Procurated Master Service Agreement 

 

This Master Service Agreement (“MSA”), effective as of the date of last signature below (“Effective Date”), is entered into by and between Procurated, with its principal place of business at 875 15th Street, NW, Suite 600, Washington, DC 20005 (“Procurated” or “we,” “us,” “our”), and the undersigned entity or person ordering Procurated Offerings (“Customer” or “you,” “your”). This MSA specifies the terms and conditions under which we will provide Procurated Offerings to you. Unless otherwise specified, capitalized terms will have the meanings set forth in Section 10 (Definitions) of this MSA. 

1. Access and Use of Procurated Offerings 

1. Access to Procurated Offerings. Subject to the terms of the Agreement and Documentation, beginning on the effective date of the Order Form (and any renewal, as applicable), we permit your Users to access and use the Procurated Offerings specified in your Order Form(s) during the applicable Order Term, solely for your internal business purposes or mission, unless otherwise specified below. 

1. Renewals. Upon expiration of the then-current Order Term, your access to the Procurated Offerings specified in that Order Form will automatically renew for a subsequent Order Term of equal length and  subject to the same terms as the expired subscription, at a fee equal to the prior pro-rated fee increased by the greater of the Consumer Price Index (“CPI”) and 5%. Notwithstanding the foregoing, your access to such Procurated Offerings will not automatically renew either (i) in the event such a renewal is contrary to applicable law, or (ii) you provided written notice to us at least 60 days prior to the expiration of the then-current Order Term that you desire to have your access to such Procurated Offerings lapse.  

1. Restrictions on Access and Use. Unless otherwise specified in the Order Form, (i) an unlimited number of Users may access and use the Canary Buyer’s Module during the applicable Order Term, provided that all such access and use must be solely for your internal business operations or mission; and (ii) if you designate one or more of your Suppliers, then an unlimited number of Users employed by or representing such Supplier(s) may access and use the Canary Supplier’s Module during the applicable Order Term, provided that all such access and use must be solely for such Supplier(s) internal business operations. In addition to the foregoing, the Order Form may provide for specific quantities or other limitations for Users of Canary or other Procurated Offerings. When specified quantities or limitations are so provided, only that quantity of Users may access and use such Procurated Offerings and/or Users may access and use such Procurated Offerings only in accordance with such limitations. You and your applicable Affiliates agree to not: (i) access, use, copy, sell, resell, license, sublicense, or otherwise make available the Procurated Offerings in any manner or for any purpose not explicitly authorized by the Agreement, including in a manner that exceeds your authorized access and use rights, or in a manner contrary to applicable law; (ii) modify, reverse engineer, decompile, or create derivative works of any portion of the Procurated Offerings, except as provided in the Documentation or except to the extent permitted by applicable law; (iii) interfere with or disrupt the integrity or performance of Procurated Offerings or attempt to gain unauthorized access to a Procurated Offering or its related systems or networks; (iv) use the Procurated Offerings to develop or train any product or service that is competitive with any Procurated Offering or our business; (v) make available to any third-party any analysis of the operation of the Procurated Offerings without our prior written consent; (vi) use any Procurated Offering to provide a software-as-a-service offering, service bureau services, or similar services; (vii) make available to any third-party any Reviews except to the extent permitted herein, permitted or required by applicable law, or as otherwise explicitly approved by Procurated; or (viii) use the Procurated Offerings to store or transmit material in violation of third-party privacy rights, that is infringing or otherwise unlawful or tortious, or that constitutes a virus, Trojan horse, worm, time bomb, cancelbot, corrupted file, or any other similar software or program.  

1. Customer Responsibility; Protected Data. You are responsible for (i) compliance with the Agreement by your representatives, your Suppliers, and applicable Affiliates permitted hereunder that use or access the Procurated Offerings under your account or pursuant to an Order Form; and (ii) the proper operation of networks and systems used by you, your representatives, your Suppliers, and such applicable Affiliates to connect to the Procurated Offerings. You and your Suppliers will not transfer to us or provide us any access to any Protected Data, except for names and contact information for your contact persons, Standard Contract Information, and Agency Spend Information. 
    

1. Fees and Audit Rights 

1. Fees. The fees and payment terms set forth in the Order Form will apply to your use of the Procurated Offerings. Except as set forth in the Agreement and to the extent permitted by applicable law, all payment obligations are non-cancelable, and fees are non-refundable and not subject to offset.  

1. Payment and Payment Disputes. You agree to pay in full any undisputed invoiced amounts within the period set forth in the applicable Order Form. If you have a good faith dispute with an invoice, you must raise such dispute in writing within such period, or the invoice will be deemed correct. If you timely dispute an invoice, you shall do so only in good faith and cooperate diligently to resolve the dispute. If the parties are unable to resolve such a dispute within 30 days, each party shall have the right to seek any remedies it may have under the Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. If you are an agency of or otherwise represents the U.S. Government, unresolved payment disputes will be handled in accordance with the Disputes clause in Section 9.b. 

1. Taxes. Fees do not include Taxes. You are responsible for all Taxes related to your purchases and use of the Procurated Offerings (including by your Suppliers). If we are required to collect or pay Taxes on your behalf, we will invoice you that amount, and you must pay that amount unless you provide a valid tax exemption certificate. You may not withhold Taxes from payments to us unless required by applicable law. If such withholding is required, you must gross up the payment, so we receive the full amount owed. At our request, you must also provide proof that any withheld Taxes were paid to the appropriate tax authority.  
    

1. Intellectual Property 

1. Procurated Intellectual Property Rights. As between the parties, Procurated retains all right, title, and interest in and to the Procurated Offerings, including the software, platform, website, methodologies, analytics, aggregated review content, and all related updates, enhancements, and derivative works (collectively, “Procurated Intellectual Property”). Procurated Intellectual Property also includes all Reviews and related content displayed on or through the Procurated platform, except for Customer Data as defined below. Except for the limited rights expressly granted under the Agreement, no right, title, or interest in or to any Procurated Intellectual Property is granted to Customer. Customer shall not remove, alter, or obscure any proprietary rights notices contained in the Procurated Offerings or related materials. 

1. Customer Data. Customer retains all right, title, and interest in and to reviews, ratings, feedback, and related data submitted by employees or authorized representatives of Customer during the applicable Order Term (“Customer Data”). During the Order Term, and for up to ninety (90) days following expiration or termination of the Agreement, Customer may request and download its Customer Data for its internal governmental purposes. Customer may use, reproduce, distribute, archive, analyze, and incorporate Customer Data for any internal governmental purpose, including procurement operations, compliance, public records responses, litigation, audits, reporting, and intergovernmental cooperation. Except as expressly permitted above, Customer shall not license, commercialize, or incorporate Customer Data into any third-party commercial application, platform, database, or product without Procurated’s prior written consent. Customer grants Procurated a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to host, use, reproduce, modify, display, distribute, publish, and otherwise utilize Customer Data in connection with the operation, maintenance, improvement, and commercialization of the Procurated Offerings and related products and services, including after expiration or termination of the Agreement. 
   Without limiting the foregoing, Procurated may use Customer Data for the following purposes: 

• Displaying reviews, ratings, and related feedback on a supplier’s national profile on procurated.com to assist public sector entities in evaluating supplier performance; 

• Incorporating Customer Data into aggregated, benchmarked, anonymized, or comparative datasets, analytics, reports, and related products or services designed to help public sector procurement professionals evaluate suppliers and improve vendor performance outcomes; and 

• Operating, training, improving, and supporting the Procurated Offerings and related functionalities. 

Nothing in this Agreement restricts Customer from disclosing information as required by applicable law, public records statutes, audit obligations, litigation holds, subpoenas, governmental investigations, or court order. 

1. Use of Reviews. Subject to Customer’s payment of all applicable fees, Procurated grants Customer a limited, non-exclusive, non-transferable, revocable license during the applicable Order Term to access and use Reviews solely for Customer’s internal business and governmental purposes and in accordance with the Agreement. For the avoidance of doubt, Reviews are not “works made for hire” and, except for Customer Data specifically attributable to Customer, constitute Procurated Intellectual Property and Confidential Information. Reviews may not be disclosed, redistributed, republished, or shared with third parties except as required by law, public records obligations, audit requirements, litigation holds, court order, intergovernmental cooperation, or other internal governmental purposes. 
    

1. Confidentiality 

1. Confidentiality. During the Agreement, each party (“Receiving Party”) may receive Confidential Information of the other party. The Receiving Party agrees to use the same degree of care regarding such Confidential Information that it uses to protect the confidentiality of its own information of like kind (but not less than reasonable care). The Receiving Party further agrees to: (i) not use any Confidential Information of the other party (“Disclosing Party”) for any purpose outside the scope of the Agreement; and (ii) except as otherwise authorized in writing by the Disclosing Party, limit access to the Disclosing Party’s Confidential Information to those of the Receiving Party’s and its Affiliates’ employees and representatives who need that access for purposes consistent with the Agreement and who are subject to confidentiality obligations not less protective of the Confidential Information than those set forth herein. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in confidence during the term of the Agreement and for a period of five (5) years after the termination or expiration of the Agreement. Notwithstanding the foregoing, the Receiving Party’s confidentiality obligations shall be perpetual for the Disclosing Party’s Confidential Information that qualifies as a trade secret under applicable law. 

1. Permitted Disclosures. If required by appliable law, regulation, or court order to disclose the Disclosing Party’s Confidential Information, then the Receiving Party shall, to the extent legally permitted, provide the Disclosing Party with advance written notice and cooperate in the Disclosing Party’s reasonable efforts to obtain confidential treatment of the Confidential Information, including the opportunity to seek administrative or judicial relief. If the Receiving Party is the U.S. Government and reasonably determines that it is required to disclose or otherwise release the Disclosing Party’s Confidential Information pursuant to applicable freedom of information laws or regulations, including, for example, the U.S. Freedom of Information Act, 5 U.S.C. 552, then the Disclosing Party shall have the opportunity to seek appropriate administrative or judicial relief. 

1. Injunctive Relief. The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that the Disclosing Party may seek appropriate equitable relief in addition to whatever other remedies it might have at law in the event of any such disclosure.  

1. Return of Confidential Information. Upon the Disclosing Party’s written request, except for electronic copies made in the course of normal network backups, as permitted or required by applicable law, or as otherwise set forth in the Agreement, the Receiving Party will promptly return to the Disclosing Party or destroy all materials containing or reflecting the Disclosing Party’s Confidential Information. 
    

1. Term and Termination 

1. Term. The Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with the terms of the Agreement. If there are no Order Forms in effect, either party may terminate the Agreement upon written notice to the other party. Further, you may terminate the Agreement for convenience upon written notice to us; provided that you will remain responsible for paying all remaining amounts that would have been due under the Agreement had it not been terminated early.  

1. Right to Terminate. Either party may terminate the Agreement (including all related Order Forms) if the other party: (i) materially breaches the Agreement and fails to cure such material breach within 30 days after receiving written notice from the terminating party; (ii) ceases operation without a successor; or (iii) enters bankruptcy or a similar proceeding, or has such a proceeding filed against it that is not dismissed within 60 days (unless prohibited by law).(to the extent such termination is not prohibited by law). 

1. Effect of Termination. In the event the Agreement is terminated by you due to our material breach of the Agreement or is terminated pursuant to the “Product Warranty” section or the “Right to Assign Agreement” section, we will refund to you any prepaid fees that have not accrued prior to the date of termination. In the event the Agreement is terminated by us due to your material breach of the Agreement, or you terminate for convenience, you will pay all remaining amounts that would have been due under the Agreement had it not been terminated early. The following will automatically terminate upon termination of the Agreement or all related Order Forms: the Agreement, your right to access or receive the Procurated Offerings, and our obligations to provide Procurated Offerings. When a Procurated Offering license expires or terminates, you will immediately cease using the Procurated Offering. 

1. Survival. Any provisions of the Agreement that by their nature should survive termination or expiration of the Agreement shall survive, including without limitation Sections 2 (Fees and Audit Rights), 3 (Intellectual Property), 4 (Confidentiality), 5(c) (Effect of Termination), 5(d) (Survival), 6(d) (Warranty Disclaimer), 7 (Indemnification), 8 (Limitation of Liability), 9 (General Terms), and 10 (Definitions), together with any payment obligations accrued prior to termination or expiration. 
    

1. Warranties 

1. Product Warranty. With respect to any Procurated Offerings and any Updates you procure under an Order Form (other than Implementation Services, for which the sole warranty is set forth in Section 6.b), we warrant and covenant during the applicable Order Term, that (i) such Procurated Offerings will perform in substantial conformance with the technical specifications in the applicable Documentation, and (ii) the functionality of each such Procurated Offering will not be materially reduced by us. Except as otherwise stated in applicable law, your exclusive remedy and our sole liability for any breach of the foregoing warranty will be one of the following, which shall be selected at Procurated’s sole discretion: (x) the correction of the Procurated Offering errors that caused the breach of such warranty, (y) replacement of such Procurated Offering with materially functionally equivalent software, or (z) termination of the applicable Order Form(s) for the affected Procurated Offering and the refund of any prepaid fees paid for the terminated Procurated Offering for periods after the effective date of termination. 

1. Implementation Services Warranty. During the applicable Order Term, we warrant that any Implementation Services provided by us will be performed (i) in a competent and workmanlike manner in accordance with accepted industry standards and practices, and (ii) in accordance with the material requirements set forth in the applicable Order Form. Your exclusive remedy and our entire liability for any breach of the foregoing warranty will be that we will use commercially reasonable efforts to re-perform such services in a timely manner and in conformance with the foregoing warranty requirements. 

1. Mutual Warranty. Each party represents and warrants that it has validly entered into the Agreement and has the legal power to do so and, in connection with its performance of the Agreement, shall comply with all laws applicable to it. 

1. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROCURATED DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROCURATED DOES NOT WARRANT THAT THE PROCURATED OFFERINGS OR REVIEWS WILL BE ERROR FREE, ACCURATE, TIMELY, OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED IN THE AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO YOU. 
    

1. Indemnification 

1. Indemnification by Procurated. We will defend you (and your Affiliates, directors, officers, employees and agents (collectively, “Indemnified Persons”)), at our expense, from Claims, and will indemnify and hold you and your Indemnified Persons harmless against Losses incurred by you in connection with such Claims, but solely to the extent such Claims arise from an allegation that your use of the Procurated Offerings as contemplated under the Agreement infringes a third party’s intellectual property rights. Notwithstanding the foregoing, we will have no indemnification obligations to you if the Claim or Loss arises from (i) any access, use, reproduction, distribution, or modification of any Procurated Offering in a manner not authorized under the Agreement or in violation of applicable law; (ii) our use of materials or data provided by you or a third party in the manner permitted under the Agreement; (iii) your use of the Procurated Offerings in combination with any product or service not provided by us; or (iv) use of a prior version of the Procurated Offerings after we have provided to you a Update thereto.  

If approval of the U.S. Attorney General or a different authority is required for you to accept the procedures set forth in Section 7.d, we will, upon such approval, defend, indemnify, and hold harmless your Indemnified Persons as set forth in this Section.  

1. Indemnification Remedy. If we reasonably believe your use of the Procurated Offerings could result in an indemnification Claim under Section 7.a, then we will have the right, at our option and expense to: (i) replace or modify such Procurated Offering to make it non-infringing and of substantially equivalent functionality, (ii) procure for you the right to continue using such Procurated Offering under the terms of the Agreement, or (iii) if we are unable to accomplish either (i) or (ii) despite using our reasonable efforts after 60 days, then either party may terminate the Agreement. In the event of such termination, our sole liability, in addition to the indemnification obligations in this section, shall be to refund you any prepaid fees for the terminated Procurated Offering that was to be provided after the effective date of termination. 

1. Indemnification by Customer. You will defend us and our Indemnified Persons at your expense for Claims, and indemnify and hold us and our Indemnified Persons harmless against any Losses incurred by us in connection with such Claims, to the extent such Claims arise from (i) your use of any Procurated Offerings in violation of the Agreement, and (ii) our use of Customer Data in a manner permitted under the Agreement.  

Notwithstanding the foregoing, if you are an agency of or otherwise represent the U.S. Government, then to the extent that any indemnity or limitation of liability obligation set forth in this Section or elsewhere in the Agreement, is deemed unlawful, it shall not apply. In lieu of such indemnity obligation(s), you hereby agree to provide a warranty of the subject matter covered in such applicable indemnity section. Specifically, without limitation, you agree that you are solely responsible for all risks arising from or relating to any Customer Data used in connection with any Procurated Offering, and hereby represent and warrant that any Customer Data used in connection with any Procurated Offering will not violate the Agreement or applicable law, infringe or misappropriate any third-party rights, or cause harm to any third party or Procurated. 

1. Indemnification Procedures. The indemnifying party’s obligations hereunder only arise if the indemnified party: (i) promptly gives written notice of the Claim to the indemnifying party (although a delay will relieve the indemnifying party’s obligations only to the extent of prejudice); (ii) gives the indemnifying party sole control of the defense and settlement of such Claim (provided that the indemnifying party may not settle such Claim that imposes liability on, or admits fault by, the indemnified party, without its consent); and (iii) provides, at the indemnifying party’s cost, all reasonable information assistance to defend or settle such Claim. This Section 7 states the indemnified party’s exclusive remedies and the indemnifying party’s sole obligations related to the subject matter of these sections. 
    

1. Limitation of Liability 

1. EXCLUDED CLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING LOSS OF USE, LOSS OR INACCURACY OF DATA, INTERRUPTION, DELAY COSTS, COVER COSTS, OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE EXCLUSIONS DO NOT APPLY TO: (I) A PARTY’S GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT, OR VIOLATION OF APPLICABLE LAW; (II) A PARTY’S OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION); OR (III) A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (COLLECTIVELY, “EXCLUDED CLAIMS”). 

1. Limitation of Liability. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PROCURATE’S OR ANY OF ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID OR PAYABLE UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE CLAIM ARISING.  

1. General Terms 

1. Assignment. The Agreement will bind and benefit the parties and their permitted successors and assigns. You may not assign the Agreement without our written consent, except upon prompt written notice, to a successor in connection with a merger, reorganization, or sale of all or substantially all of your assets or equity. If you assign or transfer the Agreement to a competitor of ours, we may terminate the Agreement upon written notice. Any prohibited transfer or assignment of the Agreement will be null and void. 

1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth herein), it shall provide written notice to the other party of the specific issue(s) in dispute. Within 30 days after such notice, knowledgeable executives of the parties shall confer at least once to attempt in good faith to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this section shall not apply to claims subject to indemnification under Section 7 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information. Where you are an agency of or otherwise represent the U.S. Government, and the parties fail to reach agreement on any request for equitable adjustment, claim, appeal, or action arising under or relating to the Agreement, the dispute shall be resolved in accordance with applicable law.  

1. Governing Law and Venue. The Agreement will be governed by the laws of the [State of Delaware], U.S.A. without regard to the conflict of laws. Each Party expressly and irrevocably waives any right to a jury trial in any such proceeding. In any dispute arising under the Agreement, the prevailing party will be entitled to recover its cost of enforcing its claim, including reasonable attorney fees.  

Notwithstanding the foregoing, if you are the U.S. Federal Government or an agency thereof, the Agreement will be governed by the federal laws of the United States. If you are a U.S. State Government or an agency thereof, the Agreement will be governed by the laws of that State. 

1. Federal Government End Use Provisions. To the extent you are an agency of or otherwise represent the U.S. Government, (i) you hereby agrees that each Procurated Offerings qualifies as a  “commercial product” as defined by FAR Part 2.101 or the state law corollary, and (ii) Procurated provides the Procurated Offerings, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Procurated Offerings include only those rights customarily provided to the public as defined in the Agreement. This customary commercial license is provided in accordance with the United States Federal Acquisition Regulation (“FAR”) section 12.211 (Technical Data) and FAR section 12.212 (Software) and, for Department of Defense transactions, the United States Defense Federal Acquisition Regulation Supplement (“DFARS”) section 252.227-7015 (Technical Data Commercial Items) and DFARS section 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Procurated to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. 

1. Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligation under the Agreement (other than payment obligations) to the extent caused by events beyond its reasonable control, including acts of God; labor disputes or other industrial disturbances; third-party actions; network intrusions or denial of service attacks; failures of electrical, telecommunications, internet, internet service providers, hosting facilities, hardware, software, or utilities; earthquake, storms or other natural events; embargoes; riots; public health emergencies government acts or orders; or acts of terrorism or war. 

1. Customer’s Name and Logo. Each party has the right to issue mutually-agreed upon press releases that include a quotation from one of the other party’s senior executives. You grant us the right to use your name and logo for the sole purpose of identifying you as a customer and for such press releases.  

1. Notice. Unless our Documentation specifies otherwise for certain notices provided by us, any notice, approval or other communication required or otherwise provided for under the Agreement will be in writing and deemed to have been given when (i) personally delivered; or (ii) sent by electronic mail; or (iii) sent by a commercial overnight courier.  

1. Reseller Agreements. If you enter into an order for a Procurated Offering with one of our authorized resellers (“Reseller”), (i) such document will constitute an Order Form under the Agreement, and (ii) your payment obligations under such order will be to the Reseller, provided that any transactions between you and the Reseller for products or services other than Procurated Offerings will not be a part of the Agreement. For clarity, your use of Procurated Offerings will be governed exclusively by the terms of the Agreement, and the Agreement will supersede any additional or conflicting terms in your order with the Reseller. No term in any order entered into via a Reseller will be deemed to modify the Agreement unless pre-authorized in writing by us. Non-payment of fees owed to a Reseller under an order for Procurated Offerings will constitute a material breach of the Agreement. 

1. Entire Agreement; Order of Precedence. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and cancels all prior written and oral agreements and communications relating to the subject matter of the Agreement. In the event of a conflict, the provisions of an Order Form (excluding conflicting or additional provisions of a purchase order or other documents issued by you, which shall be null and void) will take precedence over provisions of this MSA and over any other addenda or attachment, but solely with respect to your use of the applicable Procurated Offerings governed by such Order Form.  

1. Cumulative Remedies. Except as otherwise provided in the Agreement, none of the rights, powers or remedies conferred under the Agreement will be mutually exclusive. Each such right, power or remedy will be cumulative and in addition to every other right, power, or remedy available to such party, whether available at law, in equity or otherwise.  

1. Relationship of the Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Nothing in the Agreement confers or is intended to confer any rights to any person not a party to the Agreement. There are no intended third-party beneficiaries of the Agreement. 

1. Export Control. Each party shall comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, such as the Export Administration Regulations (“EAR”) and the economic sanctions programs implemented by the Office of Foreign Assets Control “(OFAC”). You acknowledge that (i) the direct or indirect transfer of a Procurated Offering contrary to any applicable law is prohibited; (ii) you are not a Restricted Party or located in a Restricted Country; (iii) you are not controlled by or acting on behalf of any Restricted Party or anyone headquartered or located in a Restricted Country; and (iv) neither you nor any of your employees, agents or contractors will transfer or allow any Procurated Offering to be transferred to a Restricted Party or Restricted Country. You shall not sell, export, re-export, transfer, divert, or make available any Procurated Offerings to an end user or end use specified in 15 C.F.R. Part 744 of the EAR. 

1. Miscellaneous. The parties may execute (by hand or electronic means) the Agreement and any documents hereunder in counterparts, each of which will be deemed an original and considered one and the same agreement. Section headings are included for convenience and shall not affect interpretation of the Agreement. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect. A waiver of any right under the Agreement is only effective if it is in writing and only against the party who signed such writing. Any amendment or modification of the Agreement must be in writing and signed by both parties.  
    

1. Definitions   

Unless otherwise specified in the rest of the Agreement, the following capitalized terms will have the meanings specified below. 

1. “Affiliates” shall mean any person or entity directly or indirectly Controlling, Controlled by or under common Control with a party to the Agreement, where “Control” means the legal power to direct or cause the direction of the general management of the company, partnership or other legal entity.  

1. “Agency Spend Information” means purchase order or other spending data that you provide to Procurated from your e-procurement or financial systems which may include, by way of example, Supplier names, transaction descriptions, transaction amounts, and purchaser names and contact information.  Such data is used to generate reviews from the purchasers included in the data.  

1. “Agreement” means this MSA and any exhibits or addenda, and any Order Forms that reference this MSA. 

1. “Canary” means the generally available contract performance intelligence platform powered by Procurated identified on an Order Form that is licensed or made available to you pursuant to the terms of the Agreement. The features, functionality, modules, and service components included within Canary are further described in Procurated’s Canary Product Guide, available at: https://home.procurated.com/resources/canary-product-guide/ (as may be updated by Procurated from time to time). 

1. “Claims” means claims, demands, suits, or proceedings made or brought against you by a third party. 

1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or reasonably should be known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Data will be deemed your Confidential Information without any marking or further designation. All Procurated Offerings will be deemed our Confidential Information without any marking or further designation. Confidential Information shall not, however, include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party. 

1. “Customer Data” means data, text, and other content of yours or a third-party that you or your representatives utilize with any Procurated Offering or upload or transfer to a Procurated Offering, including software, machine images, and data regarding Suppliers that your employees or third-party individuals acting on your behalf input directly into Canary during an Order Term. 

1. “Documentation” means the technical documentation or user manuals normally distributed or made available by us in connection with a Procurated Offering. 

1. “Implementation Services” means the services provided by us, as listed on an Order Form, whereby Procurated assists you with the implementation of the licensed Procurated Offerings. Additional information regarding standard implementation activities, timelines, responsibilities, and onboarding processes is available in Procurated’s Canary Implementation Guide, available at: https://home.procurated.com/resources/canary-implementation-guide/ (as may be updated by Procurated from time to time).  

1. “Losses” means any loss, damage, or costs finally awarded or entered into in an approved settlement hereunder (including, without limitation, reasonable attorneys’ fees). 

1. “Order Form” means an order form entered into between you and Procurated for the use of any Procurated Offerings.  Statements of work, addenda, and any other attachments to an Order Form shall be deemed part of such Order Form.  

1. “Order Term” means the term of the access grant or service set forth in an Order Form for the provision or use of the relevant Procurated Offerings, including all renewals in accordance with the Agreement. 

1. “Procurated Offerings” means Canary, our artificial intelligence tools, Implementation Services, and any other services or offerings identified in an Order Form, as well as any features or offerings made available by us as a preview or other pre-release version. 

1. “Protected Data” means any payment or credit card data and any other data regulated under the Payment Card Industry Data Security Standard (“PCI DSS”); data regulated under the Family Educational Rights and Privacy Act (“FERPA”); health records regulated under the Health Insurance Portability and Accountability Act (“HIPAA”); Controlled Unclassified Information as defined in Section 2002.4 of Title 32 CFR (“CUI”); Covered Defense Information as defined in the Defense Federal Acquisition Regulation Supplement (“CDI”); and any other data or information that is considered “Personal Data,” “Protected Health Information,” “Personally Identifiable Information” or similar terms under applicable law. 

1. “Restricted Country” means any country or territory that is or becomes subject to comprehensive OFAC sanctions by the United States or another applicable country or prohibited from receiving Procurated Offerings under applicable export controls. 

1. “Restricted Party” means any person or entity that is (i) listed on any of the lists of persons or entities maintained by the U.S. Government or any other applicable government that prohibit such persons or entities from receiving exports or services; (ii) owned 50% or more by one or more parties on an OFAC list; or (iii) a national or resident of, or an entity or governmental authority in a Restricted Country. 

1. “Review” means an electronic report about a Supplier and its performance created by Canary based on numerous proprietary processes developed by Procurated, including (but not limited to) tailored end user review collection surveys conducted by Procurated and its representatives, and information augmentation via Procurated’s artificial intelligence models. 

1. “Standard Contract Information” means the contract’s name and identification number; the term or period of performance; the buying entity’s name and contact information; and the Supplier’s name and contact information.  

1. “Supplier” means an entity or person that delivers products or services to end users. 

1. “Taxes” means taxes, levies, duties, or similar governmental assessments including, for example, any sales, use, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Procurated. 

1. “U.S. Government” means an agency of the federal government of the United States of America, or any government of any state thereunder. If you are a state government or an agency of a state government, then references to federal law or regulations shall be replaced with a reference to the corresponding state law or regulation if such exists.  

1. “Update” means a later commercial release of a Procurated Offering made available after you access or use the Procurated Offering during an Order Term. 

1. “User” means a single identifiable individual with unique login credentials enabling use of or access to Procurated Offerings.