MASTER SERVICES AGREEMENT
Last updated: May 17, 2023
This Master Services Agreement (this “Master Services Agreement”) governs Dandi’s provision of software and services, and Licensee’s use thereof, as set forth in an applicable order form executed between Dandi Technologies Inc, (“Dandi”) and the entity placing an order for software and services (“Customer”, “Licensee”) (collectively, the “Parties” and each a “Party”). By executing an order form that incorporates this Master Services Agreement by reference (“Order Form”), Licensee agrees to the terms of this Agreement. Together, the Master Services Agreement and any applicable Order Form(s) constitute the “Agreement”. If the individual signing the Order Form for Licensee is signing on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind that company or other legal entity.
The Order Forms and any additional terms and conditions attached within, represent the entire agreement of the Parties and supersede all prior or contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter.
A. Dandi has developed a proprietary platform designed to provide organizations with data analytics and related services in connection with workplace Diversity and Inclusion; and
B. Customer wishes to have access to and use Dandi’s platform and services.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants below, the Parties agree as follows:
In addition to other terms defined elsewhere in this Agreement, the following terms, as used in this Agreement, have the respective meanings set forth below:
1.1. “Authorized Users” means employees, agents or representatives of Customer that access or otherwise use the Services, including prospective employees invited to complete surveys.
1.2. “Customer Data” means the information submitted by Customer through use of Service in connection with this Agreement, including without limitation the Customer’s HRIS and ATS databases. Customer Data may include personal Data pertaining to current, prospective and former employees, contingent workers and independent contractors of Customer.
1.3. “Dandi Data” means the statistical and analytical data created by Dandi from the review and/or processing of Customer Data (individually and in the aggregate) in combination with other data in Dandi’s information network. For clarity, Dandi Data does not include Customer Data.
1.4. “Deliverables” means the reports or other documentation delivered by Dandi to Customer in connection with the Service or that are otherwise accessible by Customer via the Service, as may be further described in the Statement of Work attached to the Order Form (“Service Exhibit”).
1.5. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.6. “Survey Respondent” means an Authorized User that is invited to complete, or completes, one or more surveys via the Services.
Subject to the terms and conditions of this Agreement, Dandi will use commercially reasonable efforts to provide Customer with access to Dandi’s cloud-based software-as-a-service (SaaS) platform designed to assess, implement, promote and monitor workplace Diversity and Inclusion, as further described in the Service Exhibit (“Service”).
3. USE OF THE SERVICE
3.1 Access to Customer’s human resources systems and information. Access to and use of the Service requires that Customer provides Dandi with access to Customer’s human resources information system (“HRIS”) and applicant tracking system (“ATS”) databases via Dandi’s application programming interface. Customer acknowledges and agrees that continued access to Customer’s HRIS and ATS databases during the Term is critical to the successful performance of the Service.
3.3. Restrictions. Customer will not at any time and will not permit any person (including Authorized Users) to: (i) sell, rent, sublicense, or lease access to the Service, or use the Service to provide services to third parties, or allow or enable access to or use of the Service; (ii) remove, obscure, or alter any proprietary notices associated with the Service or the Deliverables; (iii) use or modify the Service, and/or allow it to be used or modified, in any manner or for any purpose, other than as expressly permitted herein; (iv) disassemble, decompile, or reverse engineer any of the technology supporting the Service or otherwise attempt to discover the source code of the Service; (v) impersonate any person or entity or falsely state or otherwise misrepresent its affiliation with a person or entity to Dandi; (vi) materially and adversely interfere with or disrupt the Service or Dandi’s servers or networks; (vii) provide Dandi with false or misleading information; (viii) access the Service in order to build a competitive product or service or to copy any features, functions or graphics of the Service; (ix) use any outputs of the Services or other Deliverables, or any person’s survey responses, in violation of any applicable law; (x) use the Services to infringe or violate the rights of any other person, including any Intellectual Property Rights or rights of privacy or publicity, or (xi) permit or encourage any third party to do any of the foregoing.
3.4. Acceptable Use Policies. Customer acknowledges and agrees that Dandi does not monitor or police communications or data transmitted through the Service and that Dandi will not be responsible for the content of any such communications or transmissions.
3.5. Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s use of the Service is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring, setting up, and maintaining, at Customer’s own expense, all telecommunications and Internet services and third party hardware and software, required to access and use the Service, including without limitation any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Dandi shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services and third party hardware and software. Customer acknowledges that any warranty with respect to any third party hardware and software is provided exclusively by the manufacturer, and not by Dandi, and that Dandi shall have no obligation or liability whatsoever with respect to any such third party hardware and software.
4. CUSTOMER DATA; MAINTENANCE AND BACKUP
4.1. Customer Data. Customer represents and warrants that it owns all Customer Data or has all rights that are necessary for Dandi to use the Customer Data and grant to Dandi the rights in the Customer Data as set forth in this Agreement.
4.2. Data Processing Addendum. Each party shall comply with the Data Processing Addendum that is referenced in the Order Form.
4.3. Data Maintenance and Backup. Dandi will follow commercially reasonable industry practices to secure, backup, and archive Customer Data. In the event of any loss or corruption of any Customer Data, Dandi will use commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Dandi in accordance with Dandi’s standard archival procedures. Dandi will not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Customer Data caused by a third party. DANDI’S EFFORTS TO RESTORE LOST OR CORRUPTED DATA PURSUANT TO THIS SECTION 4.2 SHALL CONSTITUTE DANDI’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Dandi reserves all rights, title and interest in and to the Service, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2. Dandi Ownership. Subject to Customer’s rights in the Customer Materials, Dandi will exclusively own all rights, title and interest in and to any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used, created or developed by Dandi or its personnel in connection with performing the Service, including without limitation, the Dandi Data (collectively “Dandi Materials”), including all Intellectual Property Rights therein. Customer will have no rights in any Dandi Materials except as expressly set forth in this Agreement.
5.3. Customer Ownership. As between Dandi and Customer, Customer will exclusively own all rights, title and interest in and to the Customer Materials and Customer Marks (as defined below), including all Intellectual Property Rights therein.
5.4. License Grant to Dandi. Customer grants to Dandi a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform, process and analyze the Customer Data to: (a) provide the Service to Customer; and (b) create and develop the Dandi Data. Dandi may use and disclose Dandi Data (i) as part of Dandi’s business operations, on an aggregate basis, such that the use or disclosure does not enable a third party to associate any particular data with Customer or any individual as the source of such aggregated and anonymized information; and (ii) if required by court order, law, or governmental agency. In addition, Dandi may use Dandi Data to operate, manage, maintain, and improve its products and services.
5.5. License Grant to Customer. Subject to the terms and conditions of this Agreement, Dandi grants to Customer a non-exclusive, non-transferable, worldwide, royalty-free, fully paid up license, to use, copy, modify and distribute internally the Deliverables solely for Customer’s internal business purposes. Customer’s rights to the Deliverables are limited to those that are granted in this Agreement pursuant to this Section 5.5 and Dandi reserves all other rights, title and interests in and to the Deliverables.
6.1. Fees. In consideration of the Service performed by Dandi under this Agreement, Customer will pay the fees set forth in the Order Form (“Fees”).
6.2. Payment Terms. Dandi will invoice Customer in accordance with the terms specified on the Order Form. Customer will pay each such invoice no later than thirty (30) days after Customer’s receipt thereof.
6.3. Late Payments. Any invoice not paid within such thirty (30)-day period will accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is lower, until the balance is paid in full.
6.4. Taxes. All fees payable to Dandi hereunder do not include any sales, use, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Customer (excluding any taxes based on Dandi’s net income). If Dandi pays any taxes or duties that are the responsibility of Customer, Customer will promptly reimburse Dandi for those amounts.
7. TERM AND TERMINATION
7.1. Term. This Agreement takes effect on the date Licensee first signs an Order Form incorporating these terms and will remain in effect until all applicable Order Forms have expired or been terminated (the “Term”).
7.2. Term of Purchased Subscriptions. The term of each subscription to Services shall be as specified in the applicable Order Form. The subscription term of any Services pursuant to an Order Form with an effective date subsequent to the first Order Form hereunder will be deemed to expire, terminate or renew in accordance with the terms herein on the same date as the subscription term under such first Order Form. Except as otherwise specified in an Order Form, subscriptions to Services will automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter), unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The pricing during any automatic renewal term will automatically increase to an amount equal to pricing during the immediately prior term plus an additional seven percent (7%), effective upon renewal and thereafter.
7.3. Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach.
7.4. Effect of Termination. Upon expiration or termination of this Agreement, Customer’s ability to access the Service will immediately terminate and each Party will make no further use of any Confidential Information belonging to the other Party.
7.5. Surviving Provisions. Sections 5 (Proprietary Rights), 7.4 (Surviving Provisions), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), and 13 (General Provisions) will survive any termination or expiration of this Agreement.
8.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. As between the Parties, the Service is Confidential Information of Dandi and the Customer Materials are Confidential Information of Customer.
8.2. Exclusions. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
8.3. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party; (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are legally bound to protect such Confidential Information consistent with the requirements of this Agreement.
8.4. Permitted Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party (i) if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest, limit, or protect the disclosure; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; and (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of the Receiving Party.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is a valid legal entity and is in good standing or validly existing under the laws of the state of its incorporation and residence; (ii) it has the right and authority to execute, deliver, and perform its obligations under this Agreement; and (iii) it owns or has the necessary rights, permissions and consents necessary to grant the rights granted to the other Party hereunder.
9.2. Disclaimer. Customer assumes sole responsibility and liability for the Customer Materials and any results obtained from Customer’s use of the Service and for conclusions drawn from such use. Dandi will have no liability for any claims, losses, or damage caused by (i) errors or omissions in any Customer Materials; (ii) any actions taken by Dandi at Customer’s direction, or (iii) actions taken by Customer in response to the outputs of the Services. DANDI MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, DANDI DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE SERVICES WILL MEET CUSTOMERS NEEDS OR THAT ALL ERRORS WILL BE CORRECTED. DANDI FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DANDI OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT AND CUSTOMER ACKNOWLEDGES THAT DANDI IS NOT ENGAGED IN
RENDERING ANY REGULATORY, LEGAL OR OTHER PROFESSIONAL ADVICE.
10.1. Indemnification by Customer. Customer shall defend, indemnify and hold harmless Dandi, its officers, directors, employees and agents, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with (i) Dandi’s use of the Customer Materials; (ii) Customer’s use of the Service or Deliverables in violation of this Agreement; (iii) Customer’s breach of any term of this Agreement; and (iv) any third-party claim from any source (a) that a third party has suffered injury, damage or loss resulting from Customer’s use of the Service, or (b) for employment discrimination or any discriminatory treatment in connection with the Service or otherwise. Customer’s obligations under item (iv) of this Section 10.1 are contingent upon: (a) Dandi providing Customer with prompt written notice of such claim; (b) Dandi providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.
10.2. Indemnification by Dandi. Dandi shall defend any suit or action brought against Customer to the extent that it is based upon a claim that the Service, as provided by Dandi hereunder, infringes or misappropriates the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. Dandi’s obligations under this Section 10.2 are contingent upon: (i) Customer providing Dandi with prompt written notice of such claim; (ii) Customer providing reasonable cooperation to Dandi, at Dandi’s expense, in the defense and settlement of such claim; and (iii) Dandi having sole authority to defend or settle such claim. In the event that Dandi’s right to provide the Service is enjoined or in Dandi’s reasonable opinion is likely to be enjoined, Dandi may obtain the right to continue providing the Service, replace or modify the Service so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF DANDI WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. Dandi shall have no liability under this Section 10.2 to the extent that any third-party claims described herein are based on any combination of the Service with products, services, methods, or other elements not furnished by Dandi, or any use of the Service in a manner that violates this Agreement or the instructions given to Customer by Dandi.
11. LIMITATION OF LIABILITY
11.1. Exclusion of Damages. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 8 (CONFIDENTIALITY) AND INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, STATUTORY, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, WHETHER SUCH CLAIM FOR RECOVERY IS BASED UPON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.2. Limitation of Liability. IN NO EVENT WILL DANDI'S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT.
11.3. Basis of Bargain. THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 11 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DANDI AND CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
Dandi will have the right to announce publicly the existence of the business relationship between the Parties. In addition, Dandi may use Customer’s name, trademarks, and logos (collectively, “Customer Marks”) on Dandi’s website and marketing materials to identify Customer as Dandi’s customer, provided that Dandi will use commercially reasonable efforts to adhere to any usage guidelines provided by Customer with respect to the Customer Marks.
13.1. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the State of New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.
13.2. Freedom of Action. Nothing in this Agreement will be deemed to restrict or limit Dandi’s right to perform similar services for any other Party or to assign any employees or contractors to perform similar services for any other Party.
13.3. Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, without the other’s prior written consent, which will not be unreasonably withheld; provided that either Party may assign or transfer this Agreement without such consent in the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all of the Party’s assets. Any attempt to assign this Agreement without the required consent will be void. Subject to the foregoing, this Agreement will bind and inure to benefit the Parties and their respective successors and assigns.
13.4. Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) when sent, if sent by email during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day; (iii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iv) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the following addresses or to such other address as may be specified by either Party to the other Party in accordance with this Section 13.4.
If to Dandi:
Dandi Technologies, Inc.
22 West 38th Street
New York, NY 10018
Attention: Jeff Fernandez
If to Customer:
Primary contact listed on most recent Order Form
13.5. Relationship Between the Parties. The Parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other Party’s behalf without the other’s prior written consent.
13.6. Effect of Headings. The headings of the sections and paragraphs of this Agreement are included for convenience only and will not be deemed to constitute part of this Agreement or to affect the construction hereof.
13.7. Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will promptly notify the other Party and will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
13.8. Severability and Waiver. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect and the affect provision will be construed so as to be enforceable to the maximum extent permitted by law. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
13.9. Entire Agreement. This Agreement, together with any applicable Order Forms and its exhibits, including the Service Exhibit, constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. This Agreement may not be modified or amended except in a writing signed by a duly authorized representatives of each Party.