MASTER SERVICE AGREEMENT
This MASTER LICENSE AND SERVICES AGREEMENT (the “Agreement”) is made and entered into this Month day, year (the “Effective Date”) by and between Tartan, Inc. and Customer Name (“Licensee”). Tartan and Licensee are collectively referred to herein as the “Parties” and individually as a “Party”.
WHEREAS, Licensee desires to license certain Tartan data, and/or software (collectively, the “Tartan Data”) and/or to engage Tartan to provide certain enumerated services (the “Tartan Services”), as set forth in more detail on the attached Schedule or Schedules (collectively, the “Schedule”) and Tartan is willing to license and provide such Tartan Data and/or Tartan Services to Licensee on the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration for the mutual covenants herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Master License & Services Agreement
Tartan Data License. Subject to all of the terms and conditions of this Agreement, Tartan grants, assigns and conveys to Licensee a non-exclusive, revocable, limited, personal, non-transferable, license to access and use the Tartan Data and to use any deliverables included in the Tartan Services (subject to the limitations set forth in Section 2.2) for the Term (as defined herein) and solely for the purposes set forth herein- provided however, if the Tartan Data License or Tartan Services are revoked, or the Licensee’s usage rights are reduced or altered, except as a result of Tartan’s termination of this Agreement pursuant to Section 6.2, below, there shall be a corresponding reduction in fees payable by Licensee to Tartan, to include pro-rated fees to match the time period in which Licensee had full use of the Tartan Services, to be negotiated by Licensee and Tartan. Licensee hereby acknowledges that (i) Tartan is the sole and exclusive owner of the Tartan Data and or Tartan Services, and (ii) the foregoing license does not confer on Licensee any right, title or interest in any of Tartan’s intellectual property, whether patents, trade secrets, trademarks, copyrighted material, or otherwise. All rights not specifically granted hereunder are reserved and retained by Tartan. Licensee may not use or disclose (in writing, orally, electronically or otherwise) the Tartan Data or Tartan Services for any purpose except as expressly provided in this Agreement. Licensee may not disclose the Tartan Data or Tartan Services to its Affiliates without the express written approval of Tartan and provided that any Affiliate to which any Tartan Data or Tartan Services is permissibly disclosed shall be obligated under the same terms and conditions set forth herein, including but not limited to those terms set forth in Article 5, “Nondisclosure of Confidential Information”. Tartan reserves the right to restrict any disclosures of Tartan Data or Tartan Services should it be reasonably deemed by Tartan that such disclosure(s) is/are affecting Tartan’s commercial capabilities. Licensee may use the Tartan Data and/or Tartan Services only for use cases covered in these terms and conditions, or otherwise specified within the “schedule.” Tartan may, upon written notice to Licensee, restrict use of the Tartan Data and/or Tartan Services, or any derivation thereof, in any third party application or software suites. For the purposes of this Agreement, “Affiliate” means, with respect to any entity, any other entity controlling, controlled by, or under common control with, such entity. Licensee shall not (i) reproduce, rebroadcast or disseminate the Tartan Data or Tartan Services, including without limitation by use of any type of electronic mail communication, including email and instant messenger services, to any third party in any form without the express written prior consent of Tartan, or except as expressly permitted herein, or (ii) sell, transfer, sublicense, share, publish, redistribute or copy in any way, the Tartan Data or Tartan Services and any information which is derived, calculated or otherwise ascertained from the Tartan Services. In the event that access to the Tartan Services is made available to Licensee through the internet, Tartan will supply Licensee with unique user identification code(s) and password(s) (collectively the “User I.D.”) to access the licensed Tartan Data and/or Tartan Services via the internet and/or Tartan servers. The User I.D. shall only be available to specified active employees of the Licensee (collectively, “Authorized Users”). The User I.D. shall be considered and treated as Confidential Information (as defined herein) belonging to Tartan. Licensee acknowledges and agrees that it is and shall remain solely responsible for all use and disclosure of its User I.D. In no event shall Licensee disclose, transfer or allow any third party to use, copy, or otherwise access the User I.D. Licensee shall notify Tartan immediately in the event that the User I.D. is or is believed to be lost, stolen, or in the possession of any third party, or that the User I.D. does not operate properly, so that Tartan may re-issue a new User I.D. to Licensee and take whatever actions it deems necessary to protect the confidential nature of the User I.D., Licensee shall fully cooperate with Tartan in any such action.
Engagement. During the Term of this Agreement, Licensee hereby engages Tartan and Tartan accepts such engagement to provide access to Tartan data and to perform the Tartan Services set out on the Schedule. The Tartan Services may include but are not limited to data, analysis, charts, reports produced and/or compiled by Tartan, the use of which by Licensee is regulated by this Agreement.
Use ad Ownership of Tartan Services. Licensee acknowledges and agrees that neither provision of the Tartan Services by Tartan nor use there of (including use of any deliverables included therein) confers on Licensee any right, title or interest in any of Tartan’s licensed material or in any of Tartan’s intellectual property, whether patents, trade secrets, trademarks, copyrighted material, or otherwise. All rights not specifically granted hereunder are reserved and retained by Tartan. Licensee may use the Tartan Services and any deliverables included in the Tartan Services only for internal business purposes and may not copy, distribute or grant access to any of the Tartan Services or any deliverables included in the Tartan Services to any third party unless specifically approved and listed in the “schedule.” Licensee shall not remove or obscure any copyright notice included on any of the deliverables included in the Tartan Services. Furthermore, Licensee acknowledges and agrees that any documentation, materials, work product, deliverables, or other proceeds of the Tartan Services, and any information contained therein, are proprietary to Tartan and Licensee is prohibited from selling, transferring, licensing, sharing, publishing, or copying any information which is derived, calculated or otherwise ascertained from such deliverables - subject to the permitted uses set out in the Tartan Service Schedule hereof. Licensee shall not, nor shall they cause any third party to, reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Tartan Services, in whole or in part; or access or use the Tartan Services for purposes of competitive analysis of the Tartan Services, the development, provision or use of a competing software service or product or any other purpose that is to Tartan’s detriment or commercial disadvantage; nor shall Licensee repurpose, sell, transfer, publish, disclose, display or otherwise make available the Tartan Services or any components thereof in any form whatsoever, including flow charts, logic diagrams, object code, source code and technical documentation, to any third party without the prior written approval of Tartan. Licensee shall secure and protect the Tartan Services and all components thereof in a manner consistent with the maintenance of Tartan’s rights therein and take appropriate action by instruction or agreement with Licensee’s employees and agents who are permitted access to the Tartan Services to satisfy Licensee’s obligations under this Agreement.
- CARRIER CONNECTIONS APPROVAL
Carrier Connections. Licensee shall provide Tartan, Inc with written approval to connect directly with carriers on their behalf to obtain real time updates on shipments. This approval is indicated by the selection of the box labeled “Carrier Connection Approval” on the order form. Tartan, Inc will not disclose information on shipments to any party other than the authorized parties indicated on the order form by the licensee.
Upon Termination of the agreement, Tartan, Inc. will terminate the carrier connection agreement and no longer have direct access on licensee’s behalf.
License Fee, Services Fee. Licensee shall pay to Tartan, in U.S. dollars, the fees set forth in the Schedule with respect to the license(s) of the Tartan Data and/or Tartan Services (as applicable, the “License Fee, and/or the “Services Fee”). Tartan shall inform Licensee in writing of any increase in the License Fee and/or Services Fee at least 30 days prior to the expiration of the then-current Term. Such notice shall serve as acceptance by Licensee of such License Fee and/ or Services Fee increase, unless Licensee delivers written notice to Tartan of termination of this Agreement pursuant to the Schedule. In the event that Licensee desires to change the number of Authorized Users, licensed Tartan Data and/or Tartan Services set out on the Schedule, the Parties shall discuss and agree upon an adjustment to the License Fee and/or Services Fee. Unless such an adjustment to the License Fee and/ or Services Fee, licensed Tartan Data, and/or Tartan Services is agreed in writing by way of a revised Schedule, a new Schedule and/or a mutually binding written agreement between the Parties, no change to the Schedule shall be deemed to be made.
Payments. The License Fee and/or Services Fee shall be payable on the 5th business day following receipt of Tartan’s invoice for payment. In addition to all other remedies available to Tartan, in the case that any License Fee and/or Services Fee payable hereunder has not been paid fourteen (14) business days following receipt of Tartan’s invoice, Tartan shall have the right to suspend provision of the Tartan Data and/or Tartan Services until (i) the License Fee and/or Services Fee has been paid, or (ii) Tartan terminates this Agreement pursuant to Section 6.2, below. Late payments shall be subject to an interest charge equal to the lesser of (a) one and one half percent (1½%) per month, or (b) an amount equal to the statutory limit, whichever is lesser. Tartan may tender invoices to Licensee via email, and each invoice will be considered received by Licensee when sent by Tartan via email. All payments due shall be made without deduction for taxes, assessments, or other charges of any kind which may be imposed on Licensee, with respect to any amounts payable to Tartan, and such taxes, assessments, or other charges shall be the sole responsibility of Licensee.
Tartan accepts no liability arising from any error or omission in the Tartan Data or Tartan Services or in connection with the provision or performance of the Tartan Data and/or Tartan Services and shall have no liability to Licensee as a result thereof, except in the case of damages resulting from Tartan’s gross negligence or its willful misconduct. Licensee hereby understands and acknowledges that the Tartan Data and Tartan Services are in part based on data provided by third parties. Therefore, Tartan cannot and does not warrant or assume responsibility for the accuracy of the Tartan Data and/or Tartan Services, and the Tartan Data and Tartan Services may be updated or modified at any time, at Tartan’s sole discretion. Tartan data and services (and access thereto) are provided without any representation, warranty, or guarantee, either express or implied, as to non-infringement of any intellectual property rights, accuracy, timeliness, merchantability, consequences of use, fitness for any particular purpose, or compliance with any applicable codes, laws, regulations, or policies, and except as expressly provided herein, Tartan assumes no responsibility for liability for any loss or damages whether direct, indirect, consequential, or incidental which might arise out of the use of the Tartan Data or Services. Notwithstanding any other provision of this Agreement to the contrary, Tartan’s total aggregate liability under this Agreement, whether under contract law, tort law, equity, warranty or otherwise (i) shall be limited to direct damages, and Tartan will not be liable to Licensee for any special, indirect or consequential losses or damages, even if Tartan has knowledge of the possibility of such loss or damage, and (ii) shall not exceed the sum of the License Fee and/or Services Fee actually received by Tartan under this Agreement in the 12 months prior to the date of the action giving rise to the claim. For purposes of clarification, it is understood that no Affiliate of Tartan shall have any liability for any claims made by Licensee in connection with this Agreement. Licensee’s sole recourse with respect to any claims arising out of the Tartan Data and/or Tartan Services shall be against Tartan (in accordance with, and subject to, the terms and limitations set forth in this Agreement).
- NONDISCLOSURE OF CONFIDENTIAL INFORMATION
Each Party shall keep confidential the other Party’s Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean all information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement and shall specifically include the Tartan Data and Tartan Services. The Receiving Party shall use the Disclosing Party’s Confidential Information solely to perform its obligations pursuant to this Agreement, and shall take all reasonable precautions necessary to safeguard the confidentiality of the Disclosing Party’s Confidential Information. Confidential Information shall not include information that (i) was in the public domain prior to the Effective Date or is published or otherwise becomes a part of the public domain after the Effective Data, other than as a result of disclosure by the Receiving Party in breach of this Agreement, (ii) the Receiving Party can demonstrate was in the Receiving Party’s possession at the time of disclosure by the Disclosing Party and was not acquired, directly or indirectly, from the Disclosing Party, or from any third party owing a duty of Confidentiality to the Disclosing Party with respect thereto, (iii) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or (iv) Disclosing Party is required to disclose by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process, provided that, prior to such disclosure (and to the extent permitted by applicable law), the Receiving Party shall notify the Disclosing Party of the existence, terms and circumstances surrounding such request, consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request, and reasonably assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy. Except as otherwise expressly permitted in this Article 5, Confidential Information shall not be copied, sold, traded, shared, published or reproduced without the prior, express written permission of the Disclosing Party. The Parties agree that money damages may not be a sufficient remedy for any breach of this Article and that the Disclosing Party shall be entitled to seek injunctive relief, specific performance or any other available equitable remedy for such breach, which shall not be deemed exclusive and shall be in addition to all other legal remedies available at law, in equity, or by statute. If the Disclosing Party prevails in any action for breach of terms of this Article 5, the Receiving Party shall be liable for all costs and expenses (including reasonable attorneys’ fees) related to enforcing, defending or otherwise protecting the Disclosing Party’s interests hereunder. Upon the termination of this Agreement, either party shall, upon the other’s request and to the extent possible, destroy all Confidential Information of the other party in its possession or control and provide the other party written notice of such destruction.
- TERM & TERMINATION
Term. This Agreement shall commence on the Effective Date and continue as a month to month agreement. Each month will continue as auto-renewed unless written notice is provided by either party 30 days in advance.
Termination. Tartan may immediately terminate this Agreement and/or the Schedule by giving written notice to Licensee, if Licensee (a) fails to pay the License Fee or Services Fee in accordance with the terms of this Agreement and/or the Schedule, (b) breaches any of the terms of this Agreement, and such breach is not cured within 10 days after Tartan’s notice of such breach to Licensee, (c) files a bankruptcy petition, is adjudicated bankrupt or insolvent, assigns for the benefit of creditors or any arrangement pursuant to bankruptcy law, discontinues or dissolves its business, has a receiver appointed for Licensee’s business or admits insolvency, or (d) becomes unable to pay its obligations in the ordinary course. Tartan’s right to terminate this Agreement pursuant to this Section 6.2 is not exclusive of any other remedies Tartan may have in this Agreement at law or in equity with respect to any default by Licensee.
Indemnification by Licensee. Licensee and/or its Affiliates shall defend, indemnify and hold Tartan and its Affiliates and their respective directors, officers, employees, agents, contractors and representatives, harmless from and against any and all claims, assessments, damages, losses, or other liabilities of any kind, including without limitation Tartan's reasonable attorneys' fees in the defense thereof, arising out of a material breach of any representation, warranty, covenant, or terms of this Agreement by Licensee, its Affiliates, their employees, or other third parties.
Indemnification by Tartan. Tartan shall indemnify and hold Licensee, its directors, officers, employees, agents, contractors and representatives, harmless from and against any and all claims, assessments, damages, losses, or other liabilities of any kind, including without limitation, Licensee’s reasonable attorneys; fees in the defense thereof arising out of a material breach of the terms of this Agreement and/or a claim that the Tartan Data or Tartan Services infringe or violate any third party’s copyright, patent, trade secret, trademark, other intellectual property or other proprietary rights, provided the Tartan Data or Tartan Services that are the subject of the claim (i) were not modified from their original state, (ii) embody the most current version provided to Licensee, and (iii) have not been used by Licensee’s in breach of his Agreement. Should the Tartan Data or Tartan Services or any part thereof become, or in Tartan’s opinion be likely to become, the subject of a claim for infringement or the like, Tartan may, in its sole discretion procure for Licensee the right to continue using the Tartan Data or Tartan Services, or replace or modify the Tartan Data or Tartan Services without materially changing their functional capabilities, so that the Tartan Data or Tartan Services become non-infringing.
Notices. Unless otherwise expressly set forth herein, any communication, notice or demand of any kind whatsoever that either Party may be required or may desire to give or serve upon the other shall be in writing, addressed to the other Party at the address below and delivered by personal service, Federal Express or other reputable overnight delivery service, by email or facsimile transmission, or by registered or certified mail, postage prepaid, return receipt requested:
3600 NE 42nd St.
Seattle, WA 98105
Attention: General Counsel
Customer Street Address
Customer City, State, Zip Code
Customer Contact Email
Customer Contact Phone
Customer Billing Address/Contact (if different)
Any such noticed shall be deemed delivered if:
(a) personally delivered on the date delivered to the address of the Party to whom such notice is addressed; (b) sent by Federal Express or other reputable overnight courier service, on the date of delivery to the address of the Party to whom such notice is addressed; (c) sent by confirmed email or facsimile transmission on the business day on which the notice is transmitted to the Party to whom such notice is addressed if sent by 5:00 p.m., Eastern time, on such business day and on the next business day if sent after 5:00 p.m., Eastern time, or on a day other than a business day, provided that the party making such transmission shall concurrently deposit the original in the United States mail for delivery to the Party to whom such notice is addressed; or (d) mailed, three (3) calendar days after depositing the notice in the mail. Any Party may change the address to which notice is to be sent by giving notice to the other Party at least five (5) calendar days before the effective date of such change.
Force Majeure. Notwithstanding anything contained herein to the contrary, neither Party shall be liable to the other for loss, injury, delay, damage or other casualty suffered by such other Party due to any inability to perform any obligation hereunder (other than monetary obligations) caused by strikes, riots, storms, fires, acts of government (including legislative, administrative, judicial, police or any other official government acts by a governmental or a quasi-governmental body or by a public corporation), acts of God (including weather) or any other cause beyond the reasonable control of such Party.
Governing Law, Consent to Jurisdiction. The validity, construction and performance of this Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of Washington, excluding its conflict of laws principles. The Parties hereto, their successors and permitted assigns, consent to the exclusive jurisdiction of the federal and state courts of the State of Washington with respect to any legal proceedings that may result from a dispute as to the interpretation or breach of any of the terms and conditions of this Agreement. The Parties hereto consent to any form of service of process (including fax or email).
Assignment. Neither this Agreement nor any of the rights or obligations may be assigned by Licensee without the prior written consent of Tartan, which may be withheld in Tartan's sole discretion.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, and such counterparts together shall constitute one and the same instrument.
Severability. In the event any provision of this Agreement is deemed to be illegal, invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected, and this Agreement shall continue in full force and effect.
Relationship of Parties. Tartan and Licensee acknowledge and agree that the relationship between the Parties established by this Agreement is that of independent contractors and that no employment or partnership between them is created. Neither party shall have any authority or right to enter into contracts or undertakings in the name of the other Party nor to assume or create any obligation of any kind on behalf of the other Party. Wholly owned and/or affiliated entities of Tartan.
No Advisory Relationship. Tartan and Licensee acknowledge and agree that no advisory relationship is created by this Agreement. Licensee should not construe any of the Tartan Data or Tartan Services provided by Tartan in whatever format as business, financial, investment, hedging, trading, legal, regulatory, tax, or accounting advice and should not make the data the primary basis for any operational or investment decisions. If Licensee requires operations or investment advice with respect to the Tartan Data or Tartan Services, or any other product provided by Tartan, Licensee should consult its own business, financial, accounting, or legal advisors. Licensee accepts full responsibility for its own decisions and for the consequences of those decisions.
Compliance with Export Laws. Licensee acknowledges and understands that the Tartan Data and Tartan Services (and any deliverables included therein) may be subject to restrictions on export, and shall, at its sole cost and expense, comply with any applicable export laws.
Non-Solicitation. Unless otherwise agreed, each Party shall not, directly or indirectly, divert or attempt to divert from either Party any of that Party’s employees through solicitation, hiring, or otherwise during the term of this Agreement and for one year thereafter. The foregoing restriction shall not apply with respect to advertisements in newspapers of general solicitation, job fairs or other general means of employment solicitation that do not target specific individuals.
Publicity. Neither Party shall issue any press release, or make any public statement, concerning the existence of this Agreement or the terms hereof. For sake of clarity, Tartan may refer to Licensee in print marketing or other promotional materials with prior consent from Licensee.
Trade Sanctions Compliance. Licensee shall provide Tartan notice of the names and addresses of any employee, contractor, agent, or representative of Licensee which may be the target of, or owned or subject to control by, any country or person that is subject to economic sanctions or trade restrictions imposed by the U.S. government; or debarred or excluded or declared ineligible to participate in U.S. government contracts, or contracts, grants, or other programs financed in whole or part by the U.S. government. Licensee personnel receiving or using the Tartan Data and/or the Tartan Services under this Agreement must not be citizens or permanent residents of countries subject to comprehensive U.S. trade sanctions without Tartan’s prior written consent. Licensee shall provide information or documentation necessary for Tartan to verify and secure any required trade licenses or authorizations as appropriate.
Compliance with Laws. Tartan and Licensee acknowledge and agree that they shall at all times and in relation to performance under this Agreement comply with all applicable laws, statutes, regulations and codes relating to (i) anti-bribery and anti-corruption, including but not limited to: (y) the Bribery Act of 2010 and (y) the Foreign Corrupt Practices Act; and (ii) data privacy, including without limitation the EU General Data Privacy Regulation (GDPR).