This Master Service Agreement (this “MSA”) is made between Ocrolus Inc. (“Ocrolus”) and the party agreeing to this MSA (“Client,” each being a “Party”). Ocrolus provides tools for parsing, searching, analyzing, and summarizing data (the “Services”), reducing the need for manual review. Client is engaging Ocrolus to review documents (each a “Record” and collectively, “Records”) provided by its applicants and customers.
This MSA provides the framework for acquisition and use of the Services. The scope of Services for specific Records will be specified on a separate order form (the “Order Form,” and together with this MSA, this “Agreement”).
IF CLIENT REGISTERS FOR A FREE TRIAL OF THE SERVICES, THIS MSA WILL ALSO GOVERN THAT FREE TRIAL, UNLESS OTHERWISE PROVIDED HEREIN. BY ACCEPTING THIS MSA, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING THIS MSA OR AN ORDER FORM THAT REFERENCES THIS MSA, CLIENT AGREES TO THE TERMS OF THIS MSA.
This MSA is subject to revision. If Ocrolus makes any substantial changes, Ocrolus will notify Client in accordance with Section 7.6. Any changes to this MSA will be effective upon the earlier of thirty (30) calendar days following dispatch of an email notice to Client (if applicable) or Client’s next use of the Services. Changes are effective immediately to new users of the Services.
This Agreement was last updated on April 28, 2021. It is effective between Client and Ocrolus as of the earlier of: (a) the date Client accepts this Agreement or (b) the date Client first accesses or otherwise uses the Services.
SECTION 1. SERVICES
1.1 Order Forms, Services and Reports.
1.1.1 If the terms and conditions of this MSA and the Order Form conflict with each other, the Order Form will control.
1.1.2 Except as otherwise provided in the Order Form, the Parties expect the Services to include (a) Client correctly transferring Records to Ocrolus for review, (b) Ocrolus processing the Records, and (c) Ocrolus producing one or more agreed-upon reports (each, a “Report”).
1.2 Client Service. Ocrolus must provide customer service to Client from 9:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday, excluding U.S. federal holidays.
1.3 Access to Services and Restrictions.
1.3.1 Subject to the terms of this Agreement, Ocrolus grants Client a non-exclusive, worldwide, royalty-free (other than fees payable under this Agreement), non-transferable license to access and use the Services solely for Client’s own purposes.
1.3.2 Except as expressly authorized by this Agreement, Client agrees not to, and not to allow any end user under its employ to, (a) grant any third party not under the control of Client access to or permission to use the Services, (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive any trade secrets embodied in the Services, or (c) use the Services to violate any law.
1.3.3 If Client registers for a free trial of the Services, Ocrolus will make one or more Services available to Client on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Client registered to use the applicable Service(s), or (b) the start date of any purchased Service subscriptions ordered by Client for such Service(s). Additional trial terms and conditions may appear on the trial registration web page and are incorporated herein by reference.
1.4 Use of Records; Anonymized Information.
1.4.1 “Anonymized Information” means information based on or derived from Records or other materials provided by Client to Ocrolus that:
(a) combines information about multiple individuals; and
(b) does not specifically identify any individual; or
(c) has been transformed to the point where it cannot be used to identify any individual.
1.4.2 Client agrees that Ocrolus will own all rights, title, and interest, including intellectual property rights, in and to Anonymized Information based on or derived from its Records. Client also agrees that Ocrolus may continue to use that Anonymized Information indefinitely.
1.4.3 Client grants Ocrolus a limited, non-exclusive, royalty-free license to use all of the materials it has provided pursuant to this Agreement, which license will enable Ocrolus to discharge its obligations under this Agreement.
1.4.4 Client agrees to obtain all rights, permissions, and authorizations, if any, from third parties required to provide the Records to Ocrolus.
1.4.5 Ocrolus maintains the right to either return to Client or to delete, purge, or otherwise destroy, in its sole discretion, any Records provided by Client after the corresponding Report has been delivered to Client.
1.4.6 Notwithstanding the foregoing, Ocrolus may use Anonymized Information to monitor the effectiveness of its Services and for improvement and development of additional Services.
1.4.7 This Section 1.4 will survive this Agreement.
1.5 Ownership of Reports.
1.5.1 Ocrolus agrees that after Ocrolus provides a Report to Client, the Report will be owned only by Client, which may use it in any lawful way.
1.5.2 Client promises not to broker, sell, license, distribute, or re-distribute any Report to third parties without Ocrolus’ prior written consent. This paragraph 1.5.2 will survive this Agreement.
1.6 Fees; Billing.
1.6.1 For each type of Record processed, Client will prepay on the Service Start Date (as defined below) indicated in the Order Form an amount equal to the Committed Amount for the Term. The “Committed Amount” will equal the product of the number of Records the Client has agreed to have processed during the Term (the “Commit Volume”) and the “Commit Price” per Record.
1.6.2 Unless otherwise agreed in the applicable Order Form, Ocrolus will invoice Client upon signing of the Order Form for the cost of setting up the Client’s Services (the “Implementation Fee”) and any other initial fees. Such invoice shall be payable on or before the Service Start Date indicated in the Order Form.
1.6.3 Ocrolus will invoice Client on the first day of each Term for the Committed Amount for the Term Client agrees to pay the total amount due within the number of days stated in the Order Form after the date of the invoice (“net X” indicating the number of days after the invoice date payment is due). Commit Volume cannot be carried over from one Term to the next Term, and any Committed Amount for the Term will remain with Ocrolus.
1.6.4 Unless otherwise agreed in the applicable Order Form, Ocrolus will invoice Client monthly in arrears for any amounts due for volume over the Commit Volume at a separately negotiated rate (the “On-Demand Rate”) set forth in the Order Form. Client must pay the amount in the invoice within the number of days stated in the Order Form after the date of the invoice.
1.6.6 Notwithstanding the foregoing, if Client, acting in good faith, disputes the accuracy of all or part of an invoice, Client must notify Ocrolus within three (3) days of receipt of the invoice in question, including the specific item(s) in dispute and the reason for the dispute. Upon receipt of that notice by Ocrolus, Ocrolus and Client must work in a commercially reasonable and expedited manner to resolve it. Client will remain responsible for payment of any undisputed or resolved invoices in accordance with this section. Ocrolus reserves the right to charge Client for any unapproved or rejected documents; provided, however, that those fees will be included as a separate line item on the related invoice.
1.6.7 Suspension of Services. Ocrolus shall have the rig
ht to suspend any part of the Services if (a) Client fails to make a payment in full when due, (b) Ocrolus notifies Client, and (c) Client has failed to make that payment in full within ten (10) business days after receipt of such notice. If Client reasonably disputes in writing any amount due to Ocrolus, Ocrolus shall not suspend the Service until after the thirty-first day after it received that notice.
1.7 Service Level Agreement. Schedule I to this MSA provides the Service Level Agreement setting out adjustments to the cost of the Services at various levels.
SECTION 2 TERM AND TERMINATION
2.1 Unless otherwise specified in an Order Form, the initial term of this MSA and of any Agreement under this MSA (the “Initial Term”) will commence (the “Service Start Date”) on the date of this Agreement and end on the first anniversary of the Service Start Date.
2.2 This MSA and each Order Form will automatically renew for consecutive terms of one (1) year (each, a “Renewal Term”) unless either Party, at least forty-five (45) days prior to the expiration of the Term, provides written notice to the other Party of its intention not to renew, in which case this MSA or the applicable Order Form, as the case may be, will expire at the end of the Term; provided, however that the expiration of any individual Order Form will not terminate this MSA, and this MSA will not terminate until the final Order Form has been terminated. This Agreement refers to the Initial Term together with all Renewal Terms as the “Term.”
2.3 Upon termination of this Agreement, Ocrolus shall provide Client with all outstanding invoices and Reports within thirty (30) days after the date of effective notice of termination or non-renewal. Client must make a final payment to Ocrolus for all obligations owed by Client within thirty (30) days after the receipt of the final invoice.
SECTION 3 CONFIDENTIALITY
3.1 General Duty. Each Party (in such capacity, the “Recipient”) agrees to maintain the confidentiality of Confidential Information (as defined below) provided by or on behalf of the other Party (in such capacity, the “Disclosing Party”) under this Agreement. Recipient agrees to take all reasonable steps to prevent disclosure or dissemination of the Disclosing Party’s Confidential Information to any person or entity other than those directors, officers, employees, agents, and contractors of Recipient who have a need to know it in order to assist Recipient in performing its obligations or exercising its rights under this Agreement, and who have been made aware of and agreed to be bound by confidentiality obligations at least as restrictive as those contained in this Agreement. In addition, the Recipient must not use the Disclosing Party’s Confidential Information, or authorize others to use the Disclosing Party’s Confidential Information, for any purpose other than in connection with performing its obligations or exercising its rights under this Agreement. As used in this Agreement, “reasonable steps” means steps that a Party takes to protect its own similarly confidential or proprietary information, which steps must in no event be less than a reasonable standard of care.
3.2 Definition of Confidential Information. “Confidential Information” means the terms of this Agreement and any information in any form emanating, directly or indirectly, from Disclosing Party, concerning or relating to the Disclosing Party or the business operations of the Disclosing Party, including proprietary technology and/or business plans, in each case which has been imparted to the Recipient by the Disclosing Party. “Confidential Information” includes, without limitation, all Records, Reports, improvements, ideas, discoveries, inventions, prototypes, financial information, customer information, developments, methods, techniques, engineering, know-how, trade secrets, systems, documentation, drawings, renderings, sales and marketing plans, artwork, descriptions, component specifications, information of or relating to the project for which the Recipient has received that information, whether or not that project is susceptible to patent, copyright or any other form of protection and whether or not reduced to practice, and technical or research information and software, including that in the development stage whether developed or being developed by the the Disclosing Party or third parties at the request of the Disclosing Party. To the extent reasonable, all information disclosed by the Disclosing Party must be presumed to constitute Confidential Information and will be so regarded by the Recipient. “Confidential Information” does not include any information which (a) at the time of disclosure is known by the public or thereafter becomes public knowledge through no act or omission of or on behalf of the Recipient; (b) is disclosed to Recipient by third parties having a right to do so; (c) is known to the Recipient prior to disclosure; or (d) is developed independently by the Recipient. Confidential Information does not include Anonymized Information. To the extent either Party maintains control or possession over any Confidential Information of the other Party, the terms of this clause will continue in full force and effect for a period of three (3) years after the date of expiration or termination of this Agreement.
3.3 Nothing contained in this Agreement should be read (a) to imply that Ocrolus retains, or to cause Ocrolus to in fact retain, the other Party’s Confidential Information or to act in any data storage capacity for Client, or (b) limit either Party’s right to delete, destroy or otherwise purge any Confidential Information.
3.4 In the event that a Recipient is required by legal or governmental process to disclose Confidential Information, Recipient must promptly notify the Disclosing Party and reasonably cooperate (at that Disclosing Party’s sole expense) to protect the Confidential Information requested from disclosure. Recipient must report to Disclosing Party, by telephone and e-mail, any unauthorized use or disclosure of Disclosing Party’s Confidential Information promptly after Disclosing Party learns of such unauthorized use or disclosure.
3.5 Client agrees and acknowledges that Ocrolus may use Confidential Information including the Records or Reports for internal compliance and audit purposes to ensure performance and accuracy of Record review and may share the same with third parties engaged by Ocrolus for the purpose of conducting audits, accuracy reviews, or compliance reviews who are subject to obligations of confidentiality at least as restrictive as those contained in this Agreement. Ocrolus will be responsible for any breach of the obligations of this Section 3 (Confidentiality) by any of those third parties, or their affiliates or subsidiaries, unless that third party has an agreement directly with Client with respect to the subject matter of this Agreement. Ocrolus agrees to use industry standard methods to anonymize Confidential Information used pursuant to this sub-section.
3.6 Client acknowledges and agrees that employees of Ocrolus East Private Limited (“Ocrolus East”), Ocrolus’ wholly owned subsidiary located in India, verify sections of Records, some of which is Confidential Information, to the extent the Services require human review. Ocrolus acknowledges and agrees that it is responsible for and liable to Client for Ocrolus East’s compliance with the terms of this Agreement, including the acts and omissions of any Ocrolus East employee in violation of Ocrolus’ obligations under this Agreement. Ocrolus must ensure that prior to receiving Confidential Information, each Ocrolus East employee has agreed to safeguard Confidential Information in a manner substantially similar to Ocrolus’ obligations under this Agreement.
3.7 Client acknowledges and agrees that contractors drawn from the general population (“Individual Reviewers”) may review snippets or portions of information provided by Client that have been anonymized and de-identified, only when the Services require human verification. Ocrolus will be responsible for any breach of the obligations of this Section 3 (Confidentiality) by Individual Reviewers, each of whom must have agreed to safeguard the information in a manner substantially similar to Ocrolus’ obligations in this Agreement.
SECTION 4 INFORMATION SECURITY
4.1 Ocrolus must: (a) protect the security and integrity of all Records, Reports, and other Confidential Information that is collected, accessed, stored, or received by Ocrolus and (b) develop, implement, and maintain a written information security program with administrative, technical, and physical safeguards to protect the Records, Reports, and other Confidential Information against any unauthorized disclosure or use and any anticipated or reasonably foreseeable threats or hazards to the security or integrity of the Records, Reports, and other Confidential Information.
4.2 Ocrolus’ information security program must comply with all applicable federal and state laws as well as industry best practices, including as it relates to firewalls, patching, and encryption of confidential data at rest and in transit. Neither Party must not knowingly include in the Records, Reports, and other Confidential Information any personally identifiable information of any resident of the European Union (“EU Resident”) nor email or collect any information from any EU Resident without: (a) obtaining the prior written consent of the other Party; and (b) ensuring that Party’s compliance with the requirements of all applicable laws, including the European Union General Data Protection Regulation (the “GDPR”). In addition, Client must not provide Records from any country other than those listed on Schedule 2, as it may be updated from time to time on Ocrolus’ web site.
4.3 Ocrolus agrees to develop, implement and maintain adequate policies supporting Ocrolus’ information security program designed to reasonably protect, in accordance with industry standards, all Records, Reports, and other Confidential Information to which it has access, against security breaches as defined in this Agreement.
4.4 Ocrolus agrees to (a) update and keep its security program current in light of changes in relevant technology; and (b) authorize only its employees and contractors who are necessary for and directly involved in the performance of its obligations under this Agreement to have access to the Records, Reports, and other Confidential Information (whether physically or through computer system access) and solely on a “need-to-know” basis.
4.5 If at any time Ocrolus discovers or otherwise becomes aware of: (a) any unauthorized access to Records, Reports, or other Confidential Information, or (b) any unauthorized intrusion or penetration involving systems or facilities under the control of Ocrolus resulting in unauthorized disclosure of Records, Reports, or other Confidential Information (each of (a) and (b), a “Security Breach”), Ocrolus must: (i) notify Client in writing of that Security Breach as soon as commercially possible, but no later than within forty-eight (48) hours of when the Security Breach was confirmed, and furnish Client with the full details of that Security Breach; and (ii) cooperate with Client in any effort, action, or proceeding to protect the Records, Reports, and other Confidential Information and to mitigate and/or remediate the impact of the Security Breach, as Client reasonably deems necessary or as required by applicable law, including breach notification laws.
4.6 In the event of any Security Breach, Ocrolus must cooperate with Client and provide information that is reasonably requested in writing by Client with respect to the actions taken in response to that Security Breach and Ocrolus’ compliance with the obligations set forth in this Section 4.
SECTION 5 INDEMNIFICATION AND LIABILITY
5.1 Client agrees to defend, indemnify, and hold harmless Ocrolus, its parents and affiliates, from and against all liabilities, claims, damages, and expenses (including reasonable attorney’s fees and costs) arising from or otherwise related to (a) Client’s use of the Services, (b) any gross negligence or willful misconduct by Client in performance of this Agreement, (c) Client’s breach or alleged breach of this Agreement, or (d) any claim that the Records or Client’s Confidential Information infringe the intellectual property rights of any third party.
5.2 Ocrolus agrees to defend, indemnify, and hold harmless Client, its parents and affiliates (collectively the “Client Indemnified Parties”) against any third-party liabilities, claims, demands or suits that arise from:
(a) The breach or alleged breach of this Agreement by Ocrolus, including any Security Breach or unauthorized disclosure of Client’s Confidential Information;
(b) Any gross negligence or willful misconduct by Ocrolus in performance of the Services under this Agreement; or
(c) Any claim that the use of the Services as authorized in this Agreement infringes the intellectual property rights of any third party.
5.3 In the case of any claim by Client for indemnification under sub-clause 5.2(c), Client agrees to provide Ocrolus with timely written notice of that claim, that Ocrolus will have sole control over the defense of such claim, and that Client will provide or procure reasonable cooperation from Client Indemnified Parties upon Ocrolus’ request for any such assistance.
5.4 Should any Services become, or in Ocrolus’ opinion be likely to become, the subject of a claim by Client for indemnification under clause 5.2(c), Ocrolus agrees to, at its option:
(a) Procure for the Client Indemnified Parties the right to make continued use of the Services in accordance with this Agreement;
(b) Replace or modify the affected Services so that they become non-infringing but with substantially equivalent functionality and performance; or
(c) If neither (a) nor (b) is reasonably available, terminate this Agreement.
5.5 Ocrolus will have no liability or indemnification obligations under this Agreement based on (a) use for a purpose or in a manner for which the Services were not designed; (b) use of any older version of Services software when use of a newer revision was made available by Ocrolus to Client; or (c) any use of the Services in breach of this Agreement.
5.6 Neither Party will be liable to the other for consequential, incidental, indirect, punitive, or special damages (including loss of profits, data, business, or goodwill), from any cause of action of any kind, including any action sounding in contract, tort, breach of warranty, or otherwise.
5.7 It is further agreed that each Party’s aggregate liability for direct damages in connection with a claim under this Agreement will not exceed the total amount paid or received by the respective Party in the twelve (12) months preceding the date upon which that claim first accrued.
SECTION 6 REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Client Representations, Warranties and Covenants.
6.1.1 Client represents and warrants that it has full power, capacity, and authority to enter into this Agreement.
6.1.2 Client represents, warrants, and agrees that no person’s privacy rights are being or will be infringed, and no applicable foreign, federal, state, or local law, rule or regulation (collectively, “Applicable Law”) is being violated by providing Ocrolus with any of the information used for the Services.
6.1.3 Client agrees that it will comply in all material respects with Applicable Law in its use of the Services under this Agreement.
6.2 Ocrolus Representations, Warranties and Covenants.
6.2.1 Ocrolus represents and warrants that it has full power, capacity, and authority to enter into this Agreement.
6.2.2 Ocrolus agrees that during the Term it will (a) provide the Services in a professional and workmanlike manner, (b) update and enhance the Services in the regular course of its business, and (c) comply in all material respects with Applicable Law in performing this Agreement.
In the event of a breach of this Section 6.2, Ocrolus’ initial and primary means to remedy that breach will be to re-perform any defective Service again before any further action may be taken under this Agreement.
6.3 Disclaimer of Warranties. Except as expressly provided in this Agreement, Ocrolus disclaims all warranties, express and implied, including the implied warranties of merchantability and fitness for a particular purpose. No oral or written information or advice given by Ocrolus or its authorized representatives will create a warranty of any kind or in any way increase the scope of Ocrolus’ obligations in this Agreement. The Services may be used to access and transfer information over the internet. Client acknowledges and agrees that Ocrolus does not operate or control the internet and that unauthorized users may attempt to obtain access to and damage Client’s data, web sites, computers, or networks. Except with respect to breaches of this Agreement, Ocrolus will not be responsible for those activities. Client is responsible for preserving and making adequate backups of its data and any Records.
SECTION 7 GENERAL PROVISIONS
7.1 Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, representations, arrangements or understandings, whether written or oral, with respect to that subject matter.
7.2 Binding Effect and Assignment. Except as otherwise expressly provided in this Agreement, this Agreement will be binding on, and will inure to the benefit of, the successors and permitted assigns of the Parties. The Parties may assign this Agreement to a successor entity in the event of a merger, acquisition, or sale of all or substantially all of its assets. Nothing in this Agreement is intended to confer upon any Party, or their respective successors and assigns, any rights or obligations under or by reason of this Agreement, except as expressly provided herein.
7.3 Amendment; Waiver.
7.3.1 This Agreement may be amended only by a written agreement expressly referring to this Agreement and executed by the Parties.
7.3.2 No provision of this Agreement may be waived except by a written document executed by the Party entitled to the benefits of the provision.
7.3.3 No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement.
7.3.4 A waiver will be effective only in the specific instance and for the purpose for which it was given and will not constitute a continuing waiver.
7.3.5 No delay or omission by either Party in exercising any right, power, or privilege under this Agreement will impair that right, power, or privilege, nor will any single or partial exercise of any right, power, or privilege preclude any further exercise of that right or the exercise of any other right, power, or privilege.
7.4 Independent Contractor Status.
7.4.1 Ocrolus will act as an independent contractor of Client.
7.4.2 Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
7.4.3 Ocrolus has no authority to act as agent for, or on behalf of, Client, or to represent or bind Client in any manner.
7.4.4 Ocrolus will not be entitled to worker’s compensation, retirement, insurance, or other benefits afforded to employees of Client.
7.4.5 Client agrees to pay all sales tax on Services, and Ocrolus agrees to pay all tax associated with furnishing the Services, including taxes on income, receipts, and payroll and arising from Ocrolus doing business in any particular jurisdiction.
7.5 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise:
7.5.1 References to the plural include the singular, the singular the plural, and the part the whole;
7.5.2 The word “or” has the inclusive meaning frequently identified with the phrase “and/or”;
7.5.3 The word “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation”; and
7.5.4 Any reference in this Agreement to any statute, rule, regulation, or agreement (including this Agreement), include its form after having been amended, restated, revised, modified, supplemented, reenacted, or succeeded.
7.6.1 The Parties agree that notices under this Agreement will be effective if and only if in writing addressed to the recipient Party at its provided address (or any other address it later provides in writing), via email (provided email shall not be sufficient for notice of an indemnifiable claim), or via overnight courier service or postal mail requiring the recipient’s or its agent’s signature.
7.6.2 Notices to Ocrolus shall be addressed to Ocrolus Inc., Attn: Legal Department; 101 Greenwich Street, Fl. 23, New York, NY 10006; firstname.lastname@example.org. Client is responsible for providing Ocrolus with Client’s most current mailing address and email address. Billing-related notices to Client shall be addressed to the relevant billing contact designated by Client. All other notices to Client shall be addressed to the relevant Services system administrator designated by Client.
7.6.3 Email notices will be deemed received upon the sender’s receipt of a delivery or read receipt, or, in the absence of a notice to the contrary, after one day.
7.6.4 Physical mail will be deemed received at the time it is signed for at the destination.
7.7 No Responsibility for Force Majeure Loss. Each Party agrees that the other Party will not be responsible for any damage resulting from force majeure events beyond the control of such other Party or its employees or agents, including the advent or escalation of wars, riots, pandemics, and natural disasters.
7.8 Choice of Law and Venue.
7.8.1 The Parties expressly agree that all the terms and provisions of this Agreement are governed by the laws of the State of New York without regard to its conflict of laws or choice of law rules and principles.
7.8.2 The Parties hereby irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts of New York and agree that that any action or proceeding relating to this Agreement must be brought exclusively in any state court of general jurisdiction in the City and State of New York.
7.8.3 The Parties waive any objection that either may have to the conduct of any action or proceeding in such a court based on improper venue or inconvenient forum, waive personal service of any and all process upon it, and consent that all service of process may be made by certified mail or nationally recognized courier service directed to it at the address set forth in this Agreement and that service made will be deemed to have been posted.
7.8.4 Client consents to the personal and subject matter jurisdiction of the aforementioned courts for the purpose of adjudicating any claims subject to this forum selection provision.
7.8.5 Nothing contained in this Section 7.8 affects the right of any Party to serve legal process in any other manner permitted by law.
7.9 Jury Trial Waiver. In any action or proceeding commenced in connection with this Agreement, the Parties expressly and IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY.
7.10 Costs of Enforcement; Attorney’s Fees. In the event of any litigation, arbitration, or other dispute arising as a result of, in connection with, or by reason of this Agreement, the substantially prevailing Party in that dispute will be entitled to receive reimbursement and payment of all costs and expenses incurred in connection with settling or resolving that dispute, including reasonable attorneys’ fees.
7.11.1 Whenever possible, each provision of this Agreement must be interpreted in a manner that makes it effective and valid under applicable law.
7.11.2 If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue in full force and effect without that provision, and this Agreement will be construed to the fullest extent possible as to give effect to the intentions of the provisions found to be unenforceable or invalid.
7.11.3 The Parties agree that a court may reform that provision so that it is reasonable under the circumstances and that that provision, as reformed, will be enforceable, except that the material intent of the Parties in entering into this Agreement must not be defeated or rendered impossible by the removal of that provision from this Agreement.
7.12 Use of Name and Logo.
7.12.1 Neither Party will use the other Party’s names, marks, or logos without the prior written permission of the other Party.
7.13 Surviving Provisions. Any of the provisions in this Agreement which expressly or impliedly by their nature should survive this Agreement will survive.
7.13.1 Further Actions; Recordation. Each Party, and its permitted assigns and transferees, agrees to execute, acknowledge, and deliver additional documents, and take further actions as may be required, from time to time, to carry out each of the provisions and the intent of this Agreement and every agreement or document relating to or entered into connection with this Agreement.
7.14 Authority. The individuals executing this Agreement on behalf of Client and Ocrolus, respectively, represent that they are duly authorized to execute this Agreement and bind their respective organizations to it.
7.15 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will constitute one and the same document.
7.16 Electronic Signature. Each Party agrees that this MSA and any other documents to be delivered in connection with it may be electronically signed, and that any electronic signatures appearing on this MSA or other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
SERVICE LEVEL AGREEMENT
This Schedule 1 is the Service Level Agreement (“SLA”) between Ocrolus and Client.
1. Definitions. The following capitalized terms have the meaning set forth below:
a. “Downtime” means more than a five (5) percent Error Rate, or complete lack of external connectivity to the service. Downtime is measured based on server-side Error Rate.
b. “Error Rate” means the number of Valid Requests that result in a response with HTTP Status 500 and Code “Internal Error,” divided by the total number of Valid Requests during that period.
c. “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of continuous 5-minute periods of Downtime during the month.
d. “Service Credits” means the corresponding amounts that may be due from Ocrolus to Client if the Service Levels are not achieved in a given month.
e. “Service Deficiency” means an instance in which Ocrolus fails to meet one or more Service Levels.
f. “Turnaround Time” for a Service means the time elapsed between (i) Ocrolus’ receipt of the relevant Records, properly submitted between the hours of 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday (excluding U.S. federal holidays) and (ii) delivery of the Services.
g. “Valid Request” means a request that conforms to the protocol for use of the Services set out at https://docs.ocrolus.com/, and that would normally result in a non-error response.
2. Service Level.
a. Uptime and Turnaround Time. Ocrolus agrees that during the Term of this Agreement, Ocrolus will use commercially reasonable efforts to (i) make the Services available with a Monthly Uptime Percentage of at least 99%, in each case during any monthly billing cycle, and (ii) deliver at least 90% of Reports to Client within the Turnaround Time agreed to in the Order Form for the corresponding type of Record (the “Service Levels”). For the avoidance of doubt, any bespoke Services, analytics or reporting not documented in an Order Form but provided by Ocrolus for Client will not be included in the Service Levels.
b. Scheduled Maintenance. Ocrolus may schedule periods when the Services or its software will be unavailable, in order to improve, repair or otherwise maintain the Services (“Scheduled Maintenance”). Ocrolus will use commercially reasonable efforts to notify Client’s designated point of contact by phone or email at least one (1) week in advance of upgrades, maintenance and other planned activities that may result in a material interruption in Service. Ocrolus will perform its Scheduled Maintenance only on Saturday and Sunday before 7:00 a.m. and after 7:00 p.m. Eastern Time.
c. Emergency Maintenance. On occasion, emergency maintenance may be required to address material security-related issues or technical problems that would impact the availability of the Services, resolution of which cannot wait until or be remedied during Scheduled Maintenance (“Emergency Maintenance”). Ocrolus will use commercially reasonable efforts to notify Client’s designated point of contact by phone or email at least two (2) hours in advance of any Emergency Maintenance. Ocrolus will also promptly notify Client of the Emergency Maintenance and actions being taken in the course of that Emergency Maintenance once Ocrolus becomes aware of an occasion requiring Emergency Maintenance.
3. Service Credits.
a. Service Credit Amount. In the event that Service in any given month falls below the Service Levels, then within 30 days after the end of the applicable month, Client may request the corresponding Service Credit.
b. Claims for Service Credit. Client must make claims for a Service Credit to Ocrolus’ customer support organization in writing. Ocrolus must investigate the claim and must respond back to Client within fourteen (14) days after receipt of the claim. Ocrolus’ response must either (i) accept the validity of the claim, or (ii) dispute the claim, including supporting details and documentation. In case of a dispute, the Parties will seek to resolve it promptly in good faith.
c. Use of Service Credits. Service Credits lack cash value, but Ocrolus will apply each Service Credit to one or more future invoices for the same Service. Service Credits cannot be applied to amounts due for other Services. Client’s sole and exclusive remedy, and Ocrolus’ sole and exclusive liability, in the event of a Service Deficiency will be application of the Service Credits in accordance with the terms of this SLA.
d. Any Service Credits will be calculated as a percentage of the monthly pro rata share of the Committed Price (as set out in the Order Form) as follows:
|Monthly Uptime Percentage||Service Credit|
|99.00% or higher||None|
|Monthly Percentage of ReportsDelivered Within Turnaround Time||Service Credit|
|90.00% or higher||None|
4. Service Level Agreement Exclusions. Client agrees that Ocrolus will not be deemed to have failed to meet a Service Level because of a Service’s unavailability, suspension, or termination caused by events beyond the reasonable control of Ocrolus. These include, without limitation:
a. Natural disasters, acts of terrorism, riots, insurrections, epidemics, pandemics, wars, extraordinary governmental actions, ISP provider failures or delays, and any other event reasonably considered to be an event of force majeure;
b. Actions or inactions of Client or any third party not controlled by Ocrolus;
c. Failures that result from Client’s equipment, software or other technology and/or third-party equipment, software or other technology;
d. Those that result from an extraordinary submission of Records on a daily basis beyond 120% of average daily Client volume, as determined on a rolling average of the 12 weeks ending before; or
e. Arising from any suspension or termination of Client’s right to use the Services because of its breach of this Agreement.