rules, or regulations; or any Claim arising from Suggestic’s gross negligence or willful misconduct, and (ii) pay, subject to the limitations set forth in Section 9, damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by Suggestic; provided that Customer provides Suggestic: (i) prompt written notice of (though failure to provide such notice shall not relieve Suggestic of its obligations to the extent that such failure to provide such notice materially adversely affects Suggestic); (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Suggestic in connection with the defense or settlement of, any such claim. In addition, if any such claim is brought or threatened, Suggestic may, at its sole option and expense: (a) procure for Customer the right to continue to use the Services; (b) modify the Services to make them non-infringing; (c) replace the Services with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, upon 60 days prior notice terminate this Agreement. Notwithstanding the foregoing, Suggestic will have no liability to Customer for any claim arising out of or based upon: (w) Suggestic’s use of Usage Data or Customer Content as permitted by this Agreement; (x) the use of the Services in combination with software, products or services not provided or authorized by Suggestic or as reasonably necessary to use the Services; or (z) Customer’s failure to use the Services in accordance with this Agreement (“Excluded Claims”).
7.2 By Customer.
Notwithstanding anything to the contrary in Section 7, Customer shall defend or, at its option, settle, any Claim brought against Suggestic arising from any Excluded Claim, including without limitation any claim that Customer Content infringes third party proprietary rights. Customer will pay damages finally awarded against Suggestic (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer; provided that Suggestic provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Suggestic will have the right to participate in the defense of any such claim at its own expense and with counsel of its own choosing. Customer shall have no obligations under this Section if such Claims are caused by Suggestic’s breach of this Agreement.
8. WARRANTIES; DISCLAIMER
8.1 Mutual Warranties.
Each Party represents and warrants to the other that: (i) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses set forth herein, and to perform its obligations hereunder; (ii) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (iii) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
8.2 Suggestic’s Warranties.
Suggestic represents and warrants to Customer that all components of the Suggestic Technology are either owned by Suggestic or Suggestic has obtained all necessary permissions or licenses for their use. Suggestic represents and warrants that (A) Suggestic will use commercially-reasonable efforts to ensure that the Suggestic Platform uses industry-standard software, and will be compatible with customary technology; (B) Suggestic has performed a reasonable risk assessment and agrees to immediately implement appropriate technical and organizational safeguards and procedures in a manner that is consistent with these principles and policies to protect and keep secure any Customer Data to which it or any of its Affiliates has access in connection with the Services or Suggestic platform. In addition, Suggestic has responded to a vendor risk assessment (“VRA”) provided by Customer or its Affiliates and Suggestic warrants that all answers provided were true and accurate when provided. Suggestic represents and warrants that Suggestic will use all commercially-reasonable efforts to ensure that the Suggestic Platform is protected against security risks and vulnerabilities and shall continuously update its technical and organizational safeguards and procedures as necessary to protect and secure Customer Data in accordance with this Agreement and applicable law, including, but not limited to: (a) implementing security procedures that are, at a minimum, at least as secure as those available in the most-recent versions of commercially available web hosting products, including patches, fixes or updates thereto within 24 hours of release to the general public; (b) secure TLS encryption of all data transmissions; (c) password protected access and user IDs; (d) automatic log off if the Suggestic Solution is idle or no action is taken after a specified period of time; and (e) isolation of Customer Data into separate (physically or logically) databases. Suggestic will immediately notify Customer of any actual or threatened security breach in or unauthorized or suspicious access to the telecommunications systems that would adversely affect Customer’s systems or access to the Suggestic Platform. Suggestic represents and warrants that Suggestic and the Suggestic Platform shall conform to all applicable laws, ordinances, statutes, treaties, rules, judgments and regulations whether federal, state, county, local, or otherwise. Suggestic represents and warrants that it has used its best efforts to ensure that the Suggestic Platform contains no “computer viruses” or “time bombs” as those terms are commonly understood in the information process industry. Specifically, Suggestic warrants that the Suggestic Platform contains no code or instructions (including any code or instructions provided by third parties) that is designed to delete, disable, deactivate, interfere with, or otherwise harm the deliverables or Customer’s hardware, data, or other programs, or that is intended to provide access or product modifications not authorized by Customer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EXHIIBIT C), EACH PARTY HEREBY DISCLAIMS ALL ADDITIONAL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. SUGGESTIC DOES NOT WARRANT THAT ANY THIRD-PARTY SERVICES, CONTENT OR FUNCTIONALITY OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA. SUGGESTIC DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. Without limiting anything in this Section 8, Customer acknowledges and agrees that Customer is solely responsible for establishing the terms of its relationships with Users of the Suggestic Platform, and for all losses or liabilities arising therefrom (including, without limitation, any losses or liabilities arising from data submitted to the Suggestic Platform by Customer or any User).
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability.
EXCEPT FOR SUGGESTIC’S INDEMNIFICTION OBLIGATIONS UNDER SECTION 7, CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.2, OR EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS AND THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 7.1 AND 7.2, NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
9.2 Limitations and Exclusions.
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM: (i) A BREACH OF SECTION 6 (CONFIDENTIALITY); (ii) CLAIMS THAT ARE SUBJECT TO INDEMNIFICATION; (iii) PERSONAL INJURY OR DEATH OR DAMAGE TO ANY REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY EITHER PARTY'S NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT; OR (iv)THE GROSSLY NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF EITHER PARTY IN PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT.
10. GENERAL PROVISIONS
Neither Party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement without the written consent of Customer as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets or business related to this Agreement or a similar transaction or series of transactions provided that the assignee is not competitor of the other Party. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Notwithstanding the foregoing, Customer shall have the right to assign this Agreement, and/or any rights and/or Agreement hereunder, to an affiliated entity without the prior consent of Suggestic.
10.2 Force Majeure.
Neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage, pandemic, or dispute, governmental act or failure of the Internet. The delayed Party shall give the other Party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
10.3 Governing Law.
This Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in the State of California, and the Parties hereby agree and consent to the exclusive jurisdiction and venue of these courts.
This Agreement (together with the Exhibits, and/or SOWs hereto) is the sole agreement of the Parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence shall apply: this Agreement, Exhibits, SOW. No terms of any purchase order, invoice, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Suggestic to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which Party drafted hereof. This Agreement may only be amended by a writing signed by both Parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each Party set forth below, or to such other address as either Party may substitute by written notice to the other from time to time. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courtier service, or 3 days after deposit in the mail. The relationship between the Parties shall be that of independent contractors. Suggestic may use subcontractors and may delegate any of its obligations under this Agreement or SOW to subcontractors in its sole discretion. Waiver of any term of this Agreement or forbearance to enforce any term by either Party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision. Each Party agrees to comply with all applicable export control laws and regulations related to its offering or use of Suggestic Technology and Suggestic shall provide Customer reasonable assistance in complying with such laws and regulations.
All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of California or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in healthcare and technology and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
Exhibit B: Service Level Agreement
Suggestic will host the Suggestic Platform (“Hosting Services”) and technical support services in accordance with the performance standards set forth in this Exhibit A. All capitalized terms not defined in this Exhibit, will have the meanings that are defined in the Order Form, the Master Platform Subscription Agreement or the SOW.
I. Hosting Services
Suggestic will use reasonable efforts to provide the Hosting Services so that, other than for scheduled or emergency maintenance or disruptions caused by third parties not under Suggestic’s control, the Suggestic Platform will be accessible in all material respects 99.9% of the time during any 30-day period. The availability of the Suggestic Platform may be subject to limitations, delays, and other problems inherent to the general use of the Internet and other public networks or caused by Customer or third parties. Suggestic is not responsible for any delays or other damage resulting from problems outside of Suggestic’s control, including problems with the Suggestic Platform, which will be addressed in accordance with the relevant Master Platform Subscription Agreement. If limitations, delays, or other problems are caused by or third parties, Suggestic will use reasonable efforts to avoid down time caused by such third parties and to minimize the disruption to the Suggestic Platform.
2. Performance Issue Corrections.
If the Suggestic Platform is not accessible (“Performance Issue”), Suggestic will use reasonable efforts to correct the Performance Issue with a level of effort commensurate with the severity of the Performance Issue. Suggestic and Customer will comply with the following resolution procedures for all Performance Issues reported by Customer:
(a) Notice of Performance Issue. If Customer encounters a Performance Issue, Customer must sufficiently define the Performance Issue in a written notice to Suggestic. After receipt of written notice of a Performance Issue from Customer, Suggestic will notify Customer if Suggestic cannot identify the cause of the Performance Issue. If Suggestic cannot identify the cause of the Performance Issue, Customer will provide additional information regarding the Performance Issue as Suggestic may request in order to assist Suggestic with identifying the cause of the Performance Issue. Customer will provide a separate written notice for each Performance Issue encountered by Customer.
(b) Performance Issue Classification. In its notice of a Performance Issue, Customer will reasonably classify for Suggestic the initial priority of the Performance Issue. Customer will use the nature of the Performance Issue and Customer’s business situation to initially classify each Performance Issue. Customer will classify each Performance Issue in accordance with the severity classification table below. To the extent that Suggestic disagrees with any Performance Issue classification provided by Customer, Suggestic will promptly advise Customer of the revised classification of any Performance Issue.
(c) Response Time. Suggestic will use reasonable efforts to respond to each of Customer’s written notices of Performance Issue within the period set forth in severity classification table below. Response time is the elapsed time between Customer’s first report of an identified Performance Issue and the provision of a plan for resolution by a Suggestic technical contact.
(d) Expedited Response Time. To the extent that Customer may seek Suggestic to respond to any written notice of Performance Issue within a time period other than as set forth in the table below, Customer may request such response and Suggestic may elect to provide such additional services to Customer on terms and conditions as the parties may agree upon in writing (which may include, without limitation, additional costs and expenses payable by Customer to Suggestic in connection with such any expedited services). Notwithstanding the foregoing, Suggestic will have no obligation to enter into any such agreement with respect to any such additional services. To the extent that the Parties enter into any such agreement, Suggestic will invoice Customer for, and Customer will pay, any such additional amounts as set forth in this Agreement (unless otherwise agreed upon by the parties in writing).
|Severity Classification||Description of Performance Issue||Response Time|
|Class A: Emergency||Any Performance Issue that causes the Suggestic Platform to be completely inaccessible.||2 hours|
|Class B: Urgent||Any Performance Issue that causes a material degradation in the performance of the Suggestic Platform.||4 hours|
|Class C: Non-urgent||Any Performance Issue that causes a non-critical degradation in the performance of the Suggestic Platform.||12 days|
Suggestic will make available to Customer modifications, updates and subsequent versions to the Suggestic Platform that Suggestic makes generally available to all of its customers of the Suggestic Platform (“Updates”). Suggestic reserves the right to make Updates at any time during the Term in its discretion.
II. Technical Support Services
During the Initial Term and any Renewal Term, Suggestic will provide technical support services to Customer via phone and email during regular business hours, to address issues or questions encountered by Users regarding the administration of, function of and underlying processes associated with the Suggestic Platform (“Technical Issue”).
2. Notice of Technical Issue.
When communicating such Technical Issues, Customer will make reasonable efforts to provide details of the context of issues, including, but not limited to, screen shots, report examples, descriptions of the sequence of events, details of error messages, etc.
Suggestic will make commercially reasonable efforts to respond to Technical Issues based on the Technical Support Response Time defined in the applicable Order Form. Suggestic will also make commercially reasonable efforts to correct confirmed defects in the Suggestic Platform of which it is made aware and that are capable of being corrected, based on the severity of the defect.
If Customer makes requests for Support to assist it to correct errors in its data and upon investigation, such errors are caused solely by actions of its own Users, Suggestic reserves the right, upon notice to Customer thereof, to provide such support at Suggestic’s then-current hourly rates based on the actual time applied to provide such assistance.
The technical support services do not cover:
(a) Modifications made to the Suggestic Platform by the Customer or third parties;
(b) The use, interconnection, or integration of the Suggestic Platform with an operating system or any software or hardware or networking systems not specified as compatible in writing by Suggestic;
(c) Use of the Suggestic Platform in a manner for which it was not designed, including in the breach of the Order Form, the Master Platform Subscription Agreement or the SOW;
(d) Problems that cannot be reproduced by Suggestic based on information provided by Customer, or that cannot be remedied due to the operational characteristics of the equipment on which the Suggestic Platform is used; or
(e) Hardware maintenance.
III. Customer Obligations
Customer will appoint up to two individuals within Customer’s organization to
- serve as primary contacts between Customer and Suggestic with regards to the Hosting Services and technical support services. Customer must initiate all requests through these contacts.
- Reasonable Assistance. Customer will provide Suggestic with reasonable access to all necessary personnel to answer questions regarding Performance Issues or Technical Issues reported by Customer.
- Good Standing. The provision of the Hosting Services and technical support services by Suggestic during the term of this Agreement is contingent upon Customer’s performance of its payment and other obligations under the Agreement. Suggestic reserves the right, in addition to other remedies available, to suspend its provision of the Hosting Services and technical support services for so long as Customer is not current with its obligations.
Exhibit C: Licensing Agreement
Terms and Conditions
The license to access and use the Suggestic Platform is conditioned on Customer compliance with the following terms and conditions:
- Customer may not sell, resell or otherwise charge users solely for the access or use to the Suggestic Platform (or any Suggestic Content) unless otherwise stated.
- Customer acknowledges that the availability of the Suggestic Platform components (and any Suggestic Content) is subject to change and Suggestic may restrict access to, modify, suspend or terminate any part of the Suggestic API, Suggestic SDK, Suggestic Web Portals, Suggestic Content or Suggestic Apps. Customer will promptly remove and not display (or archive) any Suggestic Content that has been removed by Suggestic or for which Suggestic has notified Customer that such Suggestic Content must be immediately removed.
- Customer may not copy, store, or archive any of Suggestic Content and/or extract any data from it, unless Customer has Suggestic’s prior written permission to do so.
- Customer must abide by the limitations on access, calls, and use of the Suggestic API ("rate limits") that are set by Suggestic. Customer may not attempt to circumvent those rate limits unless Customer prior written authorization from Suggestic. If Customer exceed these rate limits (or Suggestic believes that Customer have attempted to do so) Customer may be charged additional fees or Customer ability to access the Suggestic API and/or use the Suggestic Platform (or Suggestic Content) may be temporarily or permanently blocked. Suggestic may monitor Customer access and use of the Suggestic Platform (and Suggestic Content) to ensure Customer compliance with these terms.
- Customer may not (or attempt to) interfere, by-pass, or disable any features or functionality that is embedded or included with the Suggestic Platform, Suggestic Content or Suggestic API, including the reporting of any data, usage statistics or other information regarding Customer (or Customer users’) access and use of the Suggestic Platform or any Suggestic Content.
- Customer may not use or access the Suggestic API for purposes of monitoring the availability, performance or functionality of the Suggestic Services or for any other benchmarking or competitive purposes.
- Customer may not use, copy, modify or distribute the Suggestic API, Suggestic Content or Suggestic Services for any purpose other than as expressly permitted herein and Customer may not use the Suggestic Services (and any Suggestic Content) in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms.
- In certain circumstances, Suggestic may require (and reserves the right to require) that prior to Customer use or incorporation of Suggestic Platform into Customer products or services, Customer provide Suggestic with examples of Customer proposed use of the Suggestic Services (and any Suggestic Content) in Customer Platform for Suggestic’s prior approval, which it may give in its sole discretion.
- As a condition of your use of and access to the Suggestic Platform, Customer agrees to include and feature the applicable Suggestic Logo, attribution and where applicable, hyperlink(s) to the Suggestic website (or other site as Suggestic may specify), as defined in the Suggestic attribution guidelines, in connection with Customer use of the Suggestic Platform and any Suggestic Content.
- Suggestic retains the right, without prior consent, to reproduce, publish and display such Customer’s website, display or publication, to the extent they do not contain Customer’s confidential information, in Suggestic’s portfolios and websites or other media.
- Customer must include the name of the provider of a recipe ("Recipe Source") and hyperlink(s) to the Recipe Source’s website (or other site as Suggestic or the Recipe Source may specify), in connection with Customer use of the Suggestic Services (and any Suggestic Content).
- Customer must include the name of the provider of a restaurant menu as well as include the source of nutritional information for each menu item.
- Customer may not remove, alter or obscure any copyright or other proprietary notice (or any source identifier) or any hyperlinks that is provided with any Suggestic Services or included in any Suggestic Content. Customer may not interfere with the correct operation of the source links.
Exhibit D: Promotional Credit Terms and Conditions
These Suggestic Promotional Credit Terms and Conditions are an agreement between Customer and Suggestic and govern the use of any Suggestic promotional credit (“Promotional Credit”).
- Promotional Credit will be applied only to offset eligible fees and charges incurred during or following the billing cycles immediately after the execution of this agreement. Promotional Credit will be applied only to the specific Services defined in Exhibit C of this Suggestic agreement (collectively, “Eligible Services”). Promotional Credit will not be applied to any fees or charges for Professional Services, Referral Fees, any other Products or Services set forth in this agreement and not specifically included within the Eligible Services in Exhibit C (collectively, “Ineligible Services”).
- Promotional Credit will be applied to the Customer’s Eligible Services. The Customer will be billed for all fees and charges for use of any Eligible Services in excess of the amount of available Promotional Credit.
- Customer may not sell, license, rent, or otherwise transfer Promotional Credit. Promotional Credit may be applied only to the Customer’s own Suggestic Platform Services. Promotional Credit has no intrinsic value, is not redeemable for cash, has no cash value, is nonrefundable, and serves merely as a means to provide an incentive to use our Services. Promotional Credit may not be purchased for cash, and we and our affiliates do not sell Promotional Credit.
- Promotional Credit is void in the event of fraud, misuse, or violation of any terms of the Agreement, these Terms, or the terms of the agreement, promotion, or program pursuant to which the Customer received the Promotional Credit. Promotional Credit is void if sold for cash or other consideration. In addition to any other legal relief available to Suggestic, the Customer will reimburse Suggestic for the amount of any Promotional Credit used in violation of these Terms.
- By accepting Promotional Credit, Customer represent and warrant that your receipt and use of Promotional Credit is not prohibited or inconsistent with any applicable laws, regulations, or binding orders (including applicable ethics or procurement rules) and will not create a conflict of interest for Suggestic.
- If the Customer is a federal government entity or other entity that is subject to special rules governing your receipt of Promotional Credit, you may not use or receive Promotional Credit directly unless agreed upon in writing.
- Unless authorized by Suggestic, Promotional Credit may not be used in conjunction with any other promotional or incentive offer from Suggestic or our affiliates.
- Promotional Credit will not be applied against any sales, use, gross receipts, or similar transaction based taxes that may be applicable to the Customer.
- Customer may not issue any press release or make any other public disclosure regarding Promotional Credit without prior written consent.
- Promotional Credit is valid for a limited time only and cannot be redeemed after the expiration date indicated in Exhibit C (or such other date designated by Suggestic or in these Terms). Redeemed Promotional Credit will be applied to offset eligible fees and charges incurred during the entire billing cycle in which it expires. Failure to redeem Promotional Credit before its expiration date will result in its forfeiture. We reserve the right to cancel Promotional Credit at any time. No refunds will be granted for any expired or cancelled Promotional Credit.
- Promotional Credit expires either on the expiry date contained on Exhibit C or one year from the execution date of this agreement, whichever is first.
- Suggestic may modify these Promotional Credit Terms at any time by notifying the Customer via email. The modified Terms will become effective as stated in the email message. By receiving or using Promotional Credit after the effective date of any modification to these Terms, Customer agrees to be bound by the modified Terms.