Master Agreement

The terms contained herein (the “Terms”) and any Program Order Form (each, an “Order Form”) to which these Terms are incorporated (collectively, the “Agreement”) constitute an agreement between the entity to which the Order Form is addressed (“Organization”) and the EAB entity listed on the Order Form (“EAB”) regarding the program(s) (the “Program”) and the services (the “Services”) described in the Order Form. Capitalized terms not otherwise defined herein will have the meanings given to them in the Order Form.

1. Fees and Payment

Organization will pay EAB fees for the Services as stated in the Order Form.  Unless expressly stated otherwise in the Order Form, Organization shall pay EAB within 30 days of receipt of an invoice.  Overdue payments are subject to a late payment charge, which is compounded monthly, calculated at the lesser of (x) a rate of 1% per month or (y) the maximum amount permitted by law.  Organization will be responsible for all costs and expenses incurred by EAB in collecting any fees or other sums owed by Organization.  If Organization fails to pay undisputed amounts in accordance with the Order Form, EAB shall have the right, in addition to any of its other rights or remedies, to suspend the Services, without liability to Organization, until such amounts are paid in full.

2. Disputed Fees

If Organization disputes any fees, taxes, or other charges invoiced by EAB, Organization shall notify EAB, in writing, of the disputed amount and provide any relevant information regarding the circumstances of the dispute.  The parties agree to work cooperatively to resolve any such disputed amounts.  If Organization fails to provide EAB with a dispute notice within ten (10) days following receipt of EAB’s invoice, then such amount is deemed undisputed and due to EAB.

3. Taxes

Organization will be responsible for payment of any applicable sales, use, and other applicable taxes, including the value-added tax, and all applicable export and import fees, customs duties and similar charges (other than taxes based on EAB’s income), and any related penalties and interest for the grant of the Services hereunder.  If Organization is tax exempt and provides EAB with a valid tax exempt certificate issued by the relevant taxing jurisdiction, EAB will not charge Organization any taxes that Organization is not obligated to pay.  Organization will make all required payments to EAB free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments to EAB will be Organization’s sole responsibility, and Organization will, upon EAB’s written request, provide EAB with official receipts issued by appropriate taxing authorities, or such other evidence as EAB may reasonably request, to establish that such taxes have been paid.

4. Organization-Provided Data

In connection with the provision of the Services, Organization, directly or indirectly may provide or make available to EAB certain data or information (collectively, “O-P Data”).   Organization shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness (including having obtained any necessary consents or third party rights) relating to all O-P Data and the sharing of such data, and EAB does not assume responsibility for unintended, objectionable, inaccurate, misleading, or unlawful O-P Data used in connection with the Services. Unless otherwise required in order to provide the Services, EAB will have no obligation to archive, back up, or, following the term of the Agreement, retain, O-P Data, nor will EAB have any liability for any loss or corruption of O-P Data.

5. Ownership

Organization hereby grants EAB authorization to use O-P Data to the extent expressly authorized in these Terms.   As between the parties, Organization owns the O-P Data. Organization hereby grants EAB a non-exclusive right and license to use, reproduce, host, reformat, and create derivative works from, publicly display and otherwise exploit all or portions of the O-P Data: (a) in connection with providing the Services; (b) for internal tracking, reliability testing and research purposes; and (c) in a manner that does not identify Organization for any lawful purpose in EAB’s discretion. The rights granted in the foregoing clauses (b) and (c) shall be perpetual and shall survive the termination or expiration of this Agreement.  As between the parties, EAB owns all right, title and interest in and to the research, research results, tools, artwork, copy, concepts, methods, analyses, reports, improvements, developments, or other materials or information relating to the Services (including, without limitation, any derivative works from the O-P Data or other materials based on or incorporating O-P Data, except for the O-P Data therein) (collectively, the “Materials”), the Services, the know-how, techniques or procedures used or acquired in creating the Materials or performing the Services, and any derivative works of any of the foregoing.  Except as stated in these Terms, no right, license, permission, or interest of any kind in the Services or the Materials is intended to be given, transferred to, or acquired by Organization by the Agreement.  Organization is authorized to use the Services or the Materials only to the extent expressly authorized in these Terms.  Upon termination or expiration of an Order Form, Organization’s rights to and its use of the applicable Services and the Materials shall promptly cease, except that Organization may continue to use any Materials solely for internal purposes.  Upon request, Organization shall return any Materials if the continued use thereof would be prohibited under this Agreement.

To the extent Organization enrolls in additional EAB programs  (each, an “Additional Program”), O-P Data collected or processed by EAB may be combined with the O-P Data collected or processed hereby as may be expressly directed by Organization to the extent allowed by law.

6. Confidentiality; Reference

Except as required by law or as reasonably necessary in the performance of the Services or as otherwise agreed to by Organization in the Order Form or in a separate writing, EAB will keep confidential any and all O-P Data.  Notwithstanding the foregoing, Organization agrees that EAB shall not be obligated to maintain the confidentiality of O-P Data that is known to EAB prior to receiving the O-P Data from Organization or that becomes known (independently of disclosure by Organization) directly or indirectly from a source other than one having an obligation of confidentiality to Organization or that is independently developed by EAB.  Organization agrees that EAB may collect aggregated statistical data regarding Organization’s use of the Services and provide such aggregated statistical data to third parties.

The Materials are confidential to EAB and its suppliers, if any.  Thus, Organization shall not disseminate to, or permit the use of, and shall take reasonable precautions to prevent such dissemination or use of, the Materials by any of its Personnel to any third party without the express prior written consent of EAB.  In addition, except as required by law, Organization shall not disclose the fees charged by EAB to Organization to any third party, other than its Personnel or professional services providers (e.g., accountants or legal counsel) who need to know such information in order to provide their respective professional services to Organization and, in each case, are bound by confidentiality obligations to Organization.  Organization shall not remove from the Materials any confidential markings, copyright notices and other similar indicia therein and shall not create any derivative works thereof.  “Personnel” means a party’s officers, directors, trustees, employees, and agents. Notwithstanding the foregoing, a party may disclose O-P Data and the Materials to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under the Agreement, including to make such court filings as it may be required to do.

EAB may use Organization’s name on a list of organizations in EAB programs.

7. Limitations on Liability

To the fullest extent permitted by law, in no event will EAB or its Personnel be liable for any consequential, special, indirect, incidental, punitive, or exemplary loss, damage, or expense, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, under any theory of liability even if a party has been advised of the possibility of such damages. The aggregate liability of EAB and its Personnel relating a particular PROGRAM shall not exceed the amount paid by Organization to EAB for such Program in the 12 month period before the claim, liability or expense with respect to such PROGRAM arose, except to the extent finally judicially determined to have resulted from EAB’s bad faith or intentional misconduct.  In addition, EAB will not be liable in respect of the following: (a) any decisions made by Organization as a result of the performance of the Services or as a result of any transactions made in reliance upon any of the Materials; (b) Organization’s misuse of the Services, the Materials, or other data provided to Organization in connection with the PROGRAM; (c) any claims by any third party in connection with O-P Data or other information unlawfully disclosed to EAB by the Organization.

8. Warranties

EAB represents and warrants that it will provide the Services in a professional and workmanlike manner. Organization represents and warrants that (a) its signatory is authorized to enter into this Agreement and any Order Form on behalf of Organization, and (b) (i) its provision of O-P Data and (ii)  its and its Authorized Users’ receipt of and access to the Services (including the Software and O-P Data and other data and information made available through the Software) will not violate any of its obligations to third parties or violate any applicable laws, and (c) it has obtained all necessary third party consents and authorizations to provide the O-P Data and for such O-P Data to be used in the manner contemplated by the Agreement. EAB makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature, or reliability of such O-P Data or any products or services derived therefrom. Except as expressly provided in these Terms, to the maximum extent permitted by applicable law, the services and THE materials are provided “as is,” and EAB MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES AND THE MATERIALS AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT.  EAB DOES NOT WARRANT THAT THE SERVICES WILL MEET ORGANIZATION’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.  THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND EAB IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

9. Essential Basis of the Agreement

Organization acknowledges and understands that the disclaimers, exclusions, and limitations of liability set forth in these Terms form an essential basis of the Agreement, that the parties have relied upon such disclaimers, exclusions, and limitations of liability in negotiating the terms and conditions in the Agreement, and that absent such disclaimers, exclusions, and limitations of liability, the terms and conditions of the Agreement would be substantially different.

10. Termination

Except as otherwise provided in an Order Form, any Order Form may only be terminated by a party upon written notice to the other party if such other party (a) fails to perform any material obligation required of it under the respective Order Form or the Agreement, as applicable, and such failure is not cured within 60 days of receipt of written notice thereof, or (b) files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, and such petition, action or filing is not dismissed within 60 days of such filing, or is adjudicated a bankrupt concern.  Upon an undisputed termination pursuant to clause (a) of the preceding sentence by (i) EAB, all fees due to EAB under the Agreement shall promptly become due and payable and (ii) Organization, EAB will waive (or refund, as applicable) a pro-rata portion of any prepaid fees for the Services (i.e., fees due for the Services to be performed after the termination date) and, in each case, EAB will be released from any further obligation to provide the applicable Services. For purposes of clarity, solely the Order Form under which or in relation to which a party has failed to perform a material obligation of this Agreement or such applicable document may be terminated; an unaffected Order Form may not be terminated.

11. Independent Contractor; Subcontractors

In performing the Services, EAB acts as an independent contractor and not as Organization’s employee or agent.  EAB shall have the right to use third parties, including, without limitation, its affiliates, in performance of its obligations and the Services hereunder. 

12. Assignment; Successors

The Agreement is not assignable by Organization without EAB’s prior written consent. The Agreement is binding upon, and inures to the benefit of, the parties and their respective successors and assigns.

13. Notice

Any notices under the Agreement shall be in writing and sent by overnight courier, mail, or facsimile.  For EAB, notice shall be sent to EAB Global, Inc., Attn:  General Counsel, 2445 M Street, NW, Washington, DC 20037, facsimile number (202) 747-1010.  For Organization, notice shall be sent to the name and address set forth in the Order Form. 

14. Entire Agreement; Amendment

The Agreement consists only of the Order Form, these Terms and any supplemental terms attached hereto and, once executed and delivered by the parties, supersedes in its entirety all other understandings and agreements regarding the provision of the Services. This Agreement constitutes a legal, valid, binding, and enforceable obligation of each party. In the event of an express conflict between any provision of these Terms and of an Order Form, the provision of the applicable Order Form shall control.

15. General

These Terms shall govern and shall take precedence over any different or additional terms and conditions which Organization may have included in any documents attached to or accompanying the Order Form. Any handwritten changes on the face of this document shall be ignored and have no legal effect.

16. Governing Law; Survival

The Agreement is governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of laws rules or the United Nations Convention on the International Sale of Goods.  Each party irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts situated in the District of Columbia, in connection with any action to enforce the provisions of the Agreement, to recover damages or other relief for breach or default under the Agreement, or otherwise arising under or by reason of the Agreement.  Sections 2 through 22 of these Terms, and any provision of the Agreement that by its nature should survive, shall survive the expiration or termination of the Agreement.

17. Headings; Interpretations Construction; Severability

The captions and headings used in the Agreement are inserted for convenience only and shall not affect the meaning or interpretation of the Agreement.  The Agreement shall be construed fairly according to its terms, without regard to the drafter of any provision hereof.  In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to the Agreement:  (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (b) the remaining terms, provisions, covenants, and restrictions of the Agreement shall remain in full force and effect.

18. Force Majeure

EAB shall be excused from performance of its obligations under the Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of God, fire, pandemic, strike, embargo, terrorist attack, war, insurrection, or riot or any other cause beyond the reasonable control of EAB.  Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.

19. Remedies

Except where otherwise specified, the rights and remedies granted to a party under the Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

20. No Waiver

The failure of either party to insist upon or enforce strict performance by the other party of any provision of the Agreement or to exercise any right under the Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.

21. No Third Party Beneficiaries

The parties acknowledge that the covenants set forth in the Agreement are intended solely for the benefit of the parties, their successors, and permitted assigns.  Nothing in the Agreement, whether express or implied, will confer upon any person or entity, other than the parties, their successors, and permitted assigns, any legal or equitable right whatsoever to enforce any provision of the Agreement.

22. Counterparts; Facsimile

The Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Delivery of an executed signature page to the Agreement by electronic communication shall be effective to the same extent as if such party had delivered a manually executed counterpart.