Master Services Agreement

BY CLICKING “I AGREE” OR USING THE SERVICES (DEFINED BELOW) MADE AVAILABLE BY ZESTFUL, INC. (“ZESTFUL”), THE ENTITY IDENTIFIED AS THE CUSTOMER IN THE ZESTFUL ORDER FORM SIGNED BY BOTH PARTIES OR OTHERWISE AGREED TO DURING THE ZESTFUL ONLINE SIGN-UP PROCESS THAT REFERENCES THIS AGREEMENT (EACH AN “ORDER FORM”) (“CUSTOMER”) IS AGREEING TO BE BOUND BY AND BECOME A PARTY TO THIS MASTER SERVICES AGREEMENT (“AGREEMENT”). THE AGREEMENT WILL BECOME EFFECTIVE ON THE EARLIER OF THE DATE CUSTOMER ACCEPTS THIS AGREEMENT OR FIRST USES THE SERVICES (THE “EFFECTIVE DATE”). IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT USE OR ACCESS THE SERVICES. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. IF THE PARTIES HAVE ENTERED INTO A WRITTEN AND PEN-SIGNED AGREEMENT REGARDING THE SUBJECT MATTER HEREOF, THAT AGREEMENT WILL SUPERSEDE THIS AGREEMENT TO THE EXTENT OF ANY CONFLICT.

Subject to the terms and conditions of this Agreement and Customer’s payment of all applicable fees, Zestful will provide the subscriptions, licenses, services, or other offerings (“Services”) specified in the Order Form or otherwise ordered by Customer during the Zestful online sign-up process. The Services include access to the software-as-a-service application identified in any Order Form that allows Authorized Users (as defined below) to access certain features and functions of the Services (the “Zestful Platform”). To the extent of any conflict between this Agreement and an Order Form, this Agreement will control, except to the extent the Order Form expressly identifies a provision of the Agreement to be superseded by the Order Form. 

1. Services.

1.1 Provision of Services. Subject to Customer’s payment of the fees set forth in the applicable Order Form (“Fees”), Zestful will provide the Services to Customer.

1.2 Access to the Zestful Platform. Subject to the terms and conditions of this Agreement, Zestful hereby grants to Customer a non-sublicensable, non-transferable (except as provided in the Assignment Section), non-exclusive license, during the Term (defined below), to access and use the Zestful Platform in accordance with the limitations (if any) set forth in the applicable Order Form solely for Customer’s internal business purposes. 

1.3 Authorized Users. Customer may permit employees or contractors of Customer’s organization (“Authorized Users”) to access and use the features and functions of the Zestful Platform as contemplated by this Agreement. Customer acknowledges and agrees that its Authorized Users’ access to and use of the Services is subject to Zestful’s Terms of Service located here: https://zestful.com/terms-of-service (the “Terms of Service”). Each Authorized User will be required to accept the Terms of Service prior to being able to access and use the Services. Customer is responsible for use of the Services by its Authorized Users and for their compliance with the Terms of Service. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Zestful Platform, and notify Zestful promptly of any such unauthorized use known to Customer.

1.4 Hosting. Zestful will, at its own expense, provide for the hosting of the Zestful Platform, provided, however, that Customer will be responsible for obtaining and maintaining any telecommunications or computer network hardware required by Customer or any Authorized User to access the Services from the Internet.

1.5 Restrictions. Customer will not, and will not permit any Authorized User or other party to (a) modify, make derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the Zestful Platform; (b) use, evaluate, or view the Services for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Services; (c) interfere in any manner with the operation of the Zestful Platform or the hardware and network used to operate the Zestful Platform; (d) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Services; or (e) otherwise use the Services in any manner that exceeds the scope of use permitted under this Agreement, or in a manner inconsistent with applicable law or the technical materials provided by Zestful to Customer in hard copy or electronic form describing the use and operation of the Services (the “Documentation”).

1.6 Stripe Connected Account Agreement. By creating a Zestful account, Customer agrees to be bound by the terms and conditions of the Stripe Connected Account Agreement located here: https://stripe.com/connect-account/legal. 

1.7 Support Services. Subject to the terms and conditions of this Agreement, Zestful will provide its standard technical support services to Customer by Customer emailing support@zestful.com.

1.8 Professional Services. Zestful will provide any professional Services hereunder in a professional and workmanlike manner substantially consistent with general industry standards. 

2. Intellectual Property.

2.1 The Services. The Services are licensed, not sold. Zestful and its suppliers exclusively own and retain all rights, title, and interest in and to the Services (including software, user interface designs, and documentation) and all additions and modifications to the Services, including all intellectual property rights therein.  

2.2 Customer Data. “Customer Data” means all data (including Personal Data as defined below), information, reports, policies, and other content imported to the Services or otherwise provided to Zestful or its contractors by or for Customer or any Authorized User in connection with Customer’s or its Authorized Users’ use of the Services, and all data and information received by or for Customer or any Authorized User from Customer’s or its Authorized Users’ use of the Services, including, but not limited to, any User Content of your Authorized Users (as defined in the Terms of Service. As between the parties, Customer exclusively owns and retains all rights, title and interest in and to the Customer Data, except for pre-existing Services components contained in such Customer Data (e.g., incident report templates). Customer hereby grants to Zestful and its authorized representatives and contractors a non-exclusive and non-transferable (except as provided in the Assignment Section) right and license to use, process, store, and transmit, and disclose Customer Data solely to provide the Services to Customer and fulfill other obligations described in this Agreement. Customer further authorizes Zestful to anonymize Customer Data and to aggregate Customer Data with similar data from other Zestful customers in a manner that does not identify Customer or include any Personal Data, to further develop and provide products and services for Zestful customers.

2.3 Usage Data. Zestful may collect and analyze certain data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (“Usage Data”), and Customer acknowledges and agrees that Zestful may (during and after the Term) to (a) internally use such Usage Data, and (b) disclose such Usage Data solely in aggregate or other de-identified form in a manner that does not identify Customer or include any Personal Data, in each case to further develop and provide products and services for Zestful customers. Common examples of Usage Data may include employee transactions, engagement rates, and amount of dollars spent within the Zestful Platform.

2.4 Customer Name and Logo Use. During the Term, Zestful may include Customer’s name and logo in Zestful’s standard marketing materials and customer lists.

3. Fees and Taxes.

3.1 Fees. Customer will pay all Fees in accordance with the terms of this Agreement and the applicable Order Form. Unless otherwise set forth in the applicable Order Form, all Fees due hereunder will be paid in U.S. dollars, and will be due within thirty (30) days of the date of the invoice therefor. Should Customer require a PO to purchase, such PO must be issued within ten (10) days of the Order Effective Date (as defined in the applicable Order Form). 

3.2 Subscription Fees. The Fees will include the per month subscription fee set forth in the applicable Order Form (the “Subscription Fees”). Customer will be responsible for setting each Active Employee’s card balance/allowance (the “Employee Balance”) on the Zestful Platform. The sum of all such Employee Balances minus the amount of any transactions conducted by such Active Employees will be referred to as the “Allocated Balance”. Customer will be responsible for maintaining a fund balance with Zestful to be used by Zestful to fund any transactions made by Customer’s Active Employees (the “Current Balance”). At any given time, Customer’s Current Balance must be equal to at least fifty percent (50%) of the then-current Allocated Balance (the “Target Balance”).

3.3 Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes on Zestful’s net income. If Zestful has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, Zestful will invoice Customer and Customer will pay that amount unless Customer provides Zestful a valid tax exemption certificate from the appropriate taxing authority. 

4. Term and Termination.

4.1 Term. This Agreement will commence on the Effective Date and, unless earlier terminated in accordance with the Termination for Cause Section below, will remain in effect so long as any Order Form remains in effect, or, if no such term is specified in an applicable Order Form, for a period of one (1) year from the Order Effective Date (collectively, the “Term”). 

4.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party is in material breach of this Agreement and such breach remains uncured for thirty (30) days following the breaching party’s receipt of written notice of such breach.

4.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason, (a) all licenses granted to Customer hereunder shall immediately terminate; and (b) any amounts owed to Zestful under this Agreement will become immediately due and payable. Termination of the Agreement will be without prejudice to either party’s rights to seek recovery of damages or pursue any other remedies it may have hereunder or under applicable law. The Restrictions, Intellectual Property, Fees and Taxes, and Effect of Termination Sections, as well as all Sections from and including Confidentiality through General Provisions, will survive the expiration or termination of this Agreement for any reason. 

5. Confidentiality.

Each party acknowledges that the Confidential Information (as hereinafter defined) of the other party may contain information valuable to the Disclosing Party, and each party that receives such Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) agrees that Confidential Information will remain the property of the Disclosing Party. Receiving Party will not make use of Disclosing Party’s Confidential Information, except as authorized by this Agreement and to the extent necessary for performance or enforcement of this Agreement; and Receiving Party will keep Disclosing Party’s Confidential Information confidential and not disclose to any third party, except to such Receiving Party’s employees and contractors who need to know such information in order for such party to perform this Agreement and only to the extent they are bound by confidentiality and non-use obligations not less restrictive than this Agreement. If Customer provides any feedback, comments, or ideas to Zestful regarding the Services or improvements thereto, Customer agrees that Zestful will be free to use, disclose, and exercise any rights in the same in connection with its products and services. “Confidential Information” means all information that is, or should be reasonably understood to be, confidential or proprietary information of the Disclosing Party (and its suppliers, contractors and customers), including without limitation information concerning its business, products, services, finances, employees, contractors, software, notes, documentation, tools, processes, protocols, product designs and plans, customer lists and other marketing and technical information; whether disclosed orally or in writing by any other media. Confidential Information includes all software and Documentation included in the Services, Customer Data, and excludes information that (a) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (b) is independently developed by a party without reference to the Confidential Information of the other party; (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was communicated to the Receiving Party; or (d) is rightfully obtained by a party from a third party without restriction on use or disclosure. Notwithstanding the foregoing, the Receiving Party will not be in violation of this Section with regard to disclosure of Confidential Information in response to an order or subpoena of a court, agency or tribunal of competent jurisdiction, or pursuant to any applicable law or regulation, provided that the Receiving Party provides the Disclosing Party with prior written notice of such disclosure to the extent reasonably practicable and legally permissible in order to permit the Disclosing Party to seek confidential treatment of such information.

6. Representations and Warranties; Disclaimer.

6.1 Representations and Warranties. Each party represents and warrants to the other party that (a) it has and will have full right and authority to enter into this Agreement and to grant the rights provided hereunder, (b) this Agreement will be enforceable against it, and (c) the entry into and performance of this Agreement by it do not contravene other agreements, laws, or orders to which it is subject. Customer represents and warrants that Customer will not make or publish any representations, warranties, or guarantees to any Authorized Users. 

6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS REPRESENTATIONS AND WARRANTIES; DISCLAIMER SECTION, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, ZESTFUL DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS OR THAT THE ZESTFUL PLATFORM WILL BE UNINTERRUPTED, SECURE, COMPLETE, ERROR-FREE, OR FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR THAT ALL DEFECTS WITH RESPECT TO THE SERVICES WILL BE CORRECTED.

7. Indemnification.

7.1 By Zestful. Zestful will defend at its expense any suit brought against Customer, and will pay any settlement Zestful makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party (a “Claim”) alleging that the Services infringe such third party’s intellectual property rights. This section states the sole and exclusive remedy of Customer and the entire liability of Zestful, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

7.2 By Customer. Customer will defend at its expense any suit brought against Zestful, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a Claim (a) alleging that Authorized User’s use of the Services fails to comply with applicable laws regarding employee benefits, (b) arising out of or relating to Customer Data, or (c) by any Authorized User relating to or arising from such Authorized User’s use of the Services, excluding any claim resulting from any breach by Zestful of the Terms of Service. This section states the sole and exclusive remedy of Zestful and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.

7.3 Indemnification Procedure. Each party’s indemnification obligation above is subject in each instance to the indemnified party (a) promptly giving notice of the Claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnified party will have the right to approve any material liability imposed on and borne by the indemnified party in connection with such settlement); and (c) providing to the indemnifying party all available information and reasonable assistance in connection with the defense or settlement of any such Claim.

7.4 Exceptions. Notwithstanding the foregoing, Zestful will not have any indemnification obligations pursuant to this Agreement to the extent any Claim arises from (a) any use of or access to the Services by Customer or its Authorized Users not in accordance with this Agreement, the Terms of Service, or as specified in the Documentation; (b) use of the Services with other products, software or materials not furnished by Zestful where the Services would not themselves be infringing; (c) the modification or improvement of the Services by Customer or any third party; or (d) any continued use by Customer of an allegedly infringing item or continued allegedly infringing activity by Customer after Zestful has replaced or modified the item or instructed Customer to modify the activity so that it becomes non-infringing.

7.5 Replacement or Modification. Should the use of any Services or portion thereof be enjoined or threatened to be enjoined or determined to be infringing any third party intellectual property right, Zestful will notify Customer and, at Zestful’s expense Zestful may: (a) procure for Customer the right to continue use of the Services as contemplated under this Agreement, (b) replace or modify the Services to be non-infringing, or (c) if “(a)” or “(b)” are not economically feasible for Zestful, then Zestful will have the right to terminate the obligations with regards to such Services.

8. Limitation of Liability

EXCEPT FOR BREACHES OF THE CONFIDENTIALITY SECTION, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, FINES OR PENALTIES, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON THE BASIS OF WHICH ANY CLAIM FOR DAMAGES IS BROUGHT, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT OR STATUTE, EVEN IF SUCH PARTY  HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO OBLIGATIONS PROVIDED IN THE INDEMNIFICATION SECTION, AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE APPLICABLE ORDER FORM, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER UNDER OR IN RESPECT OF THIS AGREEMENT EXCEED THE EQUIVALENT OF TWELVE (12) MONTHS OF FEES PAID OR PAYABLE FOR SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL ZESTFUL’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. THESE LIMITATIONS OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. 

9. Compliance with Law.

In performing its obligations or exercising its rights under this Agreement, each party will comply with all applicable laws and government regulations at all times, including, but not limited to, any applicable laws and regulations of the United States and other jurisdictions relating to export or re-export of technology, consumer protection, information access, privacy, and, with respect to Customer, relating to employment benefits.

10. General Provisions.

10.1 Independent Contractors. The parties are independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement.

10.2 Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

10.3 Waiver. Neither party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of both parties. Except as otherwise set forth in this Agreement, no failure to exercise or delay in exercising any rights arising from this Agreement will operate or be construed as a waiver thereof.

10.4 Force Majeure. With the exception of any monetary obligations under this Agreement, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of God or any governmental body, war or national emergency, riots or insurrection, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power or telecommunications under third-party control.

10.5 Notice. To be effective, any notice required to be given under this Agreement will be given in writing, addressed to the applicable party (at the address set forth in the Order Form) and hand delivered, which is effective upon delivery; sent by reputable overnight courier, which is effective on the business day following deposit with such courier; or sent by the United States mail, first class postage prepaid, which is effective on the third business day after deposit in the United States mail. Each party may change its address for receipt of notice by giving notice of such change to the other party.

10.6 Governing Law and Venue. This Agreement will be governed and construed in accordance with the laws of the State of Colorado without giving effect to any principles that may provide for the application of the law of any other jurisdiction. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in Denver, Colorado (except where such courts do not have jurisdiction), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. In the event of litigation arising out of this Agreement, the prevailing party will be entitled to its costs and reasonable attorneys’ fees.

10.7 Assignment. Neither party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement to a successor who acquires substantially all of the assets or equity of such party through purchase, merger or other transaction without the other party’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement.

10.8 Entire Agreement. This Agreement (together with any Order Forms) constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in a writing duly executed by authorized representatives of both parties. Any standard terms associated with a Customer purchase order or other order document (e.g., general terms and conditions attached to the purchase order form) will be not binding on the parties and of no consequence whatsoever in interpreting the parties’ legal rights and responsibilities as they pertain to Services provided under this Agreement. Similarly, any terms required to be accepted electronically through any Customer vendor enrollment, login, invoice submission, or other, process will not apply to this Agreement, are expressly rejected by the parties, and form no basis for any agreement between the parties; notwithstanding any indication of “agreement” to such terms, no such agreement is formed between the parties and the parties acknowledge that only authorized representatives of the parties may enter into agreements between the parties or amendments to this Agreement. This Agreement expressly overrides the Terms of Service solely with respect to Customer’s use of the Services.