This MSA governs Company’s access to and use of Textkernel’s Services. This MSA , together with any Order Form(s), TOS, and SOW(s) (each as defined below), form a binding agreement (the “Agreement”) between Company and Textkernel.
1) DEFINITIONS
A number of notions are handled in the Agreement, singular or plural, that start with a capital letter, and have the meaning of the italicized words as defined in this section.
Agreement: this Master Services Agreement, including any executed Order Forms, SOWs and TOS, and their amendments, addendums, and attachments.
Change of Control: any change in the persons or entities controlling the Company, including without limitation such changes resulting from a merger, consolidation, or stock transfer.
Company Content: all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Company that is stored, or inputted into the Services.
Confidential Information: the terms of the Agreement and any information that is not public knowledge that Parties designate, either in writing or orally, as confidential, or which, under the circumstances of disclosure ought to be treated as confidential. Confidential Information includes without limitation: software, hardware, products, services, policies and practices, Intellectual Property Rights, development and marketing plans, and financial information.
Data Protection Laws: all applicable data protection and privacy laws and regulations, including the EU Directive 2016/679, as amended from time to time.
Documentation: the product specifications, integration specifications, administration guides and user manuals concerning the Services and Functionality, that may be placed at the Company’s disposal by Textkernel. Documentation may be amended from time to time.
Enhancements: any Feedback, changes, updates, upgrades, releases, fixes customizations, additions, translations, improvements or modifications made to, or derivative works created from, the Services or Textkernel Content.
Feedback: ideas, comments, translations, or suggestions relating to the Services or Textkernel Content provided by Company to Textkernel.
Force Majeure Event: any event or circumstance beyond the control of the non-performing Party, that prevents the non-performing Party from complying with any of its obligations under this Agreement, other than its obligation to pay money. Force Majeure Event does not include any strike or other labor unrest that affects only one party, an increase in prices, or a change of law.
Functionality: the user functions and possibilities of the software applications that are described in the Agreement or the Documentation, whether divided in sub functionalities and / or modules.
Intellectual Property Rights: all intellectual property rights, whether those rights happen to be registered or not, and wherever in the world those rights may exist, including but not limited to associated Confidential Information, copyrights, data-base rights, trade secrets, trademarks, patents, inventions, designs and know how.
Order Form: the form in which Parties describe the details of the Services that will be provided and the applicable prices, payment conditions, and scope of use. The Parties agree that all Order Forms shall be governed by this Master Services Agreement.
Personal Information: any data or information that constitutes personal data or personal information under any applicable Data Protection Laws;
Security Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal and/or Confidential Information;
Service(s): all services identified in an Order Form or SOW or otherwise performed or made available by Textkernel under this Agreement, such as software services, API’s, the making available of the Functionality, work performed by Textkernel, data enrichment projects, ontologies and taxonomies operated and licensed by Textkernel, delivery of data sets and Customer Success; all of which including enhancements, implementation, support, training and Documentation.
Statement of Work (“SOW”): describes all mutually agreed work to be done by Textkernel for Company, including but not limited to implementation activities, technical or functional consultancy, project management, training, custom development, and non-standard support. The Parties agree that all SOW’s shall be governed by the applicable Order Form, TOS, and Master Services Agreement.
Term: any period during which the Agreement is in force and effect.
Terms of Service (“TOS”): Specific terms and conditions, and their attachments, for Services committed under an Order Form, including but not limited to: terms of use, policies or service level agreements, that can be found on the Textkernel website. The Parties agree that the TOS shall be governed by the applicable Order Form and this Master Services Agreement.
Textkernel Content: any data, content, and information that is provided or stored by Textkernel, or that is retrieved from the Service. Textkernel Content includes Enhancements, and does not include Third Party Content, Company Content or information that Company obtained independent of Textkernel.
Third Party Content: means third party software, programs, applications, websites, or products, of which the Intellectual Property Rights and control rest with the third party, and that may be licensed under separate terms that become applicable to the Company when the Company elects to use such Third Party Content via the Services. The Services may enable Company to access and use Third Party Content, but Third Party Content is not part of the Services. Third Party Content may include, without limitation:
1) Third party applications, websites, products, and services allowing Textkernel to retrieve, search and download data on behalf of a User from an external database or system;
2) Content from third party websites collected, or linked to via the Services.
User: a person under the responsibility of Company, who has been given access to the Functionality with the Company’s consent or authority;
2) SCOPE AND STRUCTURE OF THE AGREEMENT
2.1) Each Party warrants and represents that it has the right, power and authority to enter into the Agreement and carry out its obligations hereunder.
2.2) Parties warrant and undertake to each other that they shall comply with all relevant laws, rules, regulations, and (EU) directives applicable to the provision and the receiving of the Services.
2.3) This Agreement constitutes the entire agreement and supersedes any previous agreements between the Parties relating to the subject matter of this Agreement.
2.4) Textkernel is an independent contractor of the Company, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
2.5) Textkernel’s provision of the Services to the Company is non-exclusive. Nothing in the Agreement prevents Textkernel from providing the Services to any other party.
2.6) Unless explicitly agreed otherwise in writing, the Textkernel Content is licensed or subscription based, and not sold. Except for the limited licenses and rights expressly granted to the Company in this Agreement, Textkernel reserves for itself and its licensors all other rights, title and interest.
2.7) Order of precedence: This Master Services Agreement governs all Order Forms, SOWs, TOS, and their attachments that Parties execute during the Term of this Master Services Agreement. All terms and conditions in this Master Services Agreement apply unless and only to the extent that Parties expressly agree otherwise in an Order Form, SOW or TOS. If and as far as non-explicitly agreed contradictions occur between the Master Services Agreement and the Order Form, SOW or TOS, the Master Services Agreement prevails. General (purchase) conditions of Company are expressly not applicable to the Agreement and will be dismissed.
3) CO-OPERATION AND COMMITMENTS
3.1) Textkernel shall provide the Services competently, and in accordance with this Agreement, the relevant Order Form and/or SOW, and applicable laws. From time to time, on an as needed basis, the Parties may mutually execute an Order Form or SOW.
3.2) Company shall cooperate with Textkernel in the performance of the Services by Textkernel, and Company shall provide Textkernel with all information necessary for the execution of the Agreement.
3.3) The Company may only use the Services and Textkernel Content for the Company’s own internal, lawful business purposes (including complying with laws related to unsolicited electronic messages), and only insofar as necessary for the scope and purpose as described in the Agreement.
3.4) Company may only resell or make the Services or Textkernel Content available to any third party, after obtaining Textkernel’s written approval, and only if Company requires such third party to agree in writing to terms no less protective of Textkernel than the terms of this Agreement.
4) THIRD PARTY CONTENT
4.1) Subject to the terms and conditions of the Agreement, the Company or Textkernel may use Third Party Content. Textkernel does not warrant the availability, operation and practices of Third Party Content, and shall not be responsible or liable for Third Party Content in any way.
5) INTELLECTUAL PROPERTY RIGHTS
5.1) The Intellectual Property Rights to the Services and Textkernel Content is fully vested in Textkernel and/or its licensors. Textkernel shall retain license, title, and all ownership rights to the Services and Textkernel Content.
5.2) The Intellectual Property Rights of Company Content remains the property of the Company. The Company grants Textkernel a worldwide, fully paid up, license to use, store, copy, and modify Company Content for any purpose in connection with the exercise of its rights and the performance of its obligations in accordance with the Agreement.
5.3) Intellectual Property Rights to the Third Party Content made available via the Services remain with that third party.
5.4) Textkernel shall indemnify Company for all damages finally awarded or agreed to in settlement, court costs, and reasonable attorney fees, against Company, arising out of or relating to claims stating that the Company’s use of the Services in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights, provided that:
a) Company promptly notifies Textkernel in writing of any such claim;
b) Company does not make any admission of liability, or prejudices or settles such claim without Textkernel’s prior written permission;
c) Textkernel has sole control of the defense and all related settlement negotiations, and Company gives reasonable cooperation and all information required to defend such claims.
5.5) The indemnity in section 5.4 does not apply to the extent the claim is based upon:
a) modifications to the Services if such modifications were not made or expressly authorized by Textkernel or were made by Textkernel in compliance with Company’s designs, specifications or instructions; or
b) use of the Services by Company in breach of the Documentation or the Agreement.
5.6) If at any time a claim as mentioned in section 5.4 is made, or in Textkernel’s reasonable opinion is likely to be made, then in defense or settlement of such claim, Textkernel may (at Textkernel’s discretion):
a) obtain for the Company the right to continue using the items which are the subject of such claim; or
b) modify, re-perform or replace the items which are the subject of such claim so they become non-infringing.
5.7) The rights granted to Company under this section 5 shall be Company’s sole and exclusive remedy for any alleged infringement of any third party Intellectual Proprietary Rights.
5.8) Company shall indemnify and will defend and hold Textkernel harmless against all claims from third parties related to:
a) Company’s or Company’s Users use of the Services and Textkernel Content in breach of the Documentation, the Agreement, or applicable law, that are not claims arising out of or related to section 5.4;
b) Company Content infringing the Intellectual Property Rights of that third party;
c) Company Content that is incorrect or misleading.
Textkernel shall provide Company with prompt notice of any such claims, allow the Company sole control of the defense, and shall reasonably cooperate with the Company in defending such claims.
6) CONFIDENTIALITY
6.1) Each Party shall retain all right, title and interest to such Party’s Confidential Information disclosed to the other Party.
6.2) Each Party must, unless it has the prior written consent of the other Party:
a) keep confidential at all times the Confidential Information of the other Party; and
b) not violate any rights, title and interests of the disclosing Party to the Confidential Information; and
c) effect and maintain adequate security measures to safeguard the other Party’s Confidential Information from unauthorized access or use; and
d) disclose the other Party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other Party’s Confidential Information is aware of, and complies with, the provisions of section 6 of this Agreement; and
e) not reverse engineer, disassemble, copy or decompile any prototypes, software, data, or other tangible objects which embody Confidential Information; and
f) not otherwise attempt to derive or obtain information about the functioning, composition or operation of the Services/services and the Confidential Information therein; and
g) not use the Confidential Information to inform or create a product or service that is similar to the other Party’s product or service.
6.3) The obligation of confidentiality in section 6.2 does not apply to any disclosure or use of Confidential Information:
a) for the purpose of performing the Agreement or exercising a Party’s rights under the Agreement;
b) required by law;
c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d) which was rightfully received by a Party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality.
6.4) Each Party shall immediately inform the other Party of any Security Breach. The Parties agree that such breaches entitle the non-breaching Party to seek injunctive relief, in addition to any other legal or equitable remedies available to it.
7) PRIVACY AND DATA PROTECTION
7.1) Each Party acknowledges and agrees that any Personal Information transferred under this Agreement was and is obtained, held, stored, deleted, processed and – if relevant – transferred in accordance with the Data Protection Laws and the Textkernel Data Processing Agreement.
8) INVOICING AND PAYMENT
8.1) All fees quoted in this Agreement or an Order Form or SOW exclude any taxes.
8.2) Unless otherwise agreed in the Order Form, all fees are firm for the term specified in the Order Form or SOW, or – if no term is determined – for a term of 12 months. If no price adjustment is mentioned, Textkernel shall apply an annual price increase of 4% to the Services in the Order form for auto-renewable Agreement.
8.3) The Parties shall comply with the payment schedule specified in the Order Form or SOW. If the Order Form or SOW does not contain a payment schedule, Textkernel shall issue invoices for licenses or subscriptions on an Order Form per 12-month term in advance, and for work included on a SOW after performance of such work.
8.4) Invoices will contain an itemized description of all expenses, charges, costs, Service descriptions, and all state, federal, sales, or other applicable taxes separately.
8.5) Unless specifically stated otherwise in the Order Form or SOW, Company shall pay the invoice(s) within thirty (30) days after the invoice date.
8.6) If Company wholly or partially disputes the invoice, it must notify Textkernel accordingly within fourteen (14) calendar days of invoice date in writing, carefully stating the reasons. Disputing the invoice does not discharge Company from its obligation to pay the invoice. Textkernel and Company shall use their best efforts to resolve any disputes over an invoice carefully and without any undue delay.
8.7) In the event Company fails to pay any amount payable by it under the Agreement, Textkernel shall be entitled, but not obliged, to charge Company interest on the overdue amount, payable by Company forthwith on demand, from the due date up to the date of actual payment, at the rate of 1% per month on the outstanding sum with any part of the month being calculated as a full month.
8.8) If Company has arrears in payment of more than six (6) weeks, Textkernel has the right to suspend the fulfillment of its obligations pursuant to all Order Forms or SOW’s, without being liable for damages in connection with this suspension or cancellation. All reasonable costs that Textkernel incurs as a result of Company’s non-compliance with its obligations pursuant to this provision shall be borne by Company in full.
9) TRAVEL EXPENSES
9.1) Company shall reimburse Textkernel for all pre-approved, reasonable and necessary travel costs of Textkernel personnel incurred in connection with this Agreement. Company will not be responsible for expenses incurred by Textkernel that are not clearly documented or do not have proper receipts.
10) TERM AND TERMINATION
10.1) This Agreement shall be effective from the date of mutual execution for a minimum Term of twelve (12) months. Thereafter it shall be automatically renewed for successive Terms of twelve (12) months, unless either Party gives written notice to the other Party of at least three (3) months prior to the expiry of such Term.
10.2) Unless any pending Order Forms/SOWs are also expressly terminated as permitted by this Agreement and/or the relevant Order Form/SOW, upon expiration or termination of this Agreement for any reason, all Order Forms/SOW’s then in effect hereunder and all license rights granted pursuant to this Agreement and/or any Order Form/SOW will continue in accordance with their terms, in which case this Agreement will continue in effect with respect to such pending Order Forms/SOWs until the completion of such Order Forms/SOWs.
10.3) Either Party may, by notice to the other Party, immediately terminate the Agreement if the other Party:
i) breaches any material provision of the Agreement and the breach is not:
remedied within 20 business days of the receipt of a notice from the first Party requiring it to remedy the breach; or
capable of being remedied;
ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
iii) is unable to perform a material obligation under the Agreement for 30 days or more due to a Force Majeure Event;
iv) has arrears in payment of more than six (6) weeks under this Agreement.
If the remedies in section 5.6 above are exhausted without remedying or settling the intellectual property infringement claim, Textkernel may, by notice to the Company, immediately terminate the Agreement.
10.4) If Company undergoes a Change of Control, Textkernel may choose to terminate this Agreement by giving Company 30 days’ written notice.
10.5) Upon termination or expiry of the Agreement, or upon the request of the disclosing Party, the receiving Party must promptly return or destroy all Confidential Information of the disclosing Party, and provide a written certification of such retour or destruction.
10.6) Except as otherwise set forth in this Agreement, Company shall return all licensed intellectual property, and all tangible embodiments thereof, to Textkernel. Upon the expiration or other termination of this Agreement, Company shall have no further rights of use thereof.
10.7) Termination or expiry of the Agreement does not affect either Party’s rights and obligations that accrued before that termination or expiry. This includes Parties accrued rights and obligations regarding indemnity, confidentiality, liability, data protection, Intellectual Property Rights, and governing law.
11) LIABILITY
11.1) The maximum aggregate liability of the Parties under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the amount paid or payable by the Company during the twelve (12) months before the liability arose.
11.2) In no event shall a Party be liable to the other Party under or in connection with the Agreement or the Services for any:
a) loss of profit, revenue, savings, business, use, data, and/or goodwill; or
b) consequential, indirect, incidental, punitive, or special damage or loss of any kind.
11.3) Section 11.1 shall not apply to limit a Party’s liability under this Agreement with respect to:
a) Breach of section 5 (Intellectual Property Rights);
b) Breach of section 6 (Confidentiality);
c) Breach of Data Protection Laws or Data Protection provisions in the Agreement;
d) Death or personal injury;
e) Fraud or willful misconduct;
f) Any other losses which cannot be excluded or limited by applicable law.
12) LAW AND JURISDICTION
12.1) If Company is located within the United States, these Terms shall be governed by, construed, and interpreted in accordance with the laws of the State of New York, without regard to principles of conflict of laws. Any disputes arising out of or in connection with this Agreement shall be exclusively submitted to the competent state or federal court located in New York, New York.
12.2) If Company is located outside of the United states, this Agreement shall be governed by, interpreted, and construed in accordance with the laws of the Netherlands. Any disputes arising out of or in connection with this Agreement shall be exclusively submitted to the competent court in The Hague.
12.3) Section 12.1 and 12.2 leave unimpaired the obligation of both Parties to make supreme effort to solve disputes connected to the Agreement, as much as possible amicably, by mutual agreement.
13) MISCELLANEOUS
13.1) Company shall not assign, sub-license, subcontract, charge or otherwise encumber any of its rights or obligations under this Agreement without the prior written consent of Textkernel, which shall not be unreasonably withheld. Any Change of Control of the Company is deemed to be an assignment for which Textkernel’s prior written consent is required.
13.2) Textkernel has the sole right to verify compliance of the Agreement by Company, through an audit during the Term of the Agreement. Textkernel agrees to bear all costs incurred by it in relation to the audit, unless the audit results show material errors in the compliance of the Agreement by Company.
13.3) Textkernel reserves the right to amend this MSA and any accompanying document without prior notice. Any changes to these terms will become effective immediately upon publication on the Textkernel website or other official communication channels.Textkernel will make reasonable efforts to notify Company of any significant changes to the terms and conditions in accordance with section 13.5. If Textkernel sends Company a written notice of an amendment, then such Amendment will be deemed accepted by the passage of 10 days from the notice date without Textkernel receiving a written rejection of the amendment from Company. If Company disagrees with any amendments to these terms and conditions, Company may terminate the agreement in accordance with the termination clause outlined in section 10.1. If Company however continues to use the services provided by Textkernel, Company accepts and agrees to any and all changes to these terms and conditions.
13.4) Verbal statements, promises or agreements connected to the execution of the Agreement have no legal effect unless these are confirmed in writing by both Parties.
13.5) Any notice or other communication will be deemed to be properly given only when sent via a recognized courier or confirmed e-mail, the contact information as provided on the Order Form shall be deemed the primary contact for sending notices. It is either Party’s sole responsibility to ensure that the other Party is informed of any changes or updates in the primary contact details.
13.6) Upon occurrence of a Force Majeure Event, the non-performing Party shall promptly notify the other Party of occurrence of that Force Majeure Event, its effect on performance, and how long that Party expects it to last. Thereafter the non-performing Party shall update that information as reasonably necessary. During a Force Majeure Event, the non-performing Party shall use reasonable efforts to limit damages to the other Party and to resume its performance under this Agreement.
13.7) The fact that a Party does not demand fulfillment or exercise a right or authority it has under the Agreement, to demand from any stipulation within a mentioned Term of the Agreement, does not affect the right to still demand fulfillment or exercise such right, unless this Party expressly and in writing has waived such right.
13.8) If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
13.9) During the Term of this Agreement, Textkernel can reference the Company as a customer.
