Master Sales Agreement

V20240411

This Master Sales Agreement (“Agreement”) is entered into by and between Zivaro, Inc. (“Zivaro”) a Colorado corporation having its principal place of business at 3900 E. Mexico Ave, Suite 1000, Denver, CO 80210, and the client (“Client”), effective as of the date on which Client accepts a Zivaro SOW or Quote.

WHEREAS, Zivaro will provide products and or services to Client in accordance with the terms and conditions set forth herein. 

NOW, THEREFORE, Zivaro and Client, who may herein also be collectively referred to as the “Parties” or each as a “Party”, agree as follows:

1.0 Scope. Zivaro as requested by Client, will provide Client with Statement(s) of Work (“SOW”) and or Quotation(s) (“Quote”) that will outline the description, pricing, and terms of the products and or services that Client will procure from Zivaro. Each SOW or Quote accepted by Client is hereby incorporated into the terms and conditions of this Agreement. Additional terms specific to product and or service to be provided will be detailed in each SOW or Quote.

2.0 Effective Date and Term of the Agreement. This Agreement shall commence on the date set forth above, and shall remain in effect for as long as any SOW or Quote is effective hereunder, until terminated by either Party per the terms of Section 5.3 of this Agreement.

3.0 General Obligations of Zivaro under this Agreement

3.1 Developed Work Products: Assignment of Rights, Title and Interest. Upon full payment by Client of amounts owed to Zivaro under any SOW, Zivaro shall assign to Client any and all rights, title and interest, including without limitation any copyright and other intellectual property rights, in all deliverable work product identified in and developed under such SOW, including without limitation all tangible and intangible items or information incorporated therein (“Deliverables”), but excluding all third party works and products incorporated or embedded in the Deliverables. Any Deliverable that is a work of authorship in any form of expression, are works for hire and belong exclusively to Client. If, by operation of law, the ownership of works for hire does not automatically vest in Client, Zivaro will take steps necessary to assign ownership to Client.

3.2 Product, Software, OEM Support and Maintenance Purchases. All product, software, and OEM support and maintenance purchased by Client from Zivaro, shall be for Client’s internal use only, unless otherwise approved in writing by Zivaro and the OEM for resale. The product, software, and OEM support and maintenance purchased shall be subject to the terms and conditions provided on the Zivaro Quote or at time of delivery, to include end-user subscription agreements or other end-user agreements (collectively, “EULA”). All software licensing purchases will auto-renew unless a fixed term is specified on the Quote. Once a Quote for product, software, or OEM support and maintenance has been accepted by Client, the purchase is final unless cancellation or return is pre-approved by Zivaro and OEM per Zivaro’s Cancellation and Return Policy available at https://zivaro.com/cancellation-and-return-policy/

The EULA for a third-party product shall be solely between Client and the licensor of the third-party product. Client agrees to comply with the terms of any applicable EULA, and Client shall be fully liable for any violation of the applicable EULA.

3.3 Warranty for Zivaro Services. Zivaro warrants that the services provided under this Agreement shall be performed by qualified and experienced personnel and, will be of the kind and quality to meet the specifications and schedules described in the SOW or Quote. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED, AND ZIVARO SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. CLIENT AGREES THAT FOR BREACH OF THE ABOVE WARRANTIES, CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND ZIVARO’S SOLE AND EXCLUSIVE LIABILITY, SHALL BE THE RE-PERFORMANCE OF ITS SERVICES WITHIN THIRTY (30) DAYS OF NOTICE OF SUCH BREACH, AND IF ZIVARO FAILS TO RE-PERFORM THE SERVICES AS WARRANTED, THEN CLIENT SHALL BE ENTITLED TO RECOVER AN AMOUNT UP TO THE FEES PAID TO ZIVARO FOR SUCH SERVICES.

3.4 Warranty of Third-Party Product. Zivaro does not make any representations or warranties, express, implied, or otherwise, regarding any third-party product. Client expressly acknowledges and agrees that its use of a third-party product is at Client’s sole risk and that third-party products are recommended and or supplied by Zivaro “as is” and without warranty of any kind from Zivaro, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, title, or noninfringement. CLIENT’S ENTIRE REMEDY WITH RESPECT TO A THIRD-PARTY PRODUCT WILL BE LIMITED TO ANY RECOURSE AVAILABLE AGAINST THE LICENSOR THEREOF IN THE APPLICABLE EULA.

3.5 Client Property. Zivaro shall exercise all due care with regard to all Client property under the control of or being used by Zivaro in performance of this Agreement, and shall identify, maintain appropriate records, verify, protect, and safeguard such property. If any Client property is lost, damaged, or otherwise found to be unsuitable for use while being used by or under the control of Zivaro, Zivaro shall make an appropriate and timely report to the Client with regard to such property, and shall negotiate with Client, in good faith, an appropriate settlement relating thereto.

3.6 Invoicing. Zivaro shall invoice Client on such terms and schedules as shall be described in the SOW or Quote. Each invoice will, as applicable, identify the services or products provided. In addition, Zivaro will invoice Client for all other direct, non-labor charges, if any, for reasonable expenses incurred by Zivaro and pre-approved by Client. Such charges may include travel, lodging, automobile rental, meals and incidentals, publications (printing, graphics), purchased hardware and software, shipping charges, and miscellaneous materials and services required to perform the services.

4.0 General Obligations of Client under this Agreement

4.1 Payment/Taxes/Disputes. Client shall pay all undisputed amounts invoiced by Zivaro without right of set-off within thirty (30) days of the date of the invoice. These terms supersede any and all previous oral and/or written instructions or agreements, including any terms on Client purchase orders. To the extent that the terms of this Agreement conflict with Client’s billing practices, Client acknowledges that the terms of this Agreement will govern.
In the event Client disputes any invoice, Client shall: (a) pay all undisputed portions as provided herein, and (b) notify Zivaro, in writing, within five (5) days of receipt of invoice of the amount disputed and the reasons for such dispute. The Parties shall thereafter cooperate in good faith to resolve such dispute and make any adjustments mutually agreed upon. Client shall pay Zivaro all amounts determined to be owed to Zivaro by Client within five (5) days upon resolution of such dispute. Zivaro specifically reserves the right to assign all or any part of the proceeds of this Agreement to a third-party.

If Client has not paid Zivaro’s invoices within thirty (30) days of receipt for three (3) consecutive months, interest may accrue retroactive to the first invoice paid late or unpaid, at the rate of one and one-half percent (1.5%) per month.

The charges by Zivaro under this Agreement and the related SOW(s) or Quotes (s) do not include taxes or duties. If Zivaro is required to pay or collect any federal, state, local, value added, goods and services, or any other similar taxes or duties based on services and or products provided under this Agreement, then such taxes and or duties shall be invoiced to Client; this requirement, however, shall not apply to taxes based on Zivaro’s income. Client agrees that it shall reimburse Zivaro for any and all costs and expenses, including attorneys’ fees, incurred by Zivaro in connection with the collection by Zivaro of any amounts payable by Client hereunder which are not paid as and when due.

4.2 Cooperation. Client agrees that where participation by its own staff is necessary in Zivaro’s provision of the services, such staff shall possess the appropriate skill, experience, and authority for the tasks assigned to them, and shall be available at such times as are agreed by the Parties. Client agrees to designate a member of its staff who shall have the authority to represent Client on all matters relating to the services.

4.3 Environment and Facilities. As applicable to the services rendered by Zivaro, Client will provide Zivaro with: a) a safe and suitable environment in which to perform services, b) use of data communications and telecommunication facilities as reasonably necessary to perform the services, and c) the right, under Client’s license or agreement with each third-party licensor of software utilized by Client and relating to the applicable SOW or Quote, for Zivaro to perform its services with respect to such software. Client shall indemnify and hold harmless Zivaro from all costs, claims, expenses, damages, and or liability that Zivaro incurs as a result of any failure or claimed failure by Client to provide the rights referenced in this paragraph.

4.4 Grant of License. As required, Client shall grant to Zivaro a non-exclusive, royalty-free limited license during the term of this Agreement to use, reproduce, distribute, display, perform, encode, and transmit Client communications and data, and Client Intellectual Property for the purposes of providing services hereunder.

5.0 General Terms and Conditions

5.1 Confidentiality. In the course of performing the services, either Party (the “Disclosing Party”) may use and disclose to the other Party (the “Receiving Party”) software, other products, methodologies, trade secrets, confidential information, and proprietary information of the Disclosing Party (“Proprietary Materials”) that may or may not be licensed under separate agreements. The Receiving Party agrees to safeguard and keep confidential the Proprietary Material, and to use such Proprietary Materials only internally in the course of the Receiving Party’s business. The Receiving Party will limit the use of, and access to, the Proprietary Materials to the Receiving Party’s employees whose use of, or access to, the Proprietary Materials is necessary for the Receiving Party’s internal business use. The Receiving Party will have in effect, and will enforce, rules and policies designed to protect against unauthorized use or reproduction of the Proprietary Materials and other confidential information, including instruction of and written agreements with the Receiving Party’s employees and contractors to ensure that they use and protect the Proprietary Materials in a manner which protects the Disclosing Party’s proprietary rights. The Receiving Party shall not provide access to the Disclosing Party’s Proprietary Materials to any third party unless such third party has a “need to know” in connection with the performance of its obligations hereunder or under any SOW or Quote, and has signed a confidentiality agreement with the Disclosing Party.

5.2 Non-Compete. During the term of this Agreement and for a period of one (1) year from the Effective Date of termination of this Agreement, Client agrees not to directly or indirectly provide or offer services which compete with the services that Zivaro has provided or has been contracted to provide to Client under this Agreement.

5.3 Termination.

5.3.1 Insolvency, Bankruptcy. In the event of insolvency of either Party, the filing of a petition in bankruptcy by or against either Party (which has not been removed within 60 days from such filing), the appointment of a receiver, assignment for the benefit of creditors, or a Party’s failure to meet any of its responsibilities hereunder, the other Party may terminate this Agreement or any SOW or Quote, may refuse to provide or may suspend services hereunder, and may also exercise any or all other rights and remedies provided by law. In the event of Client’s failure to make any payment due hereunder, Zivaro may terminate this Agreement or any of the SOWs, refuse to provide or suspend, and exercise any or all other rights and remedies provided by law.

5.3.2 By Client/For Cause. Client may immediately terminate this Agreement for cause if Zivaro materially fails to comply with the terms of this Agreement, and does not correct said failure within thirty (30) days of written notice from Client specifying the non-compliance. If this Agreement is terminated for cause by Client, Client shall be obligated to make payment for all services completed and Client approved expenses incurred up through the effective date of termination as described in each SOW or Quote still in progress. Notwithstanding the forgoing, product, software, or OEM support and maintenance purchased by Client is non-cancellable and all fees and expenses as described in the SOW or Quote shall become due immediately. 

5.3.3 By Client/No Cause. Client may terminate this Agreement other than for reasons of cause, but shall be required to provide to Zivaro a notice of sixty (60) days prior to the effective date of termination. In such event, Client shall be obligated to make payment for all services completed and Client approved expenses incurred up through the effective date of termination as described in each SOW or Quote still in progress. Notwithstanding the forgoing, product, software, or OEM support and maintenance purchased by Client is non-cancellable and all fees and expenses as described in the SOW or Quote shall become due immediately.

5.3.4 By Zivaro. Zivaro may terminate this Agreement immediately if Client fails to perform according to the terms of the Agreement, including the failure to pay charges when due. If Zivaro terminates this Agreement on this basis, Client shall pay to Zivaro all outstanding fees and expenses which are due up through the effective date of termination, as such fees and expenses are described in the SOW or Quote.

5.3.5 Return of Equipment after Termination. Client shall return any equipment, software, manuals or other documentation to Zivaro within five (5) days of the date of termination.

5.3.6 No Solicitation for Hiring of Employees. During the term of this Agreement and for twelve (12) months from its effective date of termination, neither Party will solicit for employment any employee or contractor of the other which was directly involved in the services performed hereunder. Remedy for violation of the terms of this section of the Agreement may include, but shall not be limited to, the following: direct and indirect damage due to lost revenue, hiring and training of replacement employees, related attorney fees, and court costs.

5.4 Relationship of Parties. In performing this Agreement, Zivaro is acting as an independent contractor and not as an employee or agent of Client. Each Party agrees that there is no relationship of agency, partnership, joint venture, employment between the Parties, and that each has no authority hereunder to assume or create any obligation or responsibility, expressed or implied, on behalf of or in the name of the other Party.

5.5 Assignment of Rights and Interests. No Party shall transfer or assign any or all of its rights or interests under this agreement or delegate any of its obligations without prior written consent of the other Party; provided, however, that Zivaro may transfer or assign its rights or interests, or delegate its obligations, under this agreement to any of Zivaro’s other divisions, business units, subsidiaries or affiliates without the prior written consent of Client. A change of control or ownership of either party shall not be deemed as an assignment.

5.6 Limitations. Except for liability infringement as may be described elsewhere in this Agreement, the entire liability of Zivaro to the Client, whether in contract, tort, strict liability, or otherwise, with respect to any SOW or Quote shall not exceed the amount paid by Client under the relevant SOW or Quote which gave rise to the liability.

5.7 Force Majeure, etc. Neither Party shall be liable to the other for any loss, injury, delay or damage whatsoever suffered or incurred by the other Party due to causes beyond such Party’s control, including but not limited to, acts of God, strikes or other labor disturbances or third parties, war, sabotage, and any other cause or causes, whether similar or dissimilar to those herein specified, which cannot be controlled by such Party.

Notwithstanding the foregoing, the provisions of this Section 5.7 shall at no time operate to excuse Client from any payment obligations required by the terms of this Agreement when the same are due.

5.8 Governing Law, Jurisdiction, Survivability, Etc. This Agreement shall be construed in accordance with the internal laws of the State of Colorado (irrespective of its choice of law principles). If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, the remaining provisions of this Agreement shall survive and remain in full force, and the remainder of this Agreement and the application of such provision to other persons or circumstances shall be interpreted so as to best effect the intent of the Parties.

Any claim, controversy, or dispute arising out of or relating to this Agreement, to performance by either Party hereunder, or to the threatened, alleged, or actual breach of this Agreement by either Party, which is not disposed of by mutual agreement within a period of thirty (30) days after one Party has provided written notice of the claim, controversy, or dispute to the other, shall be subject to executive level review by Zivaro and Client. Each Party shall appoint an executive level officer to meet for the purpose of endeavoring to resolve such dispute. If this review process is not successful within a reasonable period of time, then the dispute shall be arbitrated before a single arbitrator mutually agreed to by the Parties; provided, however, that if the Parties cannot reach agreement on the selection of an arbitrator then each party shall select a neutral party. The neutral parties shall then convene and select a single arbitrator by whatever procedures such neutral parties shall agree.

Any such arbitration shall be held within the City and County of Denver, Colorado (or elsewhere if mutually agreed by the Parties) and shall be administered pursuant to the JAMS Comprehensive Arbitration Rules and Procedures then in effect unless the Parties agree in writing to the JAMS Streamlined Arbitration Rules and Procedures. The decision of the arbitrator shall be final and conclusive upon the Parties. Judgment upon an award rendered by the arbitrator may be entered in any court of competent jurisdiction. Other than an action to enter judgment upon, or otherwise enforce, the decision of an arbitrator, neither Party shall institute any action or proceeding against the other Party in any court with respect to any claim, controversy, or dispute which is or could be subject to this Section.

Notwithstanding the sections immediately above, either Party may seek relief in a State or Federal Court in Colorado for damages and or equitable relief, including injunctive relief without the need to post bond, for matters arising under Sections 5.1 (“Confidentiality”), 5.3.6 (“No Solicitation for Hiring of Employees”), 5.12 (“Public Disclosures”), and or the Non-Disclosure Agreement. As to any matters heard at court, each party submits to personal jurisdiction over them in State or Federal Court in Colorado, and waives any objection (including as to forum non conveniens) to any proceeding therein.

In the event of any litigation between the Parties, the prevailing party in any final judgment of a court shall be entitled to reimbursement for all reasonable attorney’s fees, expert fees, court costs and all other third-party costs of the litigation incurred by the prevailing party.

5.9 Notices. Any notice under this Agreement will be in writing and will be delivered personally, sent by facsimile transmission, sent by express courier, or sent by registered post (return receipt requested). Any such notice will be deemed given when actually received and will be addressed to such Party at the address set forth on the initial page of this Agreement for Zivaro, and the address provided by Client to Zivaro as part of Client’s registration with Zivaro as a new Client. Either Party may change its address for notices upon giving ten (10) days’ written notice of the change to the other party given in the manner provided above.

5.10 Waiver and Time Limitations for Actions. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for indemnification, or breach of either Party’s intellectual property or confidentiality rights, no action, regardless of form, arising out of this Agreement may be brought by either Party more than two years after the cause of action has been discovered.

5.11 Costs Relating to Breach or Default. In the event of any breach of, or default under, this Agreement, the non-breaching or non-defaulting Party, as applicable, shall be entitled to recover from the other Party all of its Losses (as defined below) resulting from such beach of, or default under, this Agreement by the other Party.

For purposes herein, “Losses” means loses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however, that “Losses” shall not include (i) punitive damages, except in the case of fraud or to the extent actually awarded to a governmental authority or other third party or (ii) lost profits or consequential damages, in any case.

5.12 Indemnification. Each Party shall, at its own expense, indemnify, defend, and hold harmless the other Party, and such Party’s employees, directors, officers, members, managers, representatives, and agents (collectively referred to as the “Indemnified Parties”) against any Losses, including Losses related to any other proceeding brought by a third party against the Indemnified Parties (collectively referred to as “Claims”), to the extent that such Claim is based on or arises from the breach of any representation, warranty, covenant or agreement of the indemnifying Party contained in this Agreement or arising out of or related to any damage to tangible property, personal injury or death caused by such Party’s negligence or willful misconduct. In addition, Client shall indemnify, defend, and hold harmless the Zivaro Indemnified Parties against any Claim that the Client infringed any Intellectual Property right of any third party, or any right of publicity or privacy, or is libelous or defamatory. The indemnifying Party will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the Indemnified Parties in connection with or arising from or attributable to any such Claim. The indemnifying Party’s obligations under this Section shall be subject to reasonably prompt notice of any such Claim and permitting the indemnifying Party, through its counsel, to answer and defend such Claim. The Indemnified Parties, at their own expense, shall have the right to employ separate counsel and participate in the defense thereof. In no event may either Party enter into any third-party agreements that would in any manner affect the rights of, or bind, the other Party in any manner to such third party, without the prior written consent of the other Party.

5.13 Export Control. Notwithstanding any other provision of this Agreement, each Party shall retain responsibility for its compliance with all applicable export control laws and economic sanctions programs relating to its respective business, facilities, and the provision of services to third parties.

5.14 Public Disclosures. All media releases, public announcements, and public disclosures by either Party relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material, but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing Party, shall be coordinated with and approved by the other Party prior to release. Notwithstanding the foregoing, Zivaro may list Client as a client of Zivaro and describe in general terms the services and or product provided under this Agreement in proposals, websites, case studies, other marketing materials, that shall include disclosure of testimonials and references provided by Client.

6.0 Construction of Agreement. The Parties have read and fully understand the terms of this Agreement. The rule of construction providing that ambiguities in a contract shall be construed against the drafter shall not apply.

7.0 Complete Agreement. This Agreement constitutes the complete and exclusive statement of the Parties’ agreement about the services and or product to be provided under respective SOW or Quote, and supersedes all prior communications relating to the subject matter. Additional or conflicting terms on any future Client purchasing documents are hereby rejected. This Agreement can be modified only in writing signed by an authorized signatory of each of the Parties. The section titles contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Both Zivaro and Client have read this Agreement, understand it, and accept its terms. The undersigned each represent and warrant that they each have the authority to enter into and execute this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but which together will constitute one and the same Agreement.