Master Services Agreement

This MASTER SERVICES AGREEMENT (the “Agreement”) is made and entered into by and between NEEDLE, INC. (“Needle”, “we”, or “us”) and the client (the “Client” or “you”) listed on any applicable service order form (“Service Order Form”, “Service Order”, or “Order Form”) as of the effective date (the “Effective Date”) of the applicable Service Order Form.

The Client accepts this Agreement and agrees to the terms of this Agreement by using the Service, clicking a box indicating acceptance, or by manually or electronically executing or accepting a Service Order Form that references this agreement. If you are entering into the terms of this Agreement on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.

Needle may modify the terms of this Agreement at any time. Any changes to this Agreement are effectively immediately upon posting on the Needle website, and the Client agrees to the revised terms by continuing the use of the Service.

In consideration of receiving payment from Client for the Services (defined below) to be performed by Needle and the mutual covenants set forth herein, Client and Needle agree as follows:

1. DEFINITIONS.

Capitalized terms used in this Agreement have the respective meanings given to them in this Agreement, including as follows:

“Client Data” means any data, information or material provided or submitted by Client to the Service in the course of using the Service.

“Content” means the audio and visual information, documents, software, interaction dialogues, customer information, statistics, products and services contained or made available to Client in the course of using the Service.

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“Needle Technology” means all of Needle’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, inventions and other tangible or intangible technical material or information) relating to the Service as describe herein.

“Service Order Form(s)” means a Service Order Form signed by Needle and Client that identifies the Service contracted for, the applicable fees, the billing period, the Services’ warranty specifications, any liquidated remedies, the termination rights and other charges as agreed to between the parties, each such Service Order Form to be incorporated into and to become a part of this Agreement.

“Site Data” means all data collected by either the Client or Needle in the course of operating the Services and may include information gathered about a visitor’s interaction with the Client’s website, Client Data, interaction content, visitor’s interaction with the Needle Technology, visitor interaction with Content and other data and statistical information about visits.

“User(s)” mean Client’s employees, representatives, consultants, contractors or agents who are authorized by Client to use the Service and have been supplied user identifications and passwords by Needle or Client at Client’s request.

2. SERVICE.

Subject to the terms set forth herein, Needle will provide hosted advocate-customer real-time interaction (via chat) service, or other live interaction services utilizing the Needle contracted remote-based agent network (“Advocates”), for the Client programs, products or services marketed or advertised to third party consumers (“Consumers”) as described in a Service Order Form, that are developed, operated, and maintained by Needle, accessible via any website or IP address, or ancillary online or offline products and services provided to Client by Needle, to which Client is being granted access under this Agreement, including the Needle Technology and the Content (the “Service”).

3. TERM AND TERMINATION.

This Agreement will be effective as of the Effective Date of any Service Order Form and continue in effect for the duration of any Service Order Form. In the event of any breach of this Agreement by either party, the non-breaching party shall have the right to terminate the Agreement or the applicable Service Order Form to the Agreement for cause if such breach has not been cured within ten days of written notice from the non-breaching party specifying the breach in detail. In addition, Needle may terminate this Agreement and suspend or discontinue service at Needles’ option at any time if (a) Client has not paid all amounts invoiced to it by Needle within seven (7) days after the date on which it became due (including payments less than in full, unless disputed in good faith), or (b) Needle determines that Client does not meet the then current Needle credit requirements, or (c) Client engages in unauthorized use of the Needle Technology or Service. Needle may terminate any free or trial account at any time at its sole discretion. Client agrees and acknowledges that Needle may delete Client Data, if Client has materially breached this Agreement and such breach has not been cured within 30 days of written notice of such breach to Client; provided that Needle shall not delete any such data until at least 30 days after notice of its intent to delete has been provided to Client and Client has not notified Needle that it wishes to take transfer of such Client Data. The terms that, by their sense and context, are intended to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.

4. FEES AND INVOICING.

Fees for all Services will be charged in accordance with the applicable Service Order Form. Needle’s fees shall be stated and paid in U.S. dollars and are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Needle’s income. If Client believes its bill is incorrect, Client must pay any undisputed portion of any such invoice and must contact Needle in writing within 30 days of the date on which Client receives the invoice containing the amount in question to be eligible to receive an adjustment or credit; provided that, if Client is not in a position to discover the incorrectness of an invoice, such time period shall be tolled until such date as client is in a position to discover such incorrectness. Needle will provide backup documentation for the disputed charges within 10 business days of receipt of Client’s written notice. If the parties agree a correction to the invoice is required, Client shall not be obligated to pay the disputed amount of the invoice until it is corrected or resolved as shown on a corrected invoice. During any such efforts to resolve disputed invoices, all terms and conditions of this Agreement will remain in full force and effect, and Needle will continue to discharge its duties without delay.

If Client issues a purchase order (a “Client PO”), all Client POs shall be governed by this Agreement and the applicable Service Order Form. The terms of this Agreement and each Service Order Form shall supersede the terms of any Client PO and any other documentation issued by either party, and any conflicting terms in a Client PO or any other such documentation shall be null and void. All invoices are due within 14 days of the date on which Client receives such invoice. All payments shall be made out to “Needle, Inc.” and remitted by electronic transfer as outlined on the appropriate invoice.

5. SERVICE WARRANTY.

Needle warrants that it will provide the Service in a manner consistent with generally accepted industry standards (“Service Warranty”) for thirty days from any day’s performance of the Service (“Warranty Period”). Client must notify Needle in writing of any breach of the foregoing warranty in accordance with the Notice provisions set forth in this Agreement during the Warranty Period. Upon written notice, Needle shall make all reasonable efforts to cure the nonconformity and if Needle cannot cure the nonconforming Service within a reasonable time considering the severity of the identified breach, Client may terminate the Agreement or the applicable Order Form under which the breach occurred. The foregoing is Client’s exclusive remedy and Needles’ entire liability for breach of the Service Warranty. OTHER THAN AS SET FORTH HEREIN, NEEDLE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, QUALITY OF SERVICE, TITLE, AND FITNESS FOR A PARTICULAR USE, OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.

6. LIMITATION OF LIABILITY.

In no event shall the aggregate and cumulative liability of either party exceed the total amounts actually paid by and/or due from Client in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party be liable to anyone for any incidental, indirect, punitive, special or consequential damages of any kind including, but not limited to, any loss of use, loss of business, or loss of profit, and regardless of the form of the action, whether in contract, warranty, strict liability or tort, including without limitation, negligence of any kind, and regardless whether either party was advised, had reason to know, or in fact knew of the possibility of liability. The foregoing limitation of liability set forth in this Section 6 shall not apply in the event of either party’s breach of Section 7 below, or to either party’s indemnity obligations set forth in Section 8 below.

7. CONFIDENTIALITY.

(i) Needle’s “Confidential Information” means the Needle Technology, the pricing, terms and conditions of agreements with customers, any Needle materials available to Client that are designated as “confidential,” “proprietary” or some similar designation or that should reasonably be understood by Client as being confidential.

(ii) Client’s “Confidential Information” means (a) any Client materials available to Needle that are designated as “confidential,” “proprietary” or some similar designation or that should reasonably be understood by Needle as being confidential or proprietary and (b) any Client materials contributed to the Client’s website or to the effort undertaken by the parties pursuant to this Agreement and designated as “confidential,” “proprietary” or some similar designation that should reasonably be understood by Needle as being confidential.

(iii) Each party shall hold the other party’s Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as permitted under this Agreement. Each party agrees to treat all Confidential Information of the other party in the same manner as it treats its own proprietary information, but in no case will the degree of care for treating such information be less than reasonable care. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the Confidential Information. Upon termination of this Agreement or the request of the party that disclosed the Confidential Information, each party shall return all tangible copies of any Confidential Information to the disclosing party.

(iv) Confidential Information shall not include information that the receiving party can prove (a) was generally available to the public at the time it received the information from the disclosing party, (b) was known to it, without restriction, at the time of disclosure by the disclosing party; provided that all Confidential Information disclosed by any party in connection with the negotiation, execution or delivery of this Agreement shall be subject to the confidentiality and non-use provisions in this Section 7, (c) is disclosed with the prior written approval of the disclosing party, (d) was independently developed by it without any use of the other party’s Confidential Information, (e) becomes known to it without restriction from a source other than the disclosing party without a duty of confidentiality to the disclosing party or (f) is disclosed in response to an order or requirement of a court, administrative agency, or other governmental body; provided, however, that, where practicable, (1) the receiving party must provide prompt advance notice of the proposed disclosure to the disclosing party and (2) any Confidential Information so disclosed shall otherwise remain subject to the provisions of this Section 7.

In addition, if Client recommends to Needle additional features, functionality, or performance or if Needle retains generalized information hereunder that Needle subsequently incorporates into its product or service offerings, then with respect to such recommendations and information, Client hereby (i) grants Needle a worldwide, non-exclusive, royalty-free, perpetual right and license to use and incorporate such recommendations and such information into such offerings, and (ii) acknowledges that all right and title to such offerings incorporating such recommendations and information shall be the sole and exclusive property of Needle and all such recommendations and information shall be free from any confidentiality restrictions that might be imposed upon Needle pursuant to this Section 7. In addition to the foregoing, Needle shall not, during the term of this Agreement and for one year thereafter, without the prior written consent of the Client, knowingly provide any other Needle client with access to the training and development tools developed by or for the Client.

This Section 7 shall not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “responding party”) shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for disclosure; and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. Notwithstanding the foregoing obligation of the responding party, nothing in this Section 7 shall limit or restrict the ability of the other party to act on its own behalf and at its own expense to prevent or limit the required disclosure of Confidential Information. The Confidential Information disclosed by either party constitutes the confidential and proprietary information of the disclosing party and the receiving party shall retain such Confidential Information in strict confidence and not disclose to any third party (except as authorized under the Agreement) or use for any purpose other than its performance under this Agreement without the disclosing party’s prior written consent. Notwithstanding anything herein, Needle may use all data generated by interactions solely internally and solely in the aggregate to operate, improve or test its services and systems. In the event of breach of any of the provisions of this Section 7, the non-breaching party shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief.

8. INDEMNIFICATION.

To the extent that a third party makes a claim against Needle, its officers, directors, employees, or agents (i) that any materials provided by Client to Needle in the course of performing the Service or any use thereof directly infringe the rights of, or has caused harm to a third party, or (ii) in connection with any actions taken by an indemnified party as identified in this subparagraph in accordance with Client’s instructions, or (iii) in connection with Client’s products, services or the promotion of such products or services, or (iv) a violation of law related to Client’s products or service, including claims or inquiries by Consumers or governmental inquiries regarding such products or services of Client, Client will (a) defend Needle against the claim at Client’s cost and expense, and (b) pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Needle by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Client arising out of such claim.

Subject to Section 7, to the extent that a third party makes a claim against Client, its officers, directors, employees or agents that arises out of a violation by Needle of any U.S. consumer protection law or U.S. privacy law solely in connection with Needles’ performance under the Agreement, Needle will (a) defend Client against the claim at Needles’ cost and expense, and (b) pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Client by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Needle arising out of such claim.

This Section 8 states the indemnifying party’s entire liability and the indemnified party’s exclusive remedy for any claim set forth in this Section. The foregoing indemnities are conditioned on the indemnified party (i) promptly giving written notice of the claim to the indemnifying party; (ii) giving the indemnifying party sole control of the defense and related settlement negotiations; (iii) providing to the indemnifying party, at such party’s request and expense, all reasonable information and assistance necessary to perform its obligations under this paragraph.

9. INDEPENDENT CONTRACTORS.

Client and Needle shall at all times be independent contractors, and nothing contained in this Agreement shall create or be construed as creating a partnership, joint venture, agency, or employment relationship between the parties hereto. Except as expressly contemplated by the terms of the Agreement or applicable law, neither party shall (i) have the authority to create any contract or obligation binding on the other party, or (ii) be liable for any expenses, liabilities, or other obligations incurred by the other, including without limitation by Needle with respect to any subcontractor or Advocate engaged by Needle.

10. INTERNET DELAYS.

NEEDLE’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NEEDLE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE TO THE EXTENT RESULTING FROM SUCH PROBLEMS, EXCEPT TO THE EXTENT CAUSED BY, OR THE FAULT OF, NEEDLE AND/OR ANY PERSON OR ENTITY UNDER ITS DIRECTION OR CONTROL.

11. RESTRICTED USE.

Client shall not permit any third party (excepting, for the avoidance of doubt, all Users) to access the Service for any reason other than those contemplated by the terms of this Agreement, including by promoting use of the Service by Client’s potential customers to the extent that members of the general public may use the Service on the Client’s website(s). Client may access the Service for reasonable business purposes as intended by the “Service” in this Agreement or the applicable Service Order Form , but Client may not in any event access the Service (i) for monitoring its availability, performance or functionality solely for any competitive purposes, (ii) to decompile, reverse engineer, disassemble, modify, sell, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) from the Service or any portion thereof, (iii) to use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the express terms of this Agreement, (iv) to use or export the Needle Technology in violation of applicable U.S. laws or regulations, or (v) to sell, lease, loan, distribute, transfer, or sublicense the Service or access thereto, except to the extent permitted by the express terms of this Agreement.

12. ACCOUNT INFORMATION, DATA AND CONTENT.

Client shall (i) immediately notify Needle in the event that Client becomes aware of any material violation of the terms of the Agreement or any Service Order Form and (ii) use its commercially reasonable efforts to protect the confidentiality of all account information, including User names, payment information and passwords. Client shall use its commercially reasonable efforts to require Users to comply with the covenants applicable to Client in the foregoing sentence. Client shall use its commercially reasonable efforts to require that (a) if a User becomes aware that the security of such User’s login information has been breached, the User shall immediately notify Client and Client shall immediately de-activate such account or change the account’s login information and (b) each User shall similarly provide prompt notice to Client (and Client shall provide prompt notice to Needle) of any breach of confidentiality of any confidential customer information and Client shall take all reasonably required and appropriate action to remediate any such breach in a timely fashion, except in either case if any such breach is caused by any act or omission of Needle or any person or entity under its direction or control.

Needle does not own any Client Data, but shall have access to such Client Data to the extent it is a part of the Site Data, and Needle shall have the right to use all Site Data for Needle’s business purposes, including the right to research, review, aggregate, analyze, store, copy, publish, commercialize and exploit non-personally recognizable Site Data; provided however, that such actions shall not be in breach of Needle’s obligations to maintain the confidentiality of Client’s Confidential Information. Needle’s rights to use Site Data as set forth in this paragraph shall continue indefinitely notwithstanding the termination of this Agreement. Client, not Needle, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Client Data (in the form provided by Client). Client acknowledges that during Client’s use of the Service, Client has full access and privileges to download a copy of Site Data without any assistance by Needle. Upon termination of this Agreement for breach, but only after Needle provides Client at least 30 days’ prior notice of its intent to delete or cease to maintain any Site Data or Client Data, Client’s right to access or use any Site Data that is not Client Data, or through the Service any Client Data, immediately ceases, and Needle shall have no obligation to maintain or forward any Site Data or Client Data. Notwithstanding anything contained herein to the contrary, but provided that Needle provides Client at least 30 days’ prior notice of its intent to delete or cease to maintain any Site Data or Client Data and that no dispute exists in connection with this Agreement or the parties’ relationship, Needle may permanently delete any Site Data or Client Data after 30 days of any expiration or termination of this Agreement.

13. INTELLECTUAL PROPERTY OWNERSHIP.

(i) Needle alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Needle Technology, the Content and the Service. Subject to Section 7, Client hereby grants to Needle a fully paid up, irrevocable, worldwide license to use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client relating to the Service, subject to the rights of any third parties in any such matters and with the understanding that all such feedback is provided “AS IS” and “WITH ALL FAULTS.” This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service, Content, the Needle Technology or the Intellectual Property Rights owned by Needle. All of Needle’s Intellectual Property Rights, including the Needle name, the names of its products and services, Needle’s logos and trademarks, and the copyright to Needle’s software, marketing materials and aspects of its Service that are displayed on websites are the Intellectual Property Rights of Needle or third parties, and no right or license is granted to Client to use them except as expressly contemplated by this Agreement.

(ii) Needle acknowledges that all of Client’s intellectual property, including patents, trademarks, copyrights, know-how, ideas, concepts, techniques, methodologies, software applications, databases, reports, computer programs (e.g., any source code, object code and executable code), algorithms, systems, methods and other creative content shall remain the sole and exclusive property of Client, as applicable.

14. INSURANCE.

During the term of this Agreement, Needle will maintain policies of insurance in the following types and amounts:
(i) Commercial General Liability Insurance in an amount not less than $2,000,000 protecting Needle and Client from any and all claims for damages due to bodily injury (including death), personal injury, or property damage alleged to have been caused by the negligent acts of Needle or any employee or agent of Needle.

(ii) Workers’ compensation insurance in an amount not less than the statutory limits for the states in which the Services are to be performed; and;

(iii) Automobile liability insurance (including owned, non-owned, and hired vehicles) with minimum limits of not less than $1,000,000 per occurrence combined single limit for personal injury and property damage.
On or immediately after the Effective Date, Client may request in writing one or more certificates evidencing such insurance.

15. MISCELLANEOUS.

This Agreement, including any Order Forms, constitutes the complete Agreement and supersedes any previous agreements or understanding between or among the parties signing hereunder. The Agreement may only be amended or modified in a writing signed by authorized representatives of the parties.

A. All notices required hereunder shall be in writing and shall be deemed duly given, if sent by registered or certified mail, return receipt requested to the addresses set forth below, or to such other addresses as either party may designate from time to time by written notice to the other party hereto.

1. If to Needle:

ATTN: General Counsel

Needle, Inc.
14864 Pony Express Road
Bluffdale, UT 84065

With copy to: Director of Finance

B. Either party may assign this Agreement to any affiliate or to the surviving entity in connection with a merger or sale of all or substantially all of a party’s assets without the consent of the other party. Except as set forth in the preceding sentence, neither party may assign this Agreement without the prior written consent of the other party, which consent will not unreasonably be withheld or delayed. Needle may withhold its consent, and any purported assignment by Client shall be void, in the event that the assignee does not meet Needles’ then-current credit requirements. Client agrees that all open invoices shall be paid prior to any consent by Needle for an assignment of this Agreement. The Agreement shall be binding upon, and shall inure to the benefit of, the parties’ respective successors and permitted assigns.

C. The waiver by either party hereto of any breach of this Agreement by the other shall not be deemed to be a waiver of any other breach thereof.

D. This Agreement is not a joint venture or partnership, and each party is entering the relationship as a principal and not as an agent of the other, except that in providing the Service, Needles’ actions in regards to Consumers shall be solely that of an agent of Client for which Client shall remain entirely responsible. Needle shall have no obligations to Consumers.

E. Needle shall not be liable to Client or to Consumers or any Users of the Service for any nonperformance or delay in performance of any of the requirements or obligations of this Agreement, either from Client or its Consumer or Users of the Service or any other third party, to the extent that a party is prevented from performing any obligation hereunder, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communications line failures, and power failures.

F. If any portion of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. The following Sections shall survive termination of the Agreement: 4, 6, 7, and 8.

G. The captions and headings in this Agreement are strictly for convenience and shall not be considered in any interpretation or construction. Plural includes the singular and vice versa unless the context clearly indicates otherwise. The parties agree that the Agreement will be construed neither against nor in favor of either, but rather in accordance with its fair meaning.

H. Any legal action or proceeding with respect to the Agreement and any action for enforcement of any judgment in respect thereof shall be brought in a state or federal court sitting in the County of Salt Lake in the State of Utah, and, by execution and delivery of this Agreement, each party hereby accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts and appellate courts from any breach thereof. Each party irrevocably consents to the service of process for actions or proceedings arising out of this Agreement from of any of the aforementioned courts by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.

I. This Agreement shall be construed in accordance with the laws of the State of Utah without regard to its conflicts of law provisions.

J. This Agreement may be executed by facsimile and in any number of counterparts, each of which is to be deemed an original and all of which together constitute one and the same instrument.

K. The Agreement is effective as of the Effective Date. As referenced above, the Effective Date of this Agreement is the date that the Agreement has been duly executed by both parties as evidenced by signatures affixed hereto. In the event Client duly executes the Agreement by affixing its signature below but fails to date such signature, then the date that Needle receives the executed Agreement from Client shall be deemed to be the date the Agreement has been duly executed by Client. In such case, Needle shall be authorized to enter the date of receipt as the date of Client’s signature.

These terms were last updated on December 20, 2016.