This Master Service Agreement (“Agreement”) is entered as of the date of last signature below 3/17/2020 (“Effective Date”), by and between Ocrolus, Inc. (“Ocrolus”) and the client reviewing and agreeing to this form and accessing Ocrolus’ system and services ("Client"). Client and Ocrolus may be referenced herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, the Client desires to obtain an efficient review of documents (including, but not limited to, financial documents such as bank and credit card statements) as may be specified on an Order Form (as defined below) from a variety of financial institutions (“Records”);
WHEREAS, Ocrolus has developed a cloud-based tool for parsing, searching, and summarizing financial data, mitigating the need for manual review of these Records by Client (the “Service” or the “Services”);
WHEREAS, Client wishes to use the Service for use in its business.
NOW THEREFORE, in consideration of the mutual promises made herein, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties agree as follows:
1. Order Forms, Services and Reports. Client and Ocrolus shall agree to the scope of Services for Record review on an Ocrolus order form (each, an “Order Form”). The Order Form shall set forth at a minimum the expected volume and pricing for the Services. Order Forms shall be subject to the terms and conditions of this Agreement. With the exception of terms relating to pricing and delivery contained in an applicable Order Form, the Parties understand, acknowledge and agree that in the event of any incongruity or conflict between the terms and conditions of this Agreement and any Order Form, the terms and conditions of this Agreement shall control. The Services shall generally include (x) Client transferring Records for review, (y) Ocrolus parsing such Records in accordance with the Order Form, and (z) Ocrolus producing reports as requested by Client based upon the data resulting from such parsing (each, a “Report”, and collectively the “Reports”).
2. Hours of Operations and Customer Service. Client understands and acknowledges that Ocrolus provides the Service 24/7, including during Ocrolus company holidays. Client further understands, acknowledges and expressly agrees that the turnaround time for the Services chosen in any Order Form, if any, is an expected review period. Ocrolus will in good faith attempt to meet any such turnaround time, however, Ocrolus makes no warranty, expressed or implied, that the Services will be complete within any such turnaround time. Ocrolus shall provide customer service and support to Client during the term of this Agreement, Monday through Friday, excluding Ocrolus company holidays, between the hours of 9:00 a.m.-6:00 p.m. U.S. Eastern Standard Time.
3. Access to Services and Restrictions. Client understands and acknowledges that means of accessing the Services shall either be through the Ocrolus web-app and/or integrating via API. Subject to the terms of this Agreement, Ocrolus grants Client a non-exclusive, world-wide, royalty free (other than fees included herein or on an Order Form), non-transferable license to access and use the Services solely for Client’s own purposes. Client grants Ocrolus a non-exclusive, world-wide, royalty-free, non-transferable license to use the Records and any other materials input or otherwise provided by Client pursuant to this Agreement. Client will be responsible for obtaining all rights, permissions, and authorizations, if any, from Client’s customers to provide the Records to Ocrolus. Except for the license granted in this section, nothing contained in this Agreement grants Ocrolus any right, title or interest in the Records. Except as expressly authorized by this Agreement, Client will not, and will not allow any end user under its employ to (i) permit any third party not under the control of Client to access or use the Services, (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, or (iii) use the Service to violate any applicable laws.
4. Exhaust Data. Notwithstanding the foregoing, Client agrees and acknowledges that Ocrolus may maintain certain de-identified information, anonymous data and analytics about Client’s use of the Services and the Records reviewing process (“Exhaust Data”). Client agrees that Ocrolus may (x) maintain Exhaust Data to monitor effectiveness of its Services and for improvement and development of new or additional services, and (y) owns all rights, title, and interest, including intellectual property rights, in and to Exhaust Data, and can retain use of such Exhaust Data after the expiration or termination of this Agreement for any purpose in its sole and absolute discretion. Notwithstanding the foregoing or anything contained in this Agreement, Ocrolus maintains the right to delete, purge or otherwise destroy any Records or any other data provided by Client to Ocrolus once the corresponding Report has been delivered to Client. This paragraph shall survive any expiration or termination of this Agreement.
5. Ownership of Reports. Upon completion of the Services and any analysis on any Records, the resulting Reports shall become the sole property of Client for use in any lawful past, present, or future use. This paragraph shall survive any expiration or termination of this Agreement.
6. Fees; Billing. Client shall receive an invoice upon the completion of Services or as specified in any applicable Order Form. Invoices shall be payable upon receipt, subject to a seven (7) day grace from the date of receipt. Notwithstanding the foregoing, if Client, acting in good faith, disputes the accuracy or all or part of any such invoice, Client shall notify Ocrolus within three (3) days of receipt of the invoice in question, including the specific item(s) in dispute and the reason for the dispute. Upon receipt of any such dispute by Ocrolus, Ocrolus and Client shall work in a commercially reasonable and expedited manner to resolve any such dispute. Client shall remain responsible for payment of any undisputed or resolved invoices in accordance with this section.
7. Credits. Any undisputed amounts due to Client from Ocrolus may be applied by Client, at the sole election of Client, against any current or future fees due to Ocrolus. This section shall survive the termination of this Agreement.
8. Suspension of Services. Ocrolus shall not suspend any part of the Service where: (a) Client is reasonably disputing any amount due to Ocrolus up to thirty (30) days from the date Ocrolus receive notice of the dispute in writing; or, (b) any unpaid but undisputed amount due to Ocrolus is less than fifteen (15) business days in arrears. Notwithstanding anything contained in this section, Ocrolus, in its sole and absolute discretion, may suspend services to Client if (a) Client’s dispute of amount due to Ocrolus has not been resolved within thirty (30) days of Ocrolus receiving written notice of the dispute and the justification therefore; or, (b) any undisputed amount due to Ocrolus is fifteen (15) days or more in arrears.
II. SERVICE PLANS; SERVICE LEVEL AGREEMENT
1. Ocrolus shall provide the services set forth in Section I above pursuant to the following services plans and subject to pricings set forth on the Order Form.
2. Free Trial. Services may be provided free of charge for the first 250 pages of Records reviewed by Ocrolus (the “Free Trial”). Such Free Trial, if applicable, is offered to new clients who have not previously used Ocrolus’ Services. The Free Trial shall expire automatically after the 250th page has been reviewed and thereafter the pricing for any additional services shall either be (x) as set forth in an Order Form, or (y) in the event an Order Form is not executed, consistent with a Default Service Plan. If an Order Form is executed, the expiration of the Free Trial shall not affect Client’s enrollment in the service plan previously chosen.
3. Default Service Plan. The “Default Service Plan” shall mean On Demand Service at a rate of $0.59 per page with a turnaround time of approximately 48-hours. Unless otherwise modified pursuant to a validly executed Order Form and subject to the Free Trial, Client agrees to the Default Service Plan shall apply.
4. Service Commitment. Ocrolus will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage (as defined below) of at least 99%, in each case during any monthly billing cycle (the “Service Commitment”).
5. Definitions. The following capitalized terms shall be given the meaning set forth below:
6. Service Commitment Exclusions. The Service Commitment does not apply to any unavailability, suspension or termination of the Services, or any other Ocrolus performance issues which may include those: (i) caused by factors outside of Ocrolus’ reasonable control, including, without limitation, any force majeure event or Internet access or related problems beyond the demarcation point of Ocrolus Services; (ii) that result from any actions or inactions of Client or any third party; (iii) that result from Client’s equipment, software or other technology and/or third party equipment, software or other technology; or (iv) arising from any suspension and termination of Client’s right to use the Services or any other Ocrolus system in connection with any breach by client of this Agreement or otherwise (collectively, the “Ocrolus SLA Exclusions”). If availability is impacted by factors other than those used in our Monthly Uptime Percentage calculation, then we may issue a Service Credit considering such factors at our reasonable discretion.
1. Either Party may terminate this Agreement at any time prior to the expiration of the then-current term by giving written notice. Such termination is effective thirty (30) calendar days after the date of such notice.
2. Upon any termination, Ocrolus shall provide Client with all applicable outstanding invoices and Reports within thirty (30) days from the date of effective notice of termination or expiration. Client shall make a final payment to Ocrolus for all obligations not previously paid for but still owed by Client within thirty (30) days from the receipt of the final invoice.
1. Definition of Confidential Information. Each Party hereto acknowledges that during term of the Agreement, the other Party may acquire, be exposed and have access to business, operational and technical materials, data and information of the other Party, its affiliates and their respective customers or clientele (“Confidential Information”) that are of a confidential, proprietary or personal nature. Notwithstanding the foregoing, Confidential Information shall not include any information, which is generally known to the public or to companies in businesses similar to the Client, or which later, through no act of Ocrolus or any other party to this Agreement, becomes generally known, or was already known by Ocrolus prior to any such information having been provided to Ocrolus. For the purposes of this Agreement Confidential Information shall not include Exhaust Data (as defined herein).
2. Commencing on the date hereof, and for an indefinite period thereafter, the Parties shall hold in confidence and shall not, directly or indirectly, disclose, divulge, reveal, report, reverse engineer, publish, transfer or otherwise communicate any Confidential Information collected, maintained, or used in the course of performance of the Agreement except as authorized by law and with the written notification to the other Party if required by law or compelled by court of competent jurisdiction, either during the term of the Agreement or thereafter. However, nothing contained herein shall (x) imply or cause Ocrolus to in fact maintain such Confidential Information or act in any data storage capacity for Client, or (y) limit either Party’s ability to delete, destroy or otherwise purge any Confidential Information.
3. In the event that a subpoena or other legal process is served upon a Party hereto for the Record(s) or Confidential Information, such Party shall promptly notify the other Party and cooperate in any lawful effort (at such other Party’s sole expense) to protect the Confidential Information requested. Either Party hereto shall, within a reasonably prompt time frame, report to the other Party by telephone and e-mail any unauthorized use or disclosure of such other Party’s Confidential Information once it becomes known.
4. Client agrees and acknowledges that Ocrolus may use Confidential Information including the Records or Reports for internal compliance and audit purposes to ensure performance and accuracy of Record review and may share the same with third-party’s engaged by Ocrolus for the purpose of conducting audits, accuracy reviews, or compliance reviews. Ocrolus agrees to use industry standard methods to anonymize Confidential Information used pursuant to this section whenever possible.
5. Client agrees and acknowledges that Confidential Information may be shared with crowd sourced third-party data verification contractors (“Crowd Reviewers”) who are employed by Ocrolus and subject to standard Ocrolus confidentiality provisions. Confidential Information shared with Crowd Reviewers shall be limited to sections of text or documents that may require human verification. Confidential Information shall be anonymized to the greatest extent possible while maintaining accuracy in review of Records.
6. All of confidentiality obligations under this Agreement shall survive the expiration and/or termination of the Agreement for so long as either Party maintains control or possession over any Confidential Information.
V. INFORMATION SECURITY
1. Information Security. Ocrolus maintains and enforces commercially reasonable practices, including administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Client data in alignment with requirements of applicable laws and regulations, as well as industry standards. This includes, but is not limited to, encryption of data in transit when submitted across the Internet, access controls, firewalls and user authentication protocols. The Internet, however, is not entirely secured, and Ocrolus will not be responsible for security incidents not reasonably within its control.
2. If required by applicable laws, Ocrolus will promptly report to Client, but in no event later than 48 hours after becoming aware, any unauthorized access to Client Data and, in the event that further notification is required by law, will support Client notification to its customers.
VI. INDEMNIFICATION AND LIABILITY
1. Client agrees to defend, indemnify and hold harmless Ocrolus, its parents and affiliates, from and against all liabilities, claims, damages and expenses (including reasonable attorney's fees and costs) arising from or otherwise related to (x) Client’s use of the Services, (y) breach or alleged breach of this Agreement, or (z) the copyright, trademark, proprietary, or other rights of any third parties including any customers of Client.
2. Ocrolus agrees to defend, indemnify and hold harmless the Client, its parents and affiliates (collectively the “Client Indemnified Parties”) against any third party liabilities, claims, demands, suits that arise from (x) the breach or alleged breach of this Agreement by Ocrolus, or (y) the use of the Services as authorized in this Agreement which misappropriates or infringes a patent, copyright, or trademark in any of the jurisdictions within which the Services are provided, provided that in the case of (y) Ocrolus receives (i) prompt notice in writing of such claim; (ii) sole control over the defense and settlement thereof; and (iii) reasonable cooperation from Client Indemnified Parties, as applicable, in response to a Ocrolus request for assistance. Should any Services become, or in Ocrolus’s opinion be likely to become, the subject of such a claim, Ocrolus shall at its option, (a) procure for the Client Indemnified Parties the right to make continued use thereof in accordance with this Agreement; (b) replace or modify the affected Services so that they become non-infringing but with substantially equivalent functionality and performance; or (c) if neither (a) nor (b) are reasonably available, terminate this Agreement. Ocrolus shall have no liability or indemnification obligations hereunder based on (1) use for a purpose or in a manner for which the Services was not designed; (2) use of any older version of Services software when use of a newer revision was made available by Ocrolus to Client; or (3) any use of the Services in breach of this Agreement.
3. In no event shall either Party be liable to the other for consequential, incidental, indirect, punitive or special damages (including loss of profits, data, business or goodwill), from all causes of action of any kind, including any action sounding in contract, tort, breach of warranty, or otherwise. It is further agreed that each Party’s aggregate liability for direct damages hereunder shall not exceed the total amount of service fees paid or received by the respective Party in the one-year period preceding the date upon which any such claim first accrued.
1. Client Warranty. During the Term of this Agreement Client represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement, (b) any Client data or Confidential Information provided by Client to Ocrolus for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection) (collectively, “Applicable Law”); and (c) its use of the Services will be in compliance with all Applicable Law.
2. Ocrolus Warranty. During the Term of this Agreement Ocrolus represents and warrants (i) the Services will substantially comply with any Order Form and this Agreement, (ii) it shall use commercially reasonable efforts to provide the Services in a professional and workmanlike manner, and (iii) it shall comply with Applicable Law in performing this Agreement. In the event of a breach of this section, Ocrolus’s sole and exclusive liability and Client’s sole and exclusive remedy will be to perform any defective Service again.
3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION VII(2) ABOVE (THE OCROLUS WARRANTY), THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND. OCROLUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OCROLUS OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OF ANY KIND OR IN ANY WAY INCREASE THE SCOPE OF OCROLUS’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CLIENT ACKNOWLEDGES AND AGREES THAT OCROLUS DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CLIENT’S DATA, WEB‑SITES, COMPUTERS, OR NETWORKS. OCROLUS WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CLIENT IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA AND ANY RECORDS.
VIII. GENERAL PROVISIONS
1. Entire Agreement. This Agreement contains the entire agreement and understanding among the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, representations, arrangements or understandings, whether written or oral, with respect to such subject matter hereof.
2. Binding Effect and Assignment. Except as otherwise expressly provided in this Agreement, this Agreement will be binding on, and will inure to the benefit of, the successors and permitted assigns of the Parties to this Agreement. Ocrolus may assign this Agreement to a successor entity in the event of a merger, acquisition or sale of all or substantially all of its assets. Nothing in this Agreement is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights or obligations under or by reason of this Agreement, except as expressly provided in this Agreement.
3. Amendment; Waiver. This Agreement may be amended only by a written agreement expressly referring to this Agreement and executed by the Parties hereto. No provision of this Agreement may be waived except by a written document executed by the Party entitled to the benefits of the provision. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement. A waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver. No delay or omission by either Party hereto in exercising any right, power or privilege hereunder shall impair such right, power or privilege, nor shall any single or partial exercise of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege.
4. Independent Contractor Status. Ocrolus shall act as an independent contractor of Client. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship. Ocrolus shall have no authority to act as agent for, or on behalf of, Client, or to represent the Client, or bind the Client in any manner. Ocrolus shall not be entitled to worker's compensation, retirement, insurance or other benefits afforded to employees of the Client Ocrolus shall be responsible for all items of taxation associated with furnishing of the Services. Client shall not be responsible for any taxes attributable to Ocrolus including, without limitation, any taxes payable for net income or receipts, payroll tax, withholding tax, or such other taxes based on Ocrolus doing business in any particular jurisdiction. Notwithstanding anything to the contrary herein, Client to the extent provided by law to pay all applicable sales taxes for Services.
5. Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise:
6. Notices. All notices hereunder shall be made in writing and delivered via registered or certified mail, postage prepaid, addressed to the recipient Party at his, her or its respective address contained herein (or such other address provided to the such Party in writing). Notices will be deemed received by the receiving Party within five (5) days of mailing, if mailed; within twenty-four (24) hours of sending, if sent by nationally recognized overnight courier service (e.g. UPS, FedEx, DHL); when actually delivered by hand, if so delivered.
7. No Responsibility for Force Majeure Loss. Neither Party is responsible for any damage resulting from force majeure events beyond the control of the Parties or their respective employees, including but not limited to wars, riots, natural disasters, and other extreme events over which the Parties have no control.
8. Choice of Law and Venue; Jury Trial Waiver. The Parties expressly agree that all the terms and provisions hereof shall be constructed under the internal laws of the State of New York without regard such state’s conflict of laws or choice of law rules and principles. Each of the Parties hereby irrevocably consents that any action or proceeding relating to this Agreement shall be exclusively brought, at the option of the party instituting the action or proceeding, in any state court of general jurisdiction in the State of New York, County New York. Each of the Parties waives any objection that it may have to the conduct of any action or proceeding in any such court based on improper venue or forum non convenient, waives personal service of any and all process upon it, and consents that all service of process may be made by certified mail or nationally recognized courier service (e.g. FedEx, UPS, DHL) directed to it at the address set forth herein and that service so made shall be deemed to be completed upon the earlier of actual receipt or five (5) days after the same shall have been posted. Client hereby consents to the personal and subject matter jurisdiction of these courts for the purpose of adjudicating any claims subject to this forum selection clause. Nothing contained in this section shall affect the right of any Party hereto to serve legal process in any other manner permitted by law. In any action or proceeding commenced in connection with this Agreement the Parties hereto expressly and IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY.
9. Costs of Enforcement; Attorney’s Fees. In the event of any litigation, arbitration or other dispute arising as a result of, in connection with or by reason of this Agreement, the substantially prevailing Party in any such litigation, arbitration or other dispute shall be entitled to receive reimbursement and payment of all costs and expenses incurred in connection with settling or resolving such dispute including, without limitation, his, her or its reasonable attorneys’ fees.
10. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without such provision, and this Agreement shall be construed to the fullest extent possible as to give effect to the intentions of the provisions found to be unenforceable or invalid. The Parties agree that such court may reform such provisions so that it is reasonable under the circumstances and that such provision, as reformed, shall be enforceable, except that the material intent of the Parties in entering into this Agreement shall not be defeated or rendered impossible by the removal of such provision from this Agreement.
11. Surviving Provisions. Any of the provisions herein which expressly or impliedly by their nature should survive the termination of this Agreement shall so survive.
12. Further Actions; Recordation. Each Party hereto and his, her or its permitted assigns or transferees agree to execute, acknowledge and deliver such additional documents, and take such further actions as may be required, from time to time, to carry out each of the provisions and the intent of this Agreement, and every agreement or document relating thereto, or entered into connection herewith.
13. Authority. The individuals executing this Agreement on behalf of Client and Ocrolus, respectively, represent that they are duly authorized to execute this Agreement and bind their respective organizations to it.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, shall be deemed to constitute one and the same document. This Agreement may be executed and delivered by customary or other commercially acceptable electronic means (including any electronic signature complying with the U.S. federal ESIGN Act of 2000 e.g. DocuSign or similar service); a manual signature affixed to this Agreement whose image shall have been transmitted via facsimile, e-mail or other customary electronic means shall have the same force and effect as original ink signature for all purposes.