xTuple Master Services Agreement

This Master Services Agreement (“Agreement”), between OPENMFG, LLC, d/b/a xTuple (“xTuple”) and “Customer”, is effective as of the “Effective Date”, and governs the products and services furnished by xTuple to Customer (the “Services”). xTuple and Customer agree that this Agreement consists of this executed document, each of its terms and conditions, the Supplemental Agreement, and any attachments or statements of work expressly incorporated by reference into the Agreement, and any applicable Use Rights.

xTuple and Customer mutually accept, and hereby agree to, the terms and conditions of the above listed Supplemental Agreement(s) and this Agreement set forth below.

This Master Services Agreement is entered into by xTuple and the Customer identified on the above signature form, and its terms and conditions are incorporated by reference into any Supplemental Agreement under which Customer acquires any of the Services. This Agreement shall constitute the complete and exclusive statement of the agreement between them, and supersedes all prior or contemporaneous proposals, oral or written, and all other communications between them relating to the subject matter hereof.

1. Definitions. In this Agreement, the following definitions apply:

“Affiliate” means any legal entity that a party owns, or is owned by, or that is under common ownership with that party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.

“Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand to be confidential, including Customer Data and the terms of xTuple agreements. The Online Services terms may provide additional obligations for, and limitations on disclosure and use of, Customer Data. Confidential Information does not include information that (a) becomes publicly available without a breach of this Agreement, (b) was lawfully known or received by the receiving party without an obligation to keep it confidential, (c) is independently developed, or (d) is a comment or suggestion one party volunteers about the other’s business, products, or services.

“Customer Contact” means the individual or individuals identified by name as such according to this Agreement, including within a Statement of Work for Support Services, and who are authorized to initiate the Incident procedures described in such Statement of Work. Customer may, effective thirty (30) days following written notice to xTuple, replace any Customer Contact.

“Customer Data” means Customer Materials in the custody of xTuple, and is considered Confidential Information.

"Customer Materials" means all information, computer programs, materials, facility access and know-how that Customer makes available to xTuple pursuant to xTuple’s obligations under this Agreement or any Supplemental Agreement, including without limitation a description of the type of hardware and other software Customer is using in conjunction with its operation of the Software.

“Fixes” means Product fixes, modifications, or enhancements, or their derivatives, that xTuple either releases generally (such as service packs), or that xTuple provides to Customer when performing Professional Services to address a specific issue.

“Incident” means a problem, which cannot be broken down into subordinate problems, associated with the application or functioning of the Software on Customer’s system, determined in accordance with the procedural requirements of this Agreement for the Support Services.

“Incident Response” means the method(s) to resolve an Incident attempted by xTuple, subject to the qualifications of any terms and conditions of this Agreement for the Support Services. Incident Response includes answers to questions, error correction efforts, problem investigation and diagnosis, information sharing, guidance and suggestions, and such other assistance as may be determined by xTuple to be an appropriate response to each Incident, but does not include configuration of hardware and networking services, consulting services or general computer system maintenance.

“Major Release” means electronic media made generally available by xTuple containing major new Software features or enhancements, and identified with a distinguishing number to the whole number column (e.g., “xTuple 2.0” represents a new Major Release over “xTuple 1.0”).

“Minor Release” means electronic media made generally available by xTuple containing minor new Software features or enhancements, and identified with a distinguishing number to the tenths decimal column (e.g., “xTuple 1.1” represents a new Minor Release over “xTuple 1.0”).

“Online Services” means the off-site hosting of Customer Data and/or website in a “cloud” environment, which can include, but is not limited to, virtual server space apportioned and managed by xTuple in a data center operated by a Third Party Provider of xTuple’s choosing.

“Pre-existing Work” means any computer code or written materials developed or otherwise obtained independent of this Agreement.

“Product” means all products identified in the Product List, such as all Software, Online Services, and other web-based services, including pre-release or beta versions.

“Product List” means the statement published by xTuple from time to time at xTuple.com. The Product List includes Product-specific conditions or limitations on the acquisition of licenses for Products.

“Professional Services” means Product Support Services and/or other xTuple consulting or development services provided to Customer under this Agreement. “Professional Services” does not include Online Services.

“Services Deliverables” or “Deliverables” means any computer code or materials, other than Products or Fixes that xTuple leaves with Customer at the conclusion of xTuple’s performance of Professional Services.

“Support Services” means the services to be provided by xTuple to Customer pursuant to a Statement of Work for support, executed between the parties and incorporated into a Supplemental Agreement for Professional Services. Support Services include all steps appropriate to furnishing an Incident Response. Activities falling outside of the defined meaning of Support Services may be available from xTuple pursuant to a separately executed Statement of Work.

“Support Period” means the term during which Support Services shall be available under the applicable Statement of Work for Support Services.

“Software” means the machine-executable, licensed copies of xTuple software identified on the Product List. Software does not include Online Services or Services Deliverables, but Software may be part of an Online Service.

“Statement of Work” means any work orders or other description of Professional Services (including in a separate Supplemental Agreement) that incorporates this Master Services Agreement.

“Supplemental Agreement” means any agreement expressly incorporating the terms of this Master Services Agreement.

“Support Period” means the term during which Professional Services shall be available under a Supplemental Agreement.

“Third Party Provider” means a third party, other than Customer or xTuple, that provides a product or service on behalf of Customer or xTuple related to any Product. Third Party Provider’s products and services terms and conditions will be made available in Supplemental Agreements.

“use” or “run” means to copy, install, use, access, display, run, or otherwise interact with.

“Use Rights” means, with respect to any licensing program, the use rights or terms of service for each Product and version published for that licensing program. The Use Rights supersede the terms of any end user license agreement (on-screen or otherwise) that accompanies a Product. The Use Rights for Software are defined in an applicable Supplemental Agreement. The Use Rights for Online Services are published in the Online Services Terms.

2. Products; Use restrictions

a. Products. Unless otherwise specified in a Supplemental Agreement, use of any Product is governed by the Use Rights specific to each Product and version and by the terms of the applicable Supplemental Agreement.

b. Fixes.

(1) Fixes. Each Fix is licensed under the same terms as the Product to which it applies. If the Fix is not provided for a specific Product, any use terms xTuple provides with the Fix will apply. If no use terms are provided, Customer shall have a non-exclusive, perpetual, fully paid-up license to use and reproduce the Fix solely for its internal business use. Customer may only modify the Fix under the terms of a Supplemental Agreement, if applicable.

(2) Pre-existing Work. All rights in Pre-existing Work will remain the sole property of the party providing the Pre-existing Work. Each party may use, reproduce, and modify the other party’s Pre-existing Work only as needed to perform obligations related to Professional Services. Upon payment in full and subject to Customer’s compliance with this Agreement, xTuple grants Customer a non-exclusive, perpetual, fully paid-up license to use, reproduce, and modify (excluding object code) any xTuple Pre-existing Work provided as part of a Services Deliverable, solely in the form delivered to Customer and solely for Customer’s internal business purposes.

(3) Affiliates’ Rights. Customer shall not sublicense its rights in Services Deliverables to its Affiliates without written permission of xTuple.

c. Third party software and services. For any third party software or service provided by xTuple to Customer, such software and services are provided under the terms and conditions of the Third Party Provider. All third party software and services may be identified in a Supplemental Agreement.

d. Customer software and technology. Customer is solely responsible for any non-xTuple software of technology that it installs or uses with the Products, Fixes, or Services Deliverables. Customer may not install or use non-xTuple software or technology in any way that would subject xTuple’s intellectual property or technology to obligations beyond those included in this Agreement.

e. Restrictions on use. Customer must not (and must not attempt to) reverse engineer, decompile or disassemble any Product, Fix, or Services Deliverable. Except as expressly permitted in this Agreement, Customer must not (1) separate and run parts of a Product on more than one computer, upgrade or downgrade parts of a Product at different times, or transfer parts of a Product separately; or (2) distribute, sublicense, rent, lease, lend, or host any Product, Fix, or Services Deliverable.

f. Supportability. Support for Products is available under the terms of a Supplemental Agreement for Professional Services.

3. Confidential Information.

a. During the Term, and for two (2) years thereafter, each party shall use commercially reasonable efforts to prevent any unauthorized disclosure of the other party's Confidential Information. At a minimum, each party shall maintain at least the same procedures regarding the other party's Confidential Information that it does for its own.

b. Each party may disclose the other party's Confidential Information to employees, consultants, agents and other contractors only to the extent necessary to enable the disclosing party to perform its duties under this Agreement.

c. Neither party's obligations under this section, however, shall extend to information that is required to be disclosed or released in connection with any judicial or administrative proceeding, providing that the disclosing party shall give the other party reasonable notice of its intention to disclose.

4. Customer Materials and Data.

a. Customer Materials. Customer agrees to provide xTuple with all information and Customer Materials reasonably requested by xTuple to enable xTuple to meet all obligations under this Agreement or any Supplemental Agreement. Customer represents and warrants that: (i) it is the owner, valid licensee, or authorized user (as applicable) of all Customer Materials that it will make available to xTuple in connection with performance of all obligations under this Agreement, and has the right to authorize xTuple to use it in all manners contemplated by this Agreement; (ii) it has obtained, if required, all necessary third-party consents and permission to make the Customer Materials available to xTuple; and (iii) use of the Customer Materials will not infringe, misappropriate, dilute, constitute unfair competition with respect to, or otherwise violate any third-party intellectual property, including without limitation, any trademark or copyright.. xTuple agrees that Customer shall retain all right, title and interest in and to the Customer Materials.

b. Customer Data. The following provisions cover the Customer Data entered by Customer and in the custody of xTuple:

(1) Customer must provide all data for use with all xTuple Products, and xTuple is not obliged to modify or add to Customer Data.

(2) Customer is solely responsible for the content and accuracy of the Customer Data. The Customer Data belongs to Customer, and xTuple makes no claim to any right of ownership in it.

(3) xTuple shall keep the Customer Data confidential in accordance with Section 3 of this Agreement.

(4) xTuple agrees to limit its use of the Customer Data to carry out its obligations under this Agreement, and for no other purpose. However, xTuple:

i. may observe and report back to Customer on Customer’s usage of the Products, and make recommendations for improved usage of the Products; and

ii. may identify trends and publish reports on its findings provided the reports include data aggregated from more than one customer site and do not identify Customer.

(5) Upon termination of this Agreement pursuant to Section 10, Customer is entitled to a plain-text export of the Customer Data, minus any business logic unique to commercially-licensed editions of the Software encapsulated in the database. Such an export requires a written request to xTuple prior to the effective date of termination.

(6) xTuple may erase Customer Data in xTuple’s custody after termination.

5. Compliance with laws; Privacy; Export

a. xTuple and Customer each will comply with all applicable laws and regulations (including applicable security breach notification law). However, xTuple is not responsible for compliance with any laws or regulations applicable to Customer or Customer’s industry that are not also generally applicable to information technology services providers located at the above xTuple address in the United States.

b. Customer consents to the processing of personal information by xTuple and its agents to facilitate the subject matter of this Agreement. Customer agrees to the xTuple Data Processing Addendum executed by the parties, which is hereby incorporated into this Agreement. Customer will obtain all required consents from third parties (including Customer’s contacts, resellers, distributors, administrators, and employees) under applicable privacy and data protection law before providing personal information to xTuple.

c. Personal information collected through Products and Professional Services (i) may be transferred, stored, and processed in the United States or any other country in which xTuple or its contractors maintain facilities; (ii) will be subject to any privacy terms specified in the Use Rights; and (iii) will be subject to the then current terms in the xTuple Privacy Policy.

d. Products, Fixes, and Services Deliverables are subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws, including the U.S. export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments related to xTuple products, services and technologies.

6. Disclaimer.

APART FROM THE REPRESENTATIONS, WARRANTIES, AND COVENANTS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY SUPPLEMENTAL AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ALL THE SUPPLEMENTAL AGREEMENTS) ARE PROVIDED "AS IS" AND "WITH ALL FAULTS", AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT REMAINS WITH CUSTOMER. NEITHER XTUPLE, NOR ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, REPRESENTATIVE, CONTRACTOR, CONSULTANT OR AFFILIATE OF XTUPLE, MAKES ANY OTHER WARRANTIES OR CONDITIONS, AND SUCH PERSONS HEREBY EXPRESSLY DISCLAIM, ANY OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING WARRANTIES OF QUALITY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT ANY OF THE PRODUCTS OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL FUNCTION UNINTERRUPTED OR BE ERROR FREE.

7. Indemnification.

Customer will defend, indemnify, and hold harmless xTuple and its respective officers, directors, employees, agents, representatives, contractors and consultants from and against any and all damages, costs (including reasonable attorney's fees and expenses), expenses and liabilities arising from claims of third parties as a result of Customer's unauthorized use and operation of the Software or Online Services or its breach of this Agreement (or any Supplemental Agreement), the Documentation, or any Use Rights, and for any third party claim that Customer Materials infringe or misappropriate such third party’s intellectual property.

8. Limitation of liability.

The total liability of xTuple, including its Affiliates and its contractors, for all claims arising under each Supplemental Agreement is limited to direct damages up to the following amounts:

a. for Software, the amount Customer was required to pay for the Software under the applicable Supplemental Agreement;

b. for Online Services, the amount Customer paid for the Online Service during the twelve (12) months before the cause of action arose; but in no event will a party’s aggregate liability for any Online Service exceed the total amount paid for that Online Service under the applicable Supplemental Agreement;

c. for Professional Services, the amount Customer was required to pay for the Professional Service giving rise to the liability; and

d. Other. In the case of any Software, previews, demonstrations, or Professional Services provided free of charge, xTuple’s liability is limited to direct damages up to $1000.

e. General. EXCEPT FOR A BREACH BY CUSTOMER OF (I) THE PROHIBITIONS OF SECTION 2 OF THIS AGREEMENT OR (II) THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION 3 OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, OR TO ANY PERSON, FIRM, OR CORPORATION, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. UNDER NO CIRCUMSTANCES SHALL XTUPLE’S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS LISTED IN THIS SECTION 8. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION TO DAMAGES FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST CUSTOMER BY ANY THIRD PERSON, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; (II) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY XTUPLE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND XTUPLE’S REASONABLE CONTROL; OR (III) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST XTUPLE MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE. THESE LIMITATIONS REPRESENT A FUNDAMENTAL TERM OF THIS AGREEMENT AND NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION.

9. Compliance.

a. Right to verify compliance with these terms. Customer must keep accurate and complete records relating to all use and distribution of Products by Customer and its Affiliates. xTuple has the right to verify Customer’s and its Affiliates’ compliance with the license or service terms for the Services, at xTuple’s expense.

b. Verification process and limitations. xTuple will provide Customer at least 30 days’ notice of its intent to verify compliance. Verification will take place in a manner that does not interfere unreasonably with Customer’s operations. xTuple may engage an independent auditor, which will be subject to a confidentiality obligation. Customer must promptly provide the auditor with any information the auditor reasonably requests in furtherance of the verification, including remote access to systems running the Services and evidence of the licenses for Services Customer hosts, sublicenses, or distributes to third parties. Customer agrees to complete xTuple’s self-audit process, which xTuple may require as an alternative to a third party audit. Any information collected in the self-audit will be used solely for purposes of determining compliance.

c. Remedies for non-compliance. If verification or self-audit reveals any unlicensed use or distribution, then within thirty (30) days, (i) Customer must order sufficient licenses to cover that use or distribution, and (ii) if unlicensed use or distribution is 5% or more, Customer must reimburse xTuple for the costs xTuple has incurred in verification and acquire the necessary additional licenses at 125% of the price, based on the then-current price list and Customer price level. The unlicensed use percentage is based on the total number of licenses purchased compared to actual install base. If there is no unlicensed use, xTuple will not undertake another verification of the same Customer for at least one year. By exercising the rights and procedures described above, xTuple does not waive its rights to enforce this Agreement or to protect its intellectual property by any other means permitted by law.

10. Term and termination.

a. Term. Survival. The term of this Agreement is as set forth in any Supplemental Agreement executed between the parties, with this Agreement to terminate or expire automatically upon the termination or expiration of the last of the Supplemental Agreements. Any right, obligation, or provision under this Agreement that, by its nature should survive termination or expiration of this Agreement, will survive expiration or termination of this Agreement.

b. Termination for cause. This Agreement shall terminate either (i) thirty (30) days (or fifteen (15) days in the case of non-payment) following issuance of a written notice by either party to the other of a material breach of the terms of this Agreement (or Supplemental Agreement) if the breaching party has not sooner cured such material breach; or (ii) immediately upon written notice issued by either party if the other party ceases to do business in the normal course, a petition for relief under any bankruptcy legislation is filed by or against the other party, the other party makes an assignment for the benefit of creditors, or a receiver is appointed for all or substantially all of the other party’s assets. For clarity, termination hereunder shall terminate all Supplemental Agreements.

11. Miscellaneous.

a. Notices. All notices contemplated by this Agreement will be in writing and delivered by certified mail, return receipt requested, by prepaid courier service, by overnight delivery with delivery confirmation, by telecopier with receipt confirmed by telephone, or by electronic transmission to the applicable address set forth on the cover sheet of this Agreement (unless another address is subsequently designated by notice to the other party). Notices shall be effective upon confirmed delivery.

b. Amendments; waiver. Any amendment or waiver must be in writing. No amendment, modification, rescission, termination, or discharge of this Agreement is effective unless it is in a writing referencing this Agreement and signed by an authorized representative of each party. This Agreement may not be modified, changed or terminated orally, and no representations or statements of any kind made by either party that are not expressly stated herein or in any written and validly executed amendment hereto shall be binding on such party. No failure to exercise, or delay in exercising, and rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Supplemental Agreements are intended to supplement, add to, or extend the terms and conditions of this Agreement, such as clarifying or adding to the scope of a defined term. In the event of an express conflict between this Agreement and a Supplemental Agreement, then the Supplemental Agreement shall govern over this Agreement for the subject matter of that Supplemental Agreement.

c. Assignment. The rights and obligations conferred by this Agreement are restricted to the discrete person or entity identified to xTuple as the Customer, and may not be shared among any expanded enterprise in which Customer operates. Customer may not assign or delegate such rights or obligations to any other person, firm, corporation or other entity without the written approval of xTuple. xTuple may use contractors to perform services hereunder, and may assign this Agreement and/or any of its rights or duties hereunder to any entity controlling, controlled by or under common control with xTuple or to another entity in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of xTuple. Any purported assignment, delegation, or transfer in violation of this section is void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

d. Applicable law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Virginia. Each party hereby irrevocably and unconditionally agrees to, and waives all objections to, the state and Federal courts located in Norfolk, Virginia for any and all disputes, actions, suits or proceedings it may bring rising out of or relating to this Agreement. In the event that any party institutes any legal suit, action, or proceeding against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys' fees and expenses and court costs.

e. Severability. If any provision of this Agreement is or becomes illegal, unenforceable, or invalid (in whole in or part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.

f. Third party beneficiaries. Nothing in this Agreement is intended to, or shall, create any third-party beneficiaries, whether intended or incidental, and neither party shall make any representations to the contrary.

g. Non-solicitation. During the term and for a period of two (2) years thereafter, Customer will not, directly or indirectly, solicit or hire away, or attempt to solicit or hire away, any person employed by xTuple with whom Customer had regular contact during the course of the provision of the Services, unless such person's employment with xTuple has been terminated for at least six (6) months. Notwithstanding the foregoing, nothing herein shall prevent Customer from considering for employment or hiring any individual, whether or not an employee of xTuple, who has responded to a general solicitation for employment from either party in a newspaper announcement or other public solicitation.

h. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement.

i. Force majeure. With the express exception of any payment obligations of Customer to xTuple, neither party will be liable to the other for any default or delay in the performance of any of its obligations under this Agreement if the default or delay is caused, directly or indirectly, by fire, flood, earthquake or other acts of God; labor disputes, strikes or lockouts; wars, rebellions or revolutions, riots or civil disorders; accidents or unavoidable casualties; interruptions in third party transportation or communications facilities or delays in transit or communications; supply shortages or the failure of any third party to perform any commitment to the party; or any other unforeseen cause, whether similar or dissimilar to those enumerated herein, beyond the party's reasonable control.

j. Non-agency. Nothing in this Agreement shall be construed to make the parties partners, joint ventures, representatives or agents of each other, nor shall either party so represent to any third person. The parties hereunder are acting in performance of this Agreement as independent contractors engaged in the operation of their own respective businesses. A party's employees, agents or representatives are not employees or agents of the other party and are not entitled to any of the other party's benefits. Neither party shall be responsible for payment of the other party's workers' compensation, disability benefits or unemployment insurance, nor shall it be responsible for withholding or paying employment related taxes for the other party or its employees.

Master Services Agreement

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xTuple Master Services Agreement

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