MASTER SERVICES AGREEMENT
By using the Hawk Search service (the “Service”) and signing associated documentation referencing this Agreement, you (“Customer”) agree to be bound by the following terms and conditions of this Master Services Agreement (“Agreement”) with Hawk Search, Inc. (“Hawk”). Customer should carefully read the following terms of this Agreement before using the Service. Customer agrees that any new features that augment or enhance the Service, and/or any new Service(s) subsequently purchased by Customer will be subject to the terms of this Agreement. This Agreement also incorporates by reference, and if applicable, Hawk’s Acceptable Use Policy (“AUP”) found at www.hawksearch.com/contract/hawkaup and Hawk’s Service Level Agreement (“SLA”) found at www.hawksearch.com/contract/hawksla. With notice to Customer, Hawk may update its terms and conditions. The current terms found at www.hawksearch.com/contract/hawkmsa will be in effect.
This Agreement represents the principal terms and conditions that shall apply to Customer’s use of the Hawk Search service (“Hawk”) and Managed Consulting Services (“Consulting Services”) (the Hawk and Consulting Services shall hereinafter be referenced collectively from time to time as the “Services”) to be provided under this Agreement. The Services to be provided under this Agreement shall be specifically described on each Exhibit (“Exhibit”) which shall also reflect the applicable fees for such Services and any other relevant terms and conditions. Any Exhibit executed under this Agreement shall be construed to be incorporated as part of and governed by the terms and conditions of this Agreement. In the event of a conflict between the terms of this Agreement and the Exhibit, the terms of the Exhibit shall control.
This Agreement shall be effective on the date the Exhibits are executed by Customer and shall remain in effect for so long as there is an Exhibit in effect unless otherwise terminated in accordance with the Termination provisions below. The term of any Exhibit executed forthwith, shall commence on the date the Services begin (“Go-Live date”) and shall continue in effect for such time specified in the Exhibit. Upon the expiration of the Exhibit term (e.g. 12 months after Go-Live), the Exhibit will automatically renew for successive one-year renewal terms, unless either party provides written notification of cancellation sixty (60) days prior to the end of the then current renewal term.
Hawk grants to Customer a limited, revocable, non-exclusive, non-transferable or assignable royalty-bearing, license to use the Hawk Proprietary Intellectual Property as set forth herein and further specified in the applicable Exhibit. All rights not expressly granted herein are reserved to Hawk.
Customer shall pay to Hawk the fees specified on the applicable Exhibit, and the terms for such payment shall also be specified on the Exhibit. All other fees including, but not exclusive to, any reasonable out-of-pocket expenses incurred by Hawk in connection with the Services, shall be due and payable fifteen (15) days after receipt of an invoice unless otherwise specified. Customer shall be responsible for any applicable sales, use, excise or other taxes attributable to the services provided or the amounts charged under this Agreement and shall hold Hawk harmless from all claims and liabilities arising out of Customer’s failure to report or pay any such taxes, duties, and assessments. Upon written notification to Customer ninety days prior to the end of the Exhibit Term, Hawk shall have the option to increase all fees chargeable under this Agreement by up to 15% per annum. In the event of any delinquency in payments, in addition to any other rights or remedies Hawk may have under the Agreement, Hawk may charge Customer interest in the amount of 1 1/2 % per month.
Hawk Intellectual Property
All of the software, code, methodologies, tools, processes, procedures, algorithms, and any related documentation or configuration files in whatever form or media owned or developed by or on behalf of Hawk, including during the term of this Agreement, that is furnished by Hawk or otherwise used in connection with the Services, and any enhancements, modifications, derivative works, or other alterations excluding Third Party Intellectual Property (collectively, the “Hawk Proprietary Intellectual Property”) shall be and shall remain the exclusive property of Hawk. All software, code, methodologies, processes, procedures, algorithms, and any related documentation in whatever form or media licensed or leased by Hawk from a third party that is used in connection with the Services, (“Third Party Intellectual Property”) shall be and shall remain the exclusive property of such third party licensors. Customer shall have no rights or interests in the Hawk Proprietary Intellectual Property or Third Party Intellectual Property except as otherwise expressly granted by Hawk or such third party.
Hawk represents and warrants that during the Term of this Agreement, the applicable Services will be performed in accordance with the service levels specified in each applicable Exhibit so long as the applicable Services are used by Customer in accordance with the terms of this Agreement. Customer’s sole and exclusive remedy and Hawk’s sole obligation and liability relating to the Services and Customer’s use thereof, including any breach of this warranty provision where such breach is not due to an act or omission of Customer, in which case, there shall be no warranty, shall be that Hawk shall provide the Services necessary to correct any failure of services to conform to the service level requirements as set forth in the Exhibit. If Hawk fails after repeated attempts to correct any such failure, either party may terminate the agreement, and Hawk’s entire liability to Customer for such breach shall not exceed the average monthly fees paid to Hawk in the prior two (2) months for the Services under the applicable Exhibit.
Customer represents and warrants that it will not (i) reverse engineer or attempt to decompile any software associated with the Services; (ii) attempt to re-sell or re-distribute the Services; or (iii) allow unauthorized access to the Services, including to any affiliated companies not named herein; (iv) creative derivative works based on the Services; (v) use the Services outside of the scope described herein and (iv) remove any proprietary markings or legends on any products or intellectual property furnished in connection with the Services or (vi) use the Services and any associated software to provide or operate any application service, service bureau, marketing, training, outsourcing services, cloud services, web services, or consulting services or any other commercial services related to the software and/or otherwise use the Services or associated software or develop similar products which may be directly or indirectly competitive with Hawk’s business.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES THAT ARE PROVIDED TO CUSTOMER BY HAWK INCLUDING WITHOUT LIMITATION, ANY PRODUCTS FURNISHED THAT CONTAIN HAWK PROPRIETARY INTELLECTUAL PROPERTY OR THIRD PARTY INTELLECTUAL PROPERTY PURSUANT TO THIS AGREEMENT ARE FURNISHED BY HAWK ON AN “AS IS” BASIS, AND NEITHER HAWK, OR ITS SUPPLIERS, MAKE ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR SERVICES TO BE PROVIDED HEREUNDER OR THAT ANY SOFTWARE OR OTHER ELECTRONIC DEVICES PROVIDED WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. HAWK SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR INTERCEPTION OR MISDIRECTION OF CUSTOMER DATA, FILES, SOFTWARE, CODE, OPERATING SYSTEMS, APPLICATIONS, DATA STORAGE MEDIA, OR OTHER PROPERTY THAT OCCURS DURING CONNECTION, TRANSMISSION, USE OR RESTORATION BY CUSTOMER OR HAWK IN CONNNECTION WITH THE SERVICES.
Limitation of Liability
IN NO EVENT SHALL HAWK’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED TWO TIMES THE AVERAGE MONTHLY FEES PAID AND RETAINED BY HAWK FOR THE SERVICES WITH RESPECT TO WHICH THE CLAIM AROSE UNDER THE APPLICABLE EXHIBIT. Neither Customer nor HAWK shall be liable for, nor will the measure of damages include, any indirect, lost profits or lost revenues, incidental, special, consequential or punitive damages arising out of or relating to its performance or failure to perform under this Agreement even if such party has been adviseD of the possibility of such damages.
Hawk and Customer acknowledge that any “Confidential Information”, meaning any written, audible, visual, or oral information that is either (a) identified as confidential or proprietary or (b) is marked with a restrictive legend, or which should otherwise be reasonably deemed confidential shall be held in strict confidence by the recipient in at least the same manner as the recipient protects its own confidential information unless (i) that information is or becomes publicly known, (ii) is independently developed by the recipient without violating the disclosing Party's proprietary rights as shown by the recipient's written records, (iii) is disclosed by the owner of such information to a third party free of any obligation of confidentiality, or is rightfully received by a Party free of any obligation of confidentiality or (iv) is required by law or other judicial or governmental order to be disclosed in which case the disclosing party shall be given prior written notice and an opportunity to seek a protective order against such disclosure and the recipient shall disclose only the minimum amount of information necessary as advised by recipient’s legal counsel. Without limiting the foregoing, confidential information shall specifically include (a) Customer’s trade secrets, intellectual property, including data and software, as well as computer operations and recovery procedures (b) Hawk’s trade secrets including Hawk Intellectual Property, physical security systems, access control systems, specialized equipment, pricing and use policies and those of its licensors, and (c) the terms of this Agreement. Neither Customer nor Hawk shall disclose or use any confidential information for any purpose other than for the performance of duties and obligations under this Agreement, and shall restrict disclosure to employees or agents on a “need to know” basis. Any other disclosure must be mutually agreed to in writing. In the event of a breach of the terms in this section, both Hawk and Customer have the right to seek equitable and injunctive relief without the posting of a security bond or other similar requirement.
Hawk represents that it is an independent contractor, and that nothing contained in this Agreement shall be construed to make either Customer or Hawk partners, joint ventures, principals, agents or employees of the other; that no authority has been granted to Hawk or its agents to act on behalf of or bind Customer nor shall Customer have the right to bind Hawk; that Hawk may provide similar Services to other customers; that any persons provided by Hawk to Customer pursuant to the performance of Services shall be employees or contractors of Hawk and under the exclusive direction of Hawk. Hawk shall have the sole right to supervise, manage, direct, procure, perform or cause to be performed, all work performed by Hawk under this Agreement.
SUSPENSION OF SERVICES
Customer agrees that Hawk may suspend Services without liability if (a) Hawk reasonably believes that the Services are being used in violation of the Agreement, (b) Customer does not cooperate with Hawk’s reasonable investigation of any suspected violation of the Agreement, (c) there is an attack on Customer’s server(s), Customer’s server is accessed or manipulated by a third party without Customer’s consent, or there is another event for which Hawk reasonably believes that the suspension of Services is necessary to protect the Hawk network or Hawk’s other customers, (d) if required by law, or (e) invoice payments are delinquent. Hawk will give Customer advance notice of a suspension under this paragraph of at least twelve Business Hours unless Hawk determines in Hawk’s reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Hawk or its other customers from imminent and significant operational or security risk.
Hawk shall have the right to terminate this Agreement effective immediately upon written notice to Customer without further obligation or liability if (a) Customer fails to pay any amounts when due, and continues to be delinquent for a period of thirty (30) days after written notice by Hawk of such non-payment, (b) Customer commits a material breach of any obligation under this Agreement and such breach shall not be corrected or remedied, if capable of being cured, within thirty (30) days after written notice by Hawk, or (c) Customer becomes or is declared insolvent or bankrupt, or shall commence or have commenced against it a bankruptcy, insolvency, receivership or similar proceeding. Any use of the Services by Customer other than usage in accordance with the then current Hawk acceptable use policy or the applicable Exhibit will constitute a material breach of this Agreement. In the event of gross and/or malicious non-compliance of the acceptable use policy or for any violation of any law, rule, regulation or policy of any government authority having jurisdiction over Hawk, or any knowing infringement of Hawk Proprietary Intellectual Property or Third Party Intellectual Property, Hawk may immediately suspend Services and cancel any Exhibit executed under this Agreement without notice. Hawk’s termination of this agreement shall be without prejudice to any other remedies that Hawk may have. The Intellectual Property, Limitation of Liability, Confidentiality, and Indemnities sections shall survive any termination of this Agreement. If Customer terminates agreement during any 12 month term, Hawk reserves the right to invoice Customer for the remaining balance of fees due for the current term.
Hawk agrees to indemnify, defend and hold the Customer harmless from and against claims, demands, litigation, expenses and liabilities, and losses incurred by Customer arising from third party claims of trade secret, trade mark, right of publicity or copyright infringement asserted against either party by virtue of Customer's use of the Hawk Proprietary Intellectual Property; provided, however, that (a) Hawk is given prompt notice within 14 days of any such claim, (b) Hawk has the right to control and direct the defense of such claim and (c) Customer fully cooperates with Hawk in such defense. Hawk shall have no liability for any claim of infringement that results from or relates to (a) any modification or enhancement to the Hawk Proprietary Intellectual Property or the Services by Customer, (b) any failure by Customer to implement, install or use the Hawk Proprietary Intellectual Property or the Services as directed by Hawk, (c) the combination, operation or use of the Hawk Proprietary Intellectual Property with non-Hawk programs, data or documentation and (d) materials, items, resources, or services provided or performed by Customer (whether or not used in connection with or incorporated into the Hawk Proprietary Intellectual Property or the Services) (e) any content, information or data provided by Customer, end users, or third parties or (f) any failure by Customer to install upgrades or other enhancements available to and recommended by Hawk. In the event the Hawk Proprietary Intellectual Property or the Services are finally adjudicated to infringe any rights of a third party,, Customer’s sole and exclusive remedy and Hawk’s entire liability and obligation with regards to remedy such infringement shall be, at Hawk’s sole option and expense, to (a) modify the Hawk Proprietary Intellectual Property or the Services to be non-infringing, (b) obtain for Customer a license to continue using the Hawk Proprietary Intellectual Property or the Services or (c) terminate this Agreement and the license granted hereunder and accept return of the Hawk Proprietary Intellectual Property. Customer agrees to indemnify, defend and hold Hawk and Hawk agents harmless from and against any and all losses arising from any claim relating to (a) the infringement by or of the Customer Intellectual property or any other resources or items provided to Hawk or Hawk agents by Customer or Customer agents, (b) any amounts, including taxes, interest and penalties which are obligations of Customer pursuant to this Agreement and Exhibit, (c) the nature and use of any products or services, materials, or data provided by Customer or Customer agents to third parties, (d) any breach or default by Customer in the performance of Customer's obligations under agreements with third parties, (e) arising out of Customer's or any end user's use of or conduct in connection with the Services; (f) any third party litigation or subpoena arising out of Customer’s products, services, or industry. Customer Intellectual Property shall mean Customer’s prior existing software, methodologies, processes, procedures, algorithms, and any related documentation in whatever form or media owned by or on behalf of Customer or licensed or leased by Customer from a third party. Hawk agrees to indemnify and hold harmless Customer from personal injury or property damage resulting from or arising out of the gross negligence or willful misconduct of Hawk’s employees and/or agents.
During the term of this Agreement or any Exhibit hereunder, and for a period of one (1) year thereafter, Customer agrees not to hire, solicit or accept employment of any of Hawk’s employees, independent contractors or agents with whom it has had contact as a result of this Agreement without the prior written consent of Hawk. In the event Customer hires such an employee, independent contractor or agent in contravention of this Agreement, Customer will immediately pay a fee to Hawk equal to such person’s then current annual compensation (or the amount paid to such person by Hawk during the previous twelve (12) months in the case of an independent contractor).
Customer shall approve a mutually agreeable press release, which contains at least one quote from an executive of Customer, within thirty (30) days of the Go-Live date. In the event Hawk issues a press release which includes a Customer quote, Hawk will obtain Customer’s prior written consent. Customer grants Hawk the right to use Customer's name and logo for the purpose of identifying Customer as one of Hawk's customers for the duration of this Agreement, including without limitation on Hawk's web site, brochures, press releases and other marketing materials. Upon termination of this Agreement, Hawk will remove Customer's name and logo from Hawk's web site within a reasonable time thereafter, and Hawk shall not thereafter prepare any further hard copy materials bearing Customer's name and logo, although Hawk may continue to use up and distribute hard copy materials then in its possession or under its control.
Neither Hawk nor Customer shall be liable for any failure or delay in its performance under this Agreement including any delays, errors, failures to perform, interruptions or disruptions in the Services due to causes that are beyond its reasonable control (a "Force Majeure Event"). The affected party shall notify the other party of such Force Majeure Event promptly, and both Hawk and Customer agree to work together to resolve any issues related to such an event in order to facilitate the resumption of Services.
Neither Hawk nor Customer may bring an action, regardless of form, arising out of this Agreement more than one (1) year after the cause of action has arisen or the date such cause of action was or should have been discovered.
Third Party Beneficiary
Customer acknowledges that Hawk is a licensee of certain third party software products being licensed to Customer hereunder including those which are owned by Hawk Search, Inc. (“Hawk Search”). Accordingly, Hawk Search shall be deemed a third party beneficiary to this Agreement with the right but not the obligation, to enforce the terms.
Neither Hawk nor Customer shall export, directly or indirectly, any information acquired under this Agreement or any product utilizing such information to any country for which the government of the United States of America or any agency thereof or any other governmental authority at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed in accordance with the laws of Illinois without giving effect to the principles thereof relating to the conflicts of laws.
All notices, requests, consents and other communications under this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the third business day after being sent by first class mail. Customer’s address for notices shall be set out in each Exhibit. Hawk’s address for notice is 800 Roosevelt Road Building A-360 Glen Ellyn, IL 60137, Attention: Contract Administration.
This Agreement including any and all Exhibits and addenda to this Agreement represent the entire agreement between Hawk and Customer with respect to its subject matter, and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, of the parties. There are no other representations, understandings or agreements between the Hawk and Customer relative to such subject matter. In the event Customer submits work orders, change orders, purchase orders, invoices or other similar documents for accounting or administrative purposes or otherwise, no pre-printed or similar terms and conditions contained in any such form shall be deemed to supersede any of the terms and conditions herein without express written approval by Hawk.
No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an authorized representative of each of the parties. In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement shall remain in full force and effect, and the invalid provision shall remain in force as reformed by the court. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant must be signed by the party waiving its rights, and shall not be construed to be a waiver of any succeeding breach or any other covenant.
This Agreement shall be binding and inure to the benefit of the parties hereto. Customer may not, without the prior written consent of Hawk, assign this Agreement or any of the rights granted hereunder, in whole or in part, and may not delegate its obligations under this Agreement. Any such purported assignment or delegation in contravention of these terms shall be null and void. No such consent shall be necessary from Hawk in the event of a merger or an acquisition of all or substantially all of Customer’s assets unless the assignment or transfer is to a competitor or an entity owned or controlled by a competitor.