MASTER SERVICES AGREEMENT
This Master Services Agreement (this “MSA”) governs access to and use of the FixedOps Innovations products and services made available by FixedOps Innovations, LLC (“FixedOps Innovations”) to the client entity that executes an activation agreement with FixedOps Innovations (each, an “Activation Agreement”), together with its participating subsidiaries, affiliates, Authorized Locations, and other covered operations listed in the applicable Activation Agreement (collectively, “Client”). This MSA is incorporated into and made part of each Activation Agreement between FixedOps Innovations and Client.
1. Services.
“Services” means the FixedOps Innovations products and services that are made available to Client by FixedOps Innovations under this MSA and the applicable Activation Agreement. Subject to this MSA and the applicable Activation Agreement, FixedOps Innovations will make the Services available to Client for the applicable Service Period. FixedOps Innovations will provide the Services in accordance with the Service Level Agreements available at www.fixedopsinnovations.com/sla. FixedOps Innovations will provide support for the Services in accordance with the Support Policy available at www.fixedopsinnovations.com/support.
2. Client Responsibilities.
Client is responsible for: (a) maintaining the systems, access, configurations, and cooperation required to use the Services as described in the Deployment Guide; (b) the accuracy, completeness, and legality of Client Data and Customer Information made available to FixedOps Innovations; (c) Client’s business operations, services, orders, invoices, workflows, compliance obligations, customer communications, and related business transactions; (d) compliance with laws, regulations, and obligations applicable to Client’s business; and (e) all acts and omissions of Authorized Users in connection with the Services.
3. Term and Termination.
3.1. Term and Renewal.
3.1.1. MSA.
This MSA commences on the effective date of the first Activation Agreement between FixedOps Innovations and Client (the “Effective Date”) and will remain in effect until all Activation Agreements have expired or been terminated in accordance with this Section 3.
3.1.2. Activation Agreement.
The service period for each Activation Agreement shall be set forth therein (the “Service Period”); provided that if the Activation Agreement does not specify a Service Period, the Service Period will be one (1) year. Unless otherwise expressly stated in the applicable Activation Agreement, upon expiration of the Service Period, the Services will automatically renew for successive one- (1) year Service Periods unless Client provides FixedOps Innovations with notice of termination at least sixty (60) days prior to the end of the then-current Service Period.
3.2. Termination for Cause.
A Party may terminate this MSA or an Activation Agreement for cause: (a) upon written notice to the other Party of a material breach if such breach remains uncured after thirty (30) days from the date of the breaching Party’s receipt of such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors that is not dismissed within sixty (60) days of the commencement thereof; or (c) immediately by FixedOps Innovations if Client violates Section 4.5 (Prohibited Uses) of this MSA or materially interferes with FixedOps Innovations’s ability to provide the Services.
3.3. Effect of Termination and Survival.
Termination of this MSA will concurrently terminate all active Activation Agreements. Upon termination of this MSA and/or an Activation Agreement, Client will have no further right to use the Services under the terminated Activation Agreement(s), and FixedOps Innovations may remove Client’s access to the same. The following Sections will survive termination: Section 3.3 (Effect of Termination and Survival), Section 4 (Ownership, License, and Use of the Services), Section 5 (Confidentiality), Section 7.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of this MSA will not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this MSA.
4. Ownership, License, and Use of the Services.
4.1. Ownership.
As between the Parties, FixedOps Innovations owns and retains all right, title, and interest in and to the Services, software, documentation, technology, trade secrets, workflows, processes, templates, reports, tools, know-how, Usage Data, and all improvements, enhancements, modifications, derivatives, and intellectual property rights related to the foregoing. As between the Parties, Client owns and retains all right, title, and interest in and to Client Data and Customer Information. No rights are granted except as expressly set forth in this MSA or the applicable Activation Agreement.
4.2. Feedback.
Client or its Authorized Users may provide suggestions, comments, ideas, enhancement requests, recommendations, or other feedback regarding the Services (“Feedback”). FixedOps Innovations may use, disclose, reproduce, license, distribute, and otherwise exploit Feedback without restriction or obligation to Client, provided that FixedOps Innovations does not disclose Client’s Confidential Information in doing so. FixedOps Innovations owns any improvements, enhancements, modifications, derivatives, or developments made to the Services based on or incorporating Feedback.
4.3. Licenses.
Subject to this MSA and the applicable Activation Agreement, FixedOps Innovations grants Client a limited, non-exclusive, non-transferable, non-sublicensable right during the applicable Service Period to access and use the Services, and to permit its Authorized Users to access and use the Services, solely for Client’s internal business operations and the purposes authorized under the applicable Activation Agreement.
Client grants FixedOps Innovations a limited, non-exclusive right to access, receive, process, use, transmit, store, and disclose Client Data and Customer Information solely as necessary to provide the Services to Client and as otherwise permitted under this MSA, the applicable Activation Agreement, and the Data Processing and Security Addendum.
Notwithstanding anything to the contrary, FixedOps Innovations may generate, collect, use, and analyze usage data generated or derived from Client’s use of the Services (“Usage Data”), including log data and metadata, to develop, improve, support, secure, and operate its products and services; provided that Usage Data may only be shared with third parties in a manner that is aggregated and/or anonymized and does not identify Client, any Authorized Location, Authorized User, or Client customer.
4.4. Authorized Users.
“Authorized Users” means Client’s employees, contractors, agents, third-party administrators, service providers, vendors, representatives, and other individuals or entities authorized by Client to access or use the Services on Client’s behalf or in connection with Client’s use of the Services. Client is responsible for all acts and omissions of its Authorized Users in connection with the Services as if they were Client’s own acts and omissions. Client will ensure that all Authorized Users comply with this MSA, the applicable Activation Agreement, and any applicable policies, guides, or documentation referenced therein.
4.5. Prohibited Uses.
Client will not, and will not permit any Authorized User or third party to: (a) use the Services in violation of applicable law or this MSA; (b) copy, modify, translate, or create derivative works of the Services; (c) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, underlying structure, algorithms, or ideas of the Services; (d) interfere with, disrupt, overload, or compromise the integrity, security, or performance of the Services; (e) attempt to gain unauthorized access to the Services or any related systems, networks, or data; (f) conduct vulnerability scans, penetration tests, or other security testing of the Services without FixedOps Innovations’s prior written approval; (g) use the Services to transmit malicious code or harmful content; (h) remove or obscure proprietary notices; (i) resell, sublicense, or make the Services available to any third party except as expressly authorized in the applicable Activation Agreement; or (j) use the Services for any purpose other than Client’s internal business operations and the purposes authorized under this MSA and the applicable Activation Agreement.
4.6. Overlapping Systems and Service Integrity.
During the applicable Service Period, Client will use the Services as the designated solution for the covered workflows, systems, data, and operations identified in the applicable Activation Agreement. Client will not, and will not permit any Authorized User, affiliate, service provider, vendor, representative, or other party acting on Client’s behalf to, knowingly use or enable any third-party product, service, workflow, automation, or system for those same covered workflows, systems, data, or operations in a manner that materially conflicts with, duplicates, interferes with, degrades, or compromises the operation, outputs, supportability, security, or integrity of the Services, except with FixedOps Innovations’s prior written approval. This Section does not restrict Client from using general business systems, ordinary productivity tools, or other systems that do not materially overlap with or interfere with the Services.
5. Confidentiality.
5.1. Confidential Information.
“Confidential Information” means any non-public information disclosed by one Party to the other Party, whether orally, visually, electronically, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes Client Data, Customer Information, business plans, technical information, security information, product plans, and non-public information regarding the Services.
5.2. Obligations.
Each Party will use the other Party’s Confidential Information only as necessary to perform or receive the Services or exercise its rights under this MSA and will not disclose the other Party’s Confidential Information to any third party except to its employees, contractors, advisors, agents, service providers, or representatives who need to know the information and are bound by confidentiality obligations at least as protective as those set forth in this MSA.
5.3. Exclusions.
Confidential Information does not include information that the receiving Party can demonstrate: (a) is or becomes publicly available without breach of this MSA; (b) was known to the receiving Party before disclosure; (c) is received from a third party without breach of any confidentiality obligation; or (d) is independently developed without use of or reference to the disclosing Party’s Confidential Information.
5.4. Compelled Disclosure.
A receiving Party may disclose Confidential Information to the extent required by law, subpoena, court order, or governmental authority, provided that, to the extent legally permitted, the receiving Party gives the disclosing Party prompt notice and reasonable assistance so the disclosing Party may seek protective treatment.
5.5. Survival.
This Section will survive termination or expiration of this MSA.
6. Data Processing and Security.
“Client Data” means data, records, content, and information made available to FixedOps Innovations by or on behalf of Client in connection with the Services, including customer, estimate, service, invoice, claim, transaction, communication, document, workflow, configuration, operational, compliance, and related information. “Customer Information” means nonpublic personal information, personal information, personally identifiable information, protected customer data, or other customer-related information contained in Client Data. FixedOps Innovations will process Client Data and Customer Information in accordance with the Data Processing and Security Addendum available at www.fixedopsinnovations.com/dpsa.
7. Warranties and Disclaimers.
7.1. Mutual Authority.
Each Party represents that it has the legal power and authority to enter into this MSA and any Activation Agreement it executes.
7.2. Compliance by Client.
Client represents that it has all rights, permissions, consents, and authorizations necessary to make Client Data and Customer Information available to FixedOps Innovations for use in connection with the Services and to authorize FixedOps Innovations to provide the Services under this MSA and the applicable Activation Agreement.
7.3. Disclaimers.
Except as expressly stated in this MSA, the applicable Activation Agreement, or any applicable Service Level Agreements, FixedOps Innovations makes no warranties, whether express, implied, statutory, or otherwise, regarding the Services. FixedOps Innovations specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, and any warranties arising out of course of dealing or usage of trade.
FixedOps Innovations does not warrant that the Services will be uninterrupted, error-free, or that all defects will be corrected. FixedOps Innovations does not make, control, or guarantee Client’s business decisions, compliance decisions, customer communications, third-party decisions, provider actions, transaction outcomes, service outcomes, payment outcomes, coverage determinations, reimbursement decisions, approvals, or other business outcomes.
7.4. Third-Party and Public Data Sources.
The Services may use, reference, incorporate, display, analyze, or rely on information from public data sources, government databases, third-party data sources, Client-controlled systems, Management Software providers, warranty administrators, service providers, or other external sources. FixedOps Innovations does not control and does not warrant the accuracy, completeness, timeliness, availability, continued availability, or currentness of such third-party or public-source information, including any vehicle, recall, service bulletin, warranty, eligibility, classification, coverage, or similar information.
Client remains responsible for reviewing, validating, and determining whether to rely on such information in connection with Client’s business decisions, customer communications, warranty determinations, claims submissions, service transactions, compliance obligations, and related operations. FixedOps Innovations will not be responsible for claims, losses, damages, penalties, costs, expenses, or business outcomes arising out of or relating to inaccurate, incomplete, delayed, unavailable, outdated, or non-current information from public data sources, government databases, third-party data sources, Client-controlled systems, Management Software providers, warranty administrators, service providers, or other external sources, except to the extent caused by FixedOps Innovations’s gross negligence, willful misconduct, unlawful acts, or material breach of this MSA.
8. Indemnification.
8.1. Indemnification by FixedOps Innovations.
FixedOps Innovations agrees to indemnify, defend, and hold harmless Client from and against any third-party claims, liabilities, damages, losses, penalties, costs, and expenses, including reasonable attorneys’ fees, arising out of or resulting from: (a) an unaffiliated third party’s claim that the Services infringe or misappropriate such third party’s intellectual property rights; or (b) FixedOps Innovations’s unauthorized disclosure of Customer Information, including any unauthorized disclosure resulting from a data breach, in each case to the extent caused by FixedOps Innovations’s gross negligence, willful misconduct, unlawful acts, or material breach of this MSA.
8.2. Exclusions from FixedOps Innovations Indemnity.
FixedOps Innovations will have no obligation under Section 8.1 to the extent a claim arises out of or relates to Client Data, Client’s failure to comply with this MSA or any Activation Agreement, modifications not made by FixedOps Innovations, Client’s systems or environment, or the combination, operation, or use of the Services with data, software, hardware, systems, workflows, configurations, rules, settings, eligibility criteria, or instructions not provided by FixedOps Innovations.
8.3. Indemnification by Client.
Client agrees to indemnify, defend, and hold harmless FixedOps Innovations from and against any third-party claims, liabilities, damages, losses, penalties, costs, and expenses, including reasonable attorneys’ fees, arising out of or resulting from: (a) Client’s failure to input, maintain, validate, or provide accurate customer, estimate, service, invoice, claim, transaction, communication, document, workflow, configuration, operational, compliance, and related information; (b) Client’s governmental, regulatory, legal, operational, customer disclosure, service, invoice, estimate, claim, transaction, communication, or related compliance obligations; (c) Client’s warranty determinations, claims submissions, customer communications, or related transactions; (d) configurations, rules, settings, workflows, eligibility criteria, customer-facing content, business decisions, or instructions supplied, approved, managed, or directed by Client, Client’s authorized third-party administrators, agents, vendors, representatives, or other parties acting on Client’s behalf; or (e) Client’s or its Authorized Users’ reliance on, use of, validation of, or failure to validate information from Client-controlled systems, Management Software, public data sources, government databases, third-party data sources, vehicle information sources, warranty administrators, service providers, or other external sources, including inaccurate, incomplete, delayed, unavailable, outdated, or non-current vehicle, recall, service bulletin, warranty, eligibility, classification, coverage, or similar information, except to the extent such claim arises from FixedOps Innovations’s gross negligence, willful misconduct, unlawful acts, or material breach of this MSA.
8.4. Indemnification Procedures.
The indemnified Party will promptly notify the indemnifying Party of any claim for which indemnification is sought, provide reasonable cooperation, and allow the indemnifying Party to control the defense and settlement of the claim; provided that the indemnifying Party may not settle any claim in a manner that admits fault by, imposes non-monetary obligations on, or otherwise materially prejudices the indemnified Party without the indemnified Party’s prior written consent.
8.5. Survival.
This Section will survive termination or expiration of this MSA.
9. Limitation of Liability.
With the exception of the indemnification obligations set forth in this MSA, in no event will either Party be liable for any indirect, incidental, special, exemplary, punitive, or consequential losses or damages of any kind or nature whatsoever arising out of or related to this MSA, any Activation Agreement, or the Services, including, without limitation, lost profits, lost or damaged data, failure to achieve cost savings, loss of use of facility or equipment, business interruption, or increased expense of operations, however caused and under any theory of liability giving rise to such liability.
These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
This Section will survive any termination or expiration of this MSA.
10. Miscellaneous.
10.1. Updates to Online Terms and Policies.
FixedOps Innovations may update the Service Level Agreements, Support Policy, Deployment Guide, Data Processing and Security Addendum, and other policies or documents referenced in this MSA from time to time; provided that FixedOps Innovations will not make any material adverse change to Client’s rights or obligations under such referenced documents during an active Service Period without reasonable prior notice to Client. Updates will be effective upon posting unless a later effective date is stated.
10.2. Publicity.
FixedOps Innovations will not use Client’s name, trademarks, logos, or other identifying marks in FixedOps Innovations marketing, promotional materials, press releases, customer lists, websites, or public announcements without Client’s prior written consent. For clarity, this restriction does not limit FixedOps Innovations’s use of Client’s name, logos, or identifying information as reasonably necessary to provide, operate, support, or administer the Services.
10.3. Assignment.
Neither Party may assign or transfer this MSA or any Activation Agreement, in whole or in part, without the other Party’s prior written consent, except that either Party may assign this MSA and any applicable Activation Agreement without consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section will be null and void. This MSA will bind and benefit the Parties and their respective permitted successors and assigns.
10.4. Governing Law; Venue.
This MSA and any Activation Agreement will be governed by the laws of the State of Delaware, without regard to conflict of laws principles. The Parties agree that any legal action or proceeding arising out of or relating to this MSA, any Activation Agreement, or the Services will be brought exclusively in the state or federal courts located in Delaware, and each Party consents to the personal jurisdiction and venue of such courts.
10.5. Jury Trial Waiver.
Each Party knowingly, voluntarily, and intentionally waives any right to trial by jury in any action or proceeding arising out of or relating to this MSA, any Activation Agreement, or the Services.
10.6. Injunctive Relief.
Each Party acknowledges that a breach or threatened breach of the confidentiality, intellectual property, data security, or unauthorized access/use provisions of this MSA may cause irreparable harm for which monetary damages may be an inadequate remedy. Accordingly, either Party may seek injunctive or other equitable relief to prevent or stop such breach or threatened breach, without posting bond, in addition to any other remedies available at law or in equity.
10.7. Notices.
Notices under this MSA may be provided by email to the primary contact identified in the applicable Activation Agreement, or to any updated notice contact provided by a Party in writing. Notices will be deemed given when sent, provided that the sending Party does not receive an automated delivery failure notice. Either Party may update its notice contact by providing written notice to the other Party.
10.8. Force Majeure.
Neither Party will be liable for any delay or failure to perform its obligations under this MSA, other than obligations that by their nature cannot be excused, to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, labor disputes, war, terrorism, civil unrest, governmental actions, internet or telecommunications failures, power failures, cyberattacks, service provider failures, or other events beyond the affected Party’s reasonable control.
10.9. Relationship of the Parties.
The Parties are independent contractors. Nothing in this MSA or any Activation Agreement creates any partnership, joint venture, franchise, employment, fiduciary, or agency relationship between the Parties. Neither Party has authority to bind the other Party or make any representation, warranty, or commitment on behalf of the other Party.
10.10. Order of Precedence.
If there is a conflict between this MSA, an Activation Agreement, the Data Processing and Security Addendum, the Service Level Agreements, the Support Policy, the Deployment Guide, or any other document referenced in this MSA, the following order of precedence will apply: (a) the applicable Activation Agreement, but only with respect to the specific Services, Authorized Locations, Service Period, and business terms set forth therein; (b) the Data Processing and Security Addendum, but only with respect to data processing, privacy, and security matters; (c) this MSA; and (d) the Service Level Agreements, Support Policy, Deployment Guide, and other referenced policies, but only with respect to the subject matter they address.
10.11. Severability; Waiver; Remedies.
If any provision of this MSA is held invalid, illegal, or unenforceable, the remaining provisions will remain in full force and effect, and the invalid, illegal, or unenforceable provision will be modified to the minimum extent necessary to make it valid, legal, and enforceable. No failure or delay by either Party in exercising any right under this MSA will constitute a waiver of that right. Except as expressly stated in this MSA, the Parties’ rights and remedies are cumulative and not exclusive.
10.12. Export and Sanctions Compliance.
Client will not use the Services in violation of applicable export control, sanctions, or restricted-party laws.
10.13. Counterparts; Electronic Signatures.
Any Activation Agreement may be executed by Client through signature, electronic signature, or other electronic acceptance method, including by clicking “I agree,” “I accept,” or a substantially similar acceptance mechanism presented with or in connection with the Services. By signing an Activation Agreement, electronically accepting an Activation Agreement, or accessing or using the Services after such acceptance, Client agrees to the terms of this MSA. Signatures and acceptances delivered electronically, by PDF, electronic signature platform, click-through acceptance, or other electronic means will be deemed original signatures and binding acceptances.
10.14. Entire Agreement.
This MSA, together with each applicable Activation Agreement and the documents referenced in this MSA or such Activation Agreement, constitutes the entire agreement between the Parties regarding the Services and supersedes all prior and contemporaneous agreements, proposals, understandings, and communications regarding the subject matter hereof.