GTR Master Services Agreement
Last updated: June 7, 2022
1.1“Authorized Users” means Customer’s employees who are authorized to use the Services on Customer’s behalf under this Agreement.
1.2“Hosted Services” means GTR’s proprietary software-as-a-service platform to be provided under this Agreement pursuant to an Order.
1.3“Order” means a mutually agreed upon and executed order referencing the terms of this Agreement and setting forth the particular Services to be provided under this Agreement.
1.4“Professional Services” means services such as training, configuration, integration, consultation, feature acceleration, and similar professional services, if any, identified in an Order.
1.5“Services” means any and all Hosted Services, Professional Services, and/or Support and Maintenance Services. For the avoidance of doubt, the Services do not include Third-Party Services.
1.6“Subscription Term” means, with respect to any Hosted Services and/or Support and Maintenance Services, the subscription term(s) for such Services as set forth in the applicable Order
1.7“Support and Maintenance Services” means the technical support services specified in Section 2.2 with respect to the Hosted Services.
2.1Hosted Services. Subject to Customer’s ongoing compliance with this Agreement, GTR hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right during the applicable Subscription Term to allow Authorized Users to access and use the Hosted Services solely for Customer’s internal business purposes.
2.2Authorized Users. Customer is responsible for: (i) identifying and authenticating all Authorized Users, (ii) approving access by such Authorized Users to the Services, (iii) controlling against unauthorized access by Authorized Users, (iv) maintaining the confidentiality of usernames, passwords and account information, and (v) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts as a result of Customer’s or Customer’s Authorized Users’ access to the Services. GTR is not responsible for any harm caused by Customer’s Authorized Users. Customer will notify GTR immediately of any unauthorized use. Customer is solely responsible for ensuring compliance with this Agreement by its Authorized Users and any breach of this Agreement by an Authorized User will be deemed a breach by Customer.
2.3Support and Maintenance Services. Subject to Customer’s ongoing compliance with this Agreement, GTR agrees to (i) provide reasonable technical support to Customer, by email or telephone, during GTR’s normal business hours of 9am-5pm ET on weekdays, excluding US holidays (“Support Hours”); and (ii) use commercially reasonable efforts to respond to support requests in a timely manner. Customer may request support by calling your assigned Client Success Manager or by emailing [email protected].
2.4Professional Services. Subject to Customer’s ongoing compliance with the terms of this Agreement, GTR will use commercially reasonable efforts to provide to Customer the Professional Services, if any, set forth in each Order. Nothing in this Agreement or any Order shall be understood to prevent GTR from developing similar work product or deliverables for other customers.
2.5Restrictions. Customer will not (and will ensure that its Authorized Users do not), directly or indirectly, and will not authorize any third party to, (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how of the Hosted Services, or reconstruct, or discover any hidden or non-public elements of the Hosted Services; (ii) translate, adapt, or modify the Hosted Services; (iii) write or develop any program based upon the Hosted Services, or any portion or software applications thereof, or otherwise use the Services in any manner for the purpose of developing, distributing, or making accessible products or services that compete with any or all of the Services; (iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Services or any rights thereto; (v) permit the Services to be used by any persons other than Authorized Users; (vi) transmit unlawful, infringing, harmful, or other data or code which Customer is not authorized to transmit either to or from the Hosted Services; (vii) alter or remove any trademarks or proprietary notices contained in or on the Services; (viii) use the Services in a manner that violates this Agreement, any third party rights or any applicable laws, rules or regulations; or (ix) otherwise use the Services or any GTR IP (as defined below) except as expressly permitted hereunder. GTR may, but is under no obligation to, monitor Customer’s use of the Hosted Service.
2.6Additional Customer Responsibilities. Customer acknowledges that the successful and timely provision of the Services shall require the good faith cooperation of Customer. GTR shall not be liable for any failure to provide the Services that arises from Customer’s failure to cooperate in good faith with GTR. Customer is solely responsible for obtaining all third-party technologies and connectivity necessary to access and use the Hosted Services. [GPDR Specialist at WBD to add language regarding customer’s responsibility and compliance with privacy laws and GDPR]
3.1Fees. Customer will pay GTR all fees of the type, amount and in accordance with the payment schedule set forth in each Order (“Fees”). If Customer’s actual use of the Services exceeds the quantity, capacity or other license or service units for which Fees have been paid under the applicable Order, then Customer may be required to pay for such additional use. Customer agrees to promptly reimburse GTR upon invoice for any actual, out-of-pocket travel and lodging expenses incurred by GTR in connection with any Professional Services set forth on an Order. Except as otherwise expressly set forth in an applicable Order, all Fees are non-refundable and non-recoupable.
3.2Payment Terms. Unless otherwise set forth in the applicable Order, all Fees for Hosted Services will be billed annually in advance. With respect to Fees for Professional Services, unless otherwise set forth in an applicable Order, 75% of the Fees shall be payable upon execution of the Order and the remaining shall be invoiced upon completion of the Professional Services, no later than 30 days from the final date of the end of the event. All invoices for Fees are due and payable in United States dollars within 30 days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by law.
3.3Taxes. Customer must pay or reimburse GTR for 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 GTR’s net income).
4.TERM AND TERMINATION
4.1Term. This Agreement will start on the Effective Date and, unless terminated earlier in accordance with this Agreement, will continue for a period of one (1) year (the “Initial Term”) and shall automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party gives written notice to the other party of its intent not to renew the Term not less than sixty (60) days prior to the expiration of the then current Initial Term or Renewal Term, provided, that the sole effect of terminating this Agreement will be to terminate the ability of the parties to enter into subsequent Orders under this Agreement. Any expiration or termination of this Agreement will not, by itself, result in the termination of any Order entered into under this Agreement and the terms of this Agreement incorporated by reference into any such Order will continue in effect with respect to such Order until such Order expires or is terminated. The subscription term for the Hosted Services shall be specified in each Order and the obligations with respect to any Professional Services set forth in any Order shall expire upon completion of the Professional Services.
4.2Termination. Either party may terminate this Agreement or any Order hereto by written notice if the other party is in material breach of this Agreement or such Order, where such material breach is not cured within 30 days after written notice of such breach. If Customer fails to pay within 10 days after written notice of nonpayment of any amounts owed to GTR, such nonpayment shall be deemed a material breach. This Agreement and any Orders may be terminated by either party with immediate effect upon the occurrence of a Bankruptcy Event regarding the other party. “Bankruptcy Event” means the occurrence of any one or more of the following events in respect of such party: (i) it ceases to carry on its business; (ii) a receiver or similar officer is appointed for its business, property, affairs or revenues and such proceedings continue for 45 days; (iii) it becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (iv) proceedings under bankruptcy or insolvency laws are commenced by or against it and are not dismissed within 45 days.
4.3Effect of Termination. Upon the expiration or termination of any Order for any reason: (i) access to the Services provided in such Order will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) each party will promptly return or destroy, in accordance with the other party’s reasonable specifications, any Confidential Information of the other party then in its possession or control. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 2.5, 3 (with respect to Fees payable), 4.3, 5, 6, 7.2, 8, 9, 10, and 11.
5.1Ownership. Except for the limited license rights expressly granted in this Agreement, GTR owns and retains all rights, title and interest, including all intellectual property rights, in and to all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining to the Services (including without limitation any Changes and Updates) (“GTR IP”), and nothing in this Agreement will preclude or restrict GTR from using or exploiting any concepts, ideas, techniques or know-how of or related to the GTR IP or otherwise arising in connection with GTR’s provision of the Services.
5.2Third Party Technology. GTR may provide Customer with access to text, files, images, applications, graphics, illustrations, information, data, and other technology that are obtained or derived from third party sources outside of GTR and made available to Customer through or in conjunction with Customer’s use of the Services (“Third Party Technology”). The third party owner or provider of any such Third Party Technology retains all ownership and intellectual property rights in and to that technology, and Customer’s rights to use such Third Party Technology are subject to, and governed by, the terms applicable to such technology as specified by such third party owner or provider. All Third Party Technology is provided on a “as is” and “as available” basis without any warranty of any kind.
5.3Feedback. If Customer or any user or recipient of the Services provides comments, suggestions, or feedback to GTR concerning the Services or any GTR IP (“Feedback”), GTR may use, modify, and incorporate such Feedback to improve or enhance the Services or its other products and services, and Customer hereby grants to GTR a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction.
6.1Definition. “Confidential Information” means (i) any information disclosed, directly or indirectly, by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature, and (ii) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, the GTR IP and Usage Data (as defined below) are the Confidential Information of GTR, and the Customer Data (as defined below) is the Confidential Information of Customer. The terms (but not the existence) of this Agreement are each party’s Confidential Information. However, 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 without a duty of confidentiality owed to the Disclosing Party 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, or reference to, the Disclosing Party’s Confidential Information.
6.2Use; 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: (i) to perform its obligations hereunder; (ii) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, (iii) at the Disclosing Party’s direction; or (iv) where the Receiving Party becomes legally compelled to disclose Confidential Information, notwithstanding the Receiving Party’s having given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential information (if permitted by applicable law). Each party will take at least reasonable measures and care 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.
7.1General. Any non-public data provided by Customer to GTR, whether submitted to the Hosted Services web-accessible interface or delivered to GTR by Customer, shall be deemed “Customer Data.” In regard to any protected personal information within the Customer Data, both parties agree that Customer is the data controller and GTR is the data processor. Notwithstanding the foregoing, Customer Data does not include any information that is data independently derived by GTR through analysis of the Customer Data or Usage Data (as defined below, and to the extent such derived data does not itself contain Customer Data). GTR will implement commercially reasonable measures to protect the Hosted Services against unauthorized access to Customer Data.
7.2License. Except for the limited rights granted in this Agreement, Customer retains all right, title, and interest in and to the Customer Data. Customer hereby grants to GTR and its affiliates a worldwide, irrevocable, perpetual, sublicensable, royalty-free license (i) to use all Customer Data and other data made available to GTR by or on behalf of Customer to perform its obligations hereunder; (ii) to use any non-personally identifiable information related to Customer’s use of the Services (“Usage Data”) for various business purposes, including to improve and develop GTR’s products and services and for other development, diagnostic and corrective purposes, provided that the Usage Data cannot reasonably be used to identify Customer as its source and would not be defined as regulated personal data under any relevant data privacy law. Customer will obtain all permissions or approvals from each applicable user of the Services as may be necessary for Customer to provide such Customer Data to GTR in connection with the delivery of the Services, and to comply with all laws applicable to Customer’s performance under this Agreement. Customer represents, warrants and covenants to GTR that (a) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by GTR and used and disclosed in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or privacy rights of any third party or violate any applicable laws, including, but not limited to, any privacy laws applicable to such Customer Data.
8.THIRD PARTY SERVICES
8.1Access to Third Party Services. GTR may coordinate third party services in connection with the Services (such third party services, “Third Party Services”). GTR does not provide Third Party Services and the Third Party Services do not constitute Services. Third Party Services will be directly between Customer and the applicable provider of the Third Party Services, and such provider of Third Party Services may require that Customer execute a separate agreement to govern such Third Party Services. The use of Third Party Services may result in additional fees payable to third parties.
8.2Export. GTR may provide tools through the Services that enable Customer to export information, including Customer Data, to Third Party Services. By using one of these tools, Customer agrees that GTR may transfer that information to the applicable Third Party Service and/or Third Party Service provider.
8.3Disclaimer. The coordination of Third Party Services via the Hosted Services does not in any way imply, suggest, or constitute a recommendation by GTR of that Third Party Service, or any sponsorship or approval of GTR by such Third Party Service, or any affiliation between such Third Party Service and GTR. GTR assumes no responsibility or liability for Third Party Services, including such Third Party Services’ use of your exported information. Customer is solely responsible for any Third Party Services that Customer uses in connection with the Services.
9.1By GTR. GTR shall (i) defend, or at its option settle, any third-party claim alleging that Customer’s use of the Hosted Services as authorized in this Agreement infringes such third party’s copyrights or trade secrets (a “Claim”), and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by GTR; provided that Customer provides GTR (a) prompt written notice of, (b) sole control over the defense and settlement of, and (c) all information and assistance reasonably requested by GTR in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, GTR may, at its sole option and expense: (w) procure for Customer the right to continue to use the applicable Hosted Services; (x) modify the Hosted Services to make it non-infringing; (y) replace the affected aspect of the Hosted Services with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing, GTR will have no liability to Customer (1) for any claim arising out of or based upon modifications of the Hosted Services not performed by GTR; third-party software, products or services provided in connection with the Hosted Services but not developed by GTR; or use of the Hosted Services in combination with software, products or services not provided by GTR; to the extent that the Hosted Services would not be infringing but for such combination or modification; (2) for Customer’s failure to use the Hosted Services in accordance with this Agreement; (3) for any claims related to Customer Data; (4) any Services or deliverables related thereto that were designed or developed by or for Customer; or (5) a Services or deliverable’s compliance with specifications or requirements of Customer. THIS SECTION 9.1 STATES THE ENTIRE LIABILITY OF GTR, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY GTR, THE SERVICE OR OTHER GTR IP, OR ANY PART THEREOF.
9.2By Customer. Customer will defend, or at its option, settle any claim brought against GTR or its partners, affiliates, suppliers, representatives, directors, officers, employees, contractors, or agents arising out of or relating to: (i) Customer Data; (ii) any breach by Customer or any Authorized User of this Agreement; (iii) any dispute or issue relating to the Third Party Services, or (iv) Customer or any Authorized User’s violation of any applicable laws. Customer will pay all damages finally awarded against GTR (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. GTR agrees to provide Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. GTR may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to Customer.
10.ADDITIONAL DISCLAIMERS; LIMITATION OF LIABILITY
10.1Additional Disclaimers. THE SERVICES AND ALL MATERIAL AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. GTR HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, USE, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. GTR DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE SERVICES WILL BE COMPATIBLE WITH ANY THIRD PARTY TECHNOLOGY.
10.2Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT AND CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) TO THE OTHER PARTY FOR ALL CLAIMS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE ORDER(S) GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
11.1Changes; Updates. GTR may make changes or updates to the Services, including to reflect changes in technology, industry practices, and patterns of system use (“Changes”). Customer hereby authorizes GTR to implement such Changes, provided that such Changes do not have a material adverse effect on the functionality or performance of the applicable Services. GTR may provide new feature functionality, enhancements, and other changes, which are logical improvements to a Hosted Service and to which GTR makes generally available on a commercial basis, without charge, to any other client of the Hosted Services (“Updates”). Updates do not include any new software products that are then made generally available on a commercial basis as separate, price-listed options or additions to a Hosted Service nor do they include any professional services that may be required for implementation.
11.2Subcontracting. GTR may use subcontractors or otherwise delegate aspects of its performance under this Agreement, provided that GTR shall remain responsible hereunder for any such subcontractor’s performance. Such subcontracted services are not Third Party Services for the purpose of this Agreement.
11.3Publicity. GTR may use Customer’s name as a reference for marketing or promotional purposes on GTR’s website and in other communication with existing or potential GTR customers, subject to any written trademark policies Customer may provide GTR in writing, with reasonable advanced notice.
11.4Assignment. Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, except that GTR may assign this Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
11.5Compliance; Export Controls. Customer at all times shall comply with all applicable federal, state, local, and foreign laws and regulations. Without limiting the foregoing, Customer agrees to comply with all applicable export control laws and regulations.
11.6Force Majeure; Delays. Except for the obligation to pay money, 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 or dispute, governmental act or failure or degradation of the Internet.
11.7Governing Law. This Agreement shall be governed by and construed under the laws of the State of North Carolina 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. The parties will be subject to the exclusive jurisdiction of the state and federal courts located in Mecklenburg County, North Carolina, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.
11.8Miscellaneous. Each Order is hereby incorporated by reference into this Agreement. In the event of a conflict between the terms of this Agreement and an Order, the conflicting terms of the Order will prevail. This Agreement (together with any Exhibits and Orders hereto) constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter, whether oral or written, express or implied. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of GTR to object to such terms. Any ambiguity in this Agreement shall be interpreted without regard to which party drafted this Agreement or any part thereof. Except as set forth in this Agreement, 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 above, or to such other address as either party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, or 3 days after deposit in certified mail. The relationship between the parties shall be that of independent contractors. Waiver of any term of this Agreement 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 remainder of this Agreement will continue in full force and effect without said provision. Customer agrees that any violation or threatened violation of this Agreement would cause irreparable injury to GTR for which monetary damages would not be an inadequate remedy, entitling GTR to seek injunctive relief in addition to all legal remedies, without the posting of any bond (or any other security) or proof of actual damages.