Viva Tracker Master Services Agreement

Last Updated: January 27th, 2022

This Master Services Agreement (“Agreement”) governs the Client’s access to and use of the System provided by Service Provider (each as defined in this Agreement).

1. Background

Service Provider has experience and technical expertise in the development of website applications and wireless businesses. Client has expressed a desire to utilize the Service Provider’s products (collectively, the ​“System”, as further described in this Agreement) and Service Provider wishes to host, manage and support the System for the Client’s business on the terms and conditions set forth in this Agreement.

2. Acceptance

By executing a quote or any other document that references this Agreement (a ​“Quote”), Client agrees to this Agreement.

The individual accepting this Agreement is accepting on behalf of the legal entity identified in the Quote. Such individual represents that they have the authority to bind such entity to this Agreement, and the term ​“Client” will refer to such entity. ​“Service Provider” will refer to the Viva Tracker business entity identified in the Quote. Service Provider and Client will each be referred to individually as a ​“Party” and together as the ​“Parties”. This Agreement will be effective upon the date the earliest applicable Quote is executed (the ​“Effective Date”).

In the event of any direct conflict or inconsistency between the terms of the Quote and this Agreement, then the terms of the Quote will control.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

3. System Provisioning

3.1. System Description

Service Provider will provide access to the System; a web-based user interface product which allows transaction records to be entered for the purposes of reconciling and/​or reporting. The System’s functionality is generally utilized for the following areas based on user security access and/​or product schedule:

  1. Transaction tracking
  2. Reconciliation tools
  3. Commission reporting
  4. Punch clock
  5. Scheduling
  6. Call backs
  7. Document storage

3.2. Product Schedules

Additional products may be listed in the Quote. Pursuant to this Section 3.2 (Product Schedules), if such product is listed below, such product will form a part of the System and, where applicable, will be subject to the corresponding product terms (each a ​“Product Schedule”). The Parties acknowledge and agree that Service Provider may amend this section without notice to Client, only to add additional products and their corresponding Product Schedules, if any.

3.3. System License Grant

Subject to Client’s compliance with the terms of this Agreement, Service Provider hereby grants Client a limited, non-exclusive and non-transferable license to, where applicable, download, install, display, perform, access and use the System, which includes access to and use of online dashboards, creation and use of user accounts on the System, for the sole use of Client. Client will use the System only in compliance with this Agreement, Service Provider’s standard policies then in effect and all applicable laws (including but not limited to laws related to privacy and intellectual property).

3.4. Reservation of Rights

Client acknowledges that the System is licensed, not sold, to Client. Service Provider reserves all rights in and to the System not expressly granted to Client under this Agreement. Client does not acquire any ownership interest in the System under this Agreement. Service Provider and its licensors and service providers reserve and retain the entire right title and interest in and to the System, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to Client in this Agreement. The wordmarks ​“Viva Tracker” and the ​“Viva Tracker” logo and all associated marks and logos displayed within the System are Service Provider’s (or Service Provider’s licensor’s) trademarks (unless otherwise noted).

3.5. Maintenance

Scheduled system maintenance may take place from time to time, and during such time, the System or elements thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure. Client specifically acknowledges that outages and downtime may occur.

3.6. Updates

Service Provider may develop and provide updates to the System from time to time, which may include upgrades, bug fixes, patches and other corrections or new features (collectively, ​“Updates”). Updates may also modify or delete in their entirety certain features or functionality. Service Provider has no obligation to provide any Updates or to continue to provide or enable any particular feature or functionality. Client further agrees that all Updates will be deemed part of the System and subject to the terms of this Agreement.

4. Responsibilities and Restrictions

4.1. General Responsibilities

During the Term, Service Provider will provide and maintain the System for the Client, in accordance with the specifications and standards set out in the Agreement, and any other mutually agreed upon documents entered into pursuant to this Agreement (each, a ​“Schedule”).

4.2. Subcontractors

Service Provider will have full discretion to assign personnel and/​or to engage independent contractors, including its affiliates, to perform any of the services under this Agreement.

4.3. Restrictions

Client will not:

  1. create a user account using a false identity or inaccurate information;
  2. use the System to transmit unauthorized communications, advertise, solicit, or transmit any commercial advertisements, including chain letters, junk email or repetitive messages (spim and spam) to anyone;
  3. collect, harvest or post anyone’s private information, including personally identifiable information of any kind through the System without appropriate consent;
  4. use the System in a manner that infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or any other rights of any third party;
  5. use, reuse, repost, distribute, provide access to others to, copy, modify, or transmit the System and related information for any commercial purpose or for public use;
  6. attempt to gain access to the System, accounts registered to others or to the computers, servers, or networks connected to the System by any means other than the user interface provided by Service Provider and through Client’s user accounts, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, server or software that is part of the System;
  7. interfere or attempt to interfere with the proper functioning of the System or connect to or use the System in any way not expressly permitted by this Agreement or the Terms;
  8. reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the System, or to obtain any information from the System using any method not expressly permitted by Service Provider;
  9. allow any third party to have access to the System, other than Client’s directors, officers, employees, contract workers, agents, owners, shareholders, affiliates, partners, and licensors of such Party and any other representatives that have been authorized in writing by the other Party (“Representatives”);
  10. remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the System; or
  11. introduce malicious software into the System.

5. Fees and Payment

5.1. Fees and Invoices

Service Provider will collect and Client will pay the fees outlined in the Quote (the ​“Fees”) and as otherwise mutually agreed to. Sales tax is applicable on Fees and payable by the Client based on the tax applicable in the jurisdiction where the Transaction occurs or Client is located, as applicable.

Service Provider will issue an invoice for all Fees on a monthly basis or the expiration or termination of this Agreement. Client will pay invoices within fifteen (15) days after the date on which Client receives the invoice.

5.2. Delinquent Fees

Service Provider reserves the right to suspend or terminate Client’s access to the System, in addition to all of its other rights and remedies, in the event that any Fees become overdue (“Delinquent Fees”) and are not paid within 14 days following notice from Service Provider (which notice may be communicated via email or phone) (“Initial Notice”). If any Delinquent Fees continue to be unpaid for more than 14 days from the Initial Notice, Service Provider may issue an additional notice to the Client setting out a further 14-day period, following which period, if any Delinquent Fees remain unpaid, this Agreement may be terminated at Service Provider’s option. Delinquent Fees are subject to interest charges of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.

5.3. Consequences of Termination

If Client or Service Provider initiates termination of this Agreement, Client will be obligated to pay any Fees due or amounts payable. Client agrees and acknowledges that Service Provider has no obligation to retain Client’s data and that such data may be irretrievably deleted if Client’s account becomes delinquent.

6. Term/​Termination

6.1. Term

The initial term of this Agreement will commence on the Effective Date and will continue for a period of 12 months (the ​“Initial Term”), unless terminated earlier by either Party in accordance with the provisions of this Agreement or unless the Parties expressly agree in writing to terminate early or extend the term of this Agreement. This Agreement will automatically renew for additional 12-month terms unless either Party gives notice 60 days prior to the end of the then-current term (each, a ​“Renewal Term”; together with the Initial Term, the ​“Term”). Unless otherwise specified in an applicable schedule and subject to the terms and conditions of this Agreement, Service Provider will provide access to the System, and Client will receive and pay for the System for the entirety of the Term.

6.2. Termination for Non-Compliance

If either Party violates its material obligations (including payment obligations) hereunder, the other Party may send a notice of non-compliance to the non-complying Party. Upon receiving such a notice, the non-complying Party will have sixty (60) days from the date of receipt of the notice to cure any such non-compliance. If such non-compliance is not cured within the required sixty (60) day period, the Party providing the notice will have the right to terminate this Agreement as of the 61st day after the receipt of the notice. This section is subject to and in addition to any provisions in this Agreement that provide remedies for Delinquent Fees.

6.3. Termination for Insolvency

Either Party will have the right to immediately terminate this Agreement upon the written notice to the other Party if the other Party:

  1. ceases to carry on active business;
  2. becomes insolvent;
  3. files or has filed against it a petition (or other document) under any bankruptcy or similar law;
  4. proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors; or
  5. its assets are taken into the possession of a receiver, trustee, custodian or similar agent.

6.4. Consequences of Termination/​Expiration

On expiration or termination of this Agreement:

  1. Service Provider will return or delete all Client Data;
  2. each Party will perform the Party’s obligations arising on expiration or termination of this Agreement; and
  3. each Party will remain responsible and liable for all of the Party’s obligations and liabilities arising prior to expiration or termination of this Agreement.

6.5. Survival

Notwithstanding any other provision of this Agreement, the following sections, Section 5 (Fees and Payment), Section 6.4 (Consequences of Termination/​Expiration), Section 6.5 (Survival), Section 7 (Confidentiality), Section 8 (Ownership and Intellectual Property), Section 11 (Liability Limitations and Exclusions), Section 13 (General), and all other provisions of this Agreement necessary to the interpretation or enforcement of those sections, will survive the expiration or termination of this Agreement and will remain in full force and effect and be binding on the Parties as applicable.

7. Confidentiality

7.1. Confidential Information

“Confidential Information” means information that one Party discloses to the other Party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.

7.2. Confidentiality Obligations

The recipient of any Confidential Information will not disclose that Confidential Information except to its Representatives who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the Confidential Information only to exercise rights and fulfill obligations under this Agreement, and that they keep such information in confidence, using not less than a reasonable standard of care. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law, and only to the extent required.

7.3. Ownership of Confidential Information

Confidential Information will, at all times, remain the sole property of the disclosing Party. The disclosure of Confidential Information to the recipient will not constitute an express or implied grant to the recipient or any of its Representatives of any rights to or under the Confidential Information. At the earlier of either (i) the termination of this Agreement, or (ii) at the disclosing Party’s request, all Confidential Information in the recipient’s possession or control will be either returned promptly to the disclosing Party or destroyed by secure means of destruction and upon request, the recipient will provide to the disclosing Party written certification that all such Confidential Information has been either returned to the disclosing Party or destroyed. The recipient may, upon providing written notice of same to the disclosing Party, retain copies of Confidential Information only if and to the extent that such retention is required by applicable law by documented contractual obligation and will retain only that portion of the Confidential Information which is legally required for the recipient to comply. Notwithstanding the return, destruction or retention of the Confidential Information, the recipient will continue to be bound by its confidentiality obligations hereunder concerning Confidential Information in accordance with the terms of this Agreement.

8. Ownership and Intellectual Property

8.1. The System

As between the Parties, Service Provider will solely own and retain all rights, title and interests in, to and associated with the System (including all software and other technologies used by Service Provider to implement, deploy and operate the System) and all related intellectual property rights.

Client will retain all right, title and interest in and to all of its intellectual property rights in any text, images or other components it provided to the Service Provider for use in the development of the subject System. The Client agrees that Service Provider may place a link consisting of Client’s logo and copyright information, if any, on each and every page of the subject System.

9. Data and Privacy

9.1. Client Data

Client Data means any data or information stored, transmitted or processed through the System by or on the behalf of Client or its Representatives. Service Provider may (and Client authorizes Service Provider to) store, access, use, process, and transmit Client Data for the sole purpose of providing the System. Service Provider agrees that Client Data are and remain the property of Client. Service Provider may obtain Client Data directly from Client, and/​or indirectly, such as via a third party integration.

9.2. Personally Identifiable Information

Client will collect, enter, transmit, store or otherwise deal with personally identifiable information in a manner consistent with the intended design of the System and upon request, will provide reasonable support to Service Provider in complying with applicable privacy and data protection laws. Notwithstanding any provisions to the contrary herein, Client agrees that all aggregated, anonymized, general information collected and created by Service Provider is and will remain the exclusive property of Service Provider.

10. Representations/​Warranties and Disclaimers

10.1. Mutual Representations/​Warranties

Each Party represents and warrants that:

  1. the Party has, and will have at all material times, all requisite corporate power, capacity, authority and approvals to enter into, execute and deliver this Agreement and to perform the Party’s obligations and exercise the Party’s rights under this Agreement; and
  2. the Party’s execution and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that the Party now or in the future owes to any other person.

10.2. Service Warranty

Service Provider warrants during the Term that the System will perform materially in accordance with the specifications and standards set out in this Agreement and any other applicable Schedules.

10.3. Client Warranty

Client hereby warrants that everything it supplies to Service Provider for inclusion in the subject System is legally owned or licensed to the Client and is not the subject of any infringement on the intellectual property rights of any third party.

10.4. Disclaimer

Except as expressly provided for herein, to the fullest extent permitted by law, the System and all related components and information are provided on an ​“as is” and ​“as available” basis without any warranties of any kind, and Service Provider and its Representatives expressly disclaim any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Client acknowledges that Service Provider does not warrant that the System will be uninterrupted, timely, secure, or error-free. Each Party disclaims all liability and indemnification obligations for any harm or damages caused by any third party service providers.

11. Liability Limitations and Exclusions

11.1. Exclusions

Notwithstanding any provision of this Agreement and to the maximum extent permitted by applicable law, the liability (if any) of each Party and its Representatives to the other Party and its Representatives arising from, connected with or relating to this Agreement, the subject matter of this Agreement and the resulting relationship between the Parties is limited to direct damages suffered by the other Party only, and in no event and under no circumstances will either Party or any of its Representatives be liable to the other Party or any of its Representatives for any indirect, incidental, consequential, special, exemplary or punitive loss or damage of any nature or kind whatsoever or for any loss of data, loss of information, loss of business, loss of markets, loss of savings, loss of income, loss of profits, loss of use, loss of production or loss of goodwill, anticipated or otherwise.

11.2. Limitations

Notwithstanding any provision of this Agreement and to the maximum extent permitted by applicable law, and in addition to the exclusions outlined in Section 11.1 (Exclusions), in no event and under no circumstances will the total aggregate liability of either Party and its Representatives to the other Party and its Representatives arising from, connected with or relating to this Agreement, the subject matter of this Agreement (including the System) and the resulting relationship between the Parties ever exceed the Fees paid under this Agreement in the past 12 months.

11.3. Application

Notwithstanding any provision of this Agreement and to the maximum extent permitted by applicable law, each of Section 11.1 (Exclusions) and Section 11.2 (Limitations) applies to liability under any theory (including contract, tort, strict liability and statutory liability), regardless of any negligence or other fault or wrongdoing by the liable Party or any of its Representatives, even if other remedies are not available or do not adequately compensate for the loss or damage, even if the liable Party knows or ought to have known of the possibility of the loss or damage being incurred, and regardless of whether or not the loss or damage was foreseeable.

12. Indemnities

12.1. Service Provider

Service Provider will indemnify Client for losses on account of or arising from a third party claim that the System infringes the copyright, US patent, Canadian patent, or misappropriates the trade secrets, of such third party; provided, however, that Service Provider is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise.

The foregoing indemnification obligations will not apply with respect to the System or portions or components thereof:

  1. that are made in whole or in part in accordance with Client’s specifications;
  2. that are modified after shipment other than by any party other than Service Provider or its Representatives, if the alleged infringement relates to such modification; or
  3. that are combined with third party products, processes, or materials where the alleged infringement relates to such combination.

12.2. Potential Infringement

In addition to Section 12.1 (Service Provider), if the System becomes, or in Service Provider’s reasonable judgment is likely to become, the subject of a claim of infringement, Service Provider may, at its option:

  1. procure, at Service Provider’s expense, the right for Client to use the System and all parts thereof, or
  2. replace the System or any part thereof that is in breach with services of comparable functionality that do not cause any breach.

If Service Provider, in its sole and reasonable judgment, determines that neither options 1 or 2 is commercially reasonable, then Service Provider may suspend or terminate Client’s use of the affected portions of the System and provide Client with a pro-rata refund of prepaid unused Fees.

12.3. Client

Client will indemnify, defend and hold harmless Service Provider and its Representatives any and all losses arising from, or connected with:

  1. any use or misuse of the System by Client or its Representatives;
  2. any breach of this Agreement by Client, or any act or omission by Client’s Representatives that would be a breach of this Agreement if it were an act or omission by Client; and
  3. any claim by a Client’s Representatives arising as a result of or relating to this Agreement or the System.

13. General

13.1. Force Majeure

If performance by Service Provider of any of its obligation under the terms of this Agreement is interrupted or delayed by an act of God, by acts of war, riot, or civil commotion, by failure of computer equipment, including loss of data, power grid failure, or internet service disruption, or by an act of State, by strikes, fire, flood, or by the occurrence of any other event beyond the control of the Parties hereto, that party will be excused from such performance for the same amount of time as such occurrence will have lasted OR for such period of time as is reasonably necessary after such occurrence abates for the effect thereof to have dissipated.

13.2. Governing Law and Disputes

The governing law and the location to resolve disputes will be determined by the Viva Tracker entity with whom Client contracts with. The Parties acknowledge and agree that Service Provider may amend this section without notice to Client, only to add additional entities.

13.3. Notices

Except as expressly set out in this Agreement, all notices to be given under this Agreement will be sent via email or registered mail to the addresses provided in the Quote.

13.4. Severability

If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be unenforceable or invalid for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions of this Agreement will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose.

13.5. Remedies

Except as expressly set out in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which the Party may be entitled under this Agreement or at law, and each Party may pursue any and all of the Party’s rights and remedies concurrently, consecutively and alternatively. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorney fees in addition to any other cost and/​or relief to which that party may be entitled.

13.6. No Waiver

No consent or waiver by a Party to or of any breach of this Agreement by the other Party will be effective unless in writing and signed by both Parties, or deemed or construed to be a consent to or waiver of a continuing breach or any other breach of this Agreement by the other Party.

13.7. Further Acts

Each Party will execute any further documents and do any further acts that may be necessary to lawfully implement and carry out the intent of this Agreement.

13.8. Amendments

Unless otherwise specified, the Parties may amend this Agreement only by a written agreement duly executed by persons authorized to execute agreements on behalf of the Parties.

13.9. Assignment

Service Provider may transfer or assign this Agreement or any of its rights or obligations under this Agreement upon written notice to Client.

13.10. Counterparts

If a document that is part of this Agreement or relates to this Agreement requires the signature of both Parties, then the document may be signed and delivered (including by email in PDF or similar format) in counterparts, and each signed and delivered counterpart will be deemed an original, and both counterparts will together constitute one and the same document.

13.11. Entire Agreement

This Agreement sets out the complete agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties regarding the subject matter of this Agreement other than as expressly set out or referenced in this Agreement.