MuleSoft Vendor Services Agreement
This MuleSoft Vendor Services Agreement (the "Agreement" or “VSA”) sets forth the terms and conditions under which the Vendor will provide services to MuleSoft, MuleSoft’s customers and/or MuleSoft’s affiliates as set forth in the applicable Scope of Work (“SOW”) which references this Agreement.
1. SERVICES. Vendor agrees to provide the services (“Services”) and provide deliverables (“Deliverables”) as set forth on each SOW.
2. TERM OF AGREEMENT.
2.1 The term of this Agreement will be from the Effective Date (as set forth in the SOW) and will continue unless terminated earlier as provided in this Agreement.
2.2 This Agreement and/or any SOW may be terminated by MuleSoft at any time upon ten (10) days written notice. Upon breach of this Agreement, the non-breaching party may terminate this Agreement upon ten (10) days prior written notice and an opportunity to cure.
2.3 Section 4, 5, 7, 8, 9, 10, 11, and 12 will survive termination of this Agreement.
3.1 MuleSoft agrees to pay for Services, Deliverables, and expenses as provided on each SOW. All expenses must be pre-approved by MuleSoft and are subject to MuleSoft’s travel policy.
3.2 Following written Acceptance pursuant to section 6.1, Vendor will invoice MuleSoft for the applicable Services and Deliverables at the address set forth in the Agreement, in an amount determined in accordance with the SOW. Payment for undisputed Services, Deliverables, and expenses, if any, will be made within forty-five (45) days of receipt of invoice. All invoices must reference the project ID or number of the applicable SOW. Vendor shall be solely liable for any federal, state, or local withholding, or other payroll taxes relating to performance of the Services under this Agreement or any SOW.
4.1 As used in this Agreement, the term “Confidential Information” means all code, inventions, know-how, business, technical and financial information that one party (“Receiving Party”) receives from the other party (“Disclosing Party”) prior to and after the Effective Date and that is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure, including, without limitation, financial and business plans, marketing plans, know-how, customers, distributors, suppliers, and business processes. Additionally, any business ideas or strategies developed by Vendor under this Agreement or disclosed to Vendor or otherwise made available, directly or indirectly, to Vendor, whether written, graphic, oral, visual, tangible or intangible, in any form or format shall be deemed Confidential Information of MuleSoft without any marking or further designation. Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without breach by the Disclosing Party of any obligation owed to the Receiving Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement, provided such prior knowledge can be adequately substantiated by documentary evidence antedating the disclosure by Disclosing Party; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; or (iv) is independently developed by Receiving Party. All Confidential Information is and will remain the sole and exclusive property of Disclosing Party.
4.2 Receiving Party may not use the Confidential Information except, if Vendor is the Receiving Party, as required to provide the Services and Deliverables or, if MuleSoft is the Receiving Party, to fulfill its obligations under this Agreement. Except for as expressly set forth herein, the Receiving Party shall not, directly or indirectly, communicate or in any way divulge to any other person or entity any Confidential Information without the prior written consent of Disclosing Party. In addition, Receiving Party may not disclose to any third party the existence of any negotiations between Receiving Party and Disclosing Party. Each party agrees that disclosure of Confidential Information may be made only to its employees, agents, representatives and authorized contractors (collectively, “Representatives”) who have a specific need to know such information and who have entered into agreements which will protect the Confidential Information on terms no less restrictive than the terms of this Agreement. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
4.3 Upon the request of MuleSoft, but in any event upon termination of this Agreement, Vendor will surrender to MuleSoft all Confidential Information, memoranda, notes, records, drawings, manuals, computer software, and other documents or materials (and all copies of the same) pertaining to the materials generated or developed by Vendor or furnished by MuleSoft to Vendor in connection with the Services.
5. OWNERSHIP OF MATERIALS.
5.1 MuleSoft shall own the rights to MuleSoft’s Property. “MuleSoft’s Property” shall mean any and all intellectual property of MuleSoft and any Services or Deliverables provided by Vendor hereunder. Vendor agrees, in consideration for payment by MuleSoft for Services and Deliverables provided hereunder, that all right, title and interest to such materials (either in whole or in part) conceived, devised, developed discovered, invented or reduced to practice (the “Works”) in connection with this Agreement or any SOW are “works made for hire” under the Copyright Act of 1976 (“Act”). Any such Works shall be the sole and exclusive property of MuleSoft, and MuleSoft shall be the sole author of such Works within the meaning of the Act. Such Works (in whatever medium) shall be the sole and exclusive property of MuleSoft as consideration for any and all compensation paid to Vendor hereunder and Vendor hereby expressly disclaims any and all interests in such Works. If all intellectual property right in any Work are not the property of MuleSoft by operation of law, Vendor hereby, and without further consideration, irrevocably transfers, assigns, and conveys to MuleSoft all right, title and interest in all Works conceived, devised or developed by Vendor pursuant to this Agreement, including, without limitation, all copyrights, patentable inventions, trade secrets, and moral rights, without further compensation or the necessity of any further actions.
5.2 “Pre-existing Vendor Property” shall mean Vendor’s proprietary software or materials existing prior to the date of or developed outside the scope of a SOW and this Agreement, and all intellectual property rights therein and which is licensed to MuleSoft. Pre-existing Vendor Property remains the exclusive property of Vendor. Vendor hereby grants to MuleSoft a perpetual, irrevocable, fully paid up, royalty-free, non-exclusive, worldwide, right and license to use all Pre-existing Vendor Property to and for internal MuleSoft business use. Such license grant applies only to the specific Pre-existing Vendor Property that is actually used in connection with or incorporated into the Services, Deliverables, or Works and does not extend to any other Pre-existing Vendor Property.
6. ACCEPTANCE TESTING.
6.1 MuleSoft shall have the right to review each Deliverable to determine whether it conforms to its applicable Specifications and any other functions, specifications and descriptions of the Deliverable set forth in any materials, documentation and technical information relating to the Deliverable, and to ensure that the Deliverable can be effectively utilized and, if applicable, is fully functional in MuleSoft’s operating business environment (collectively, the “Acceptance Criteria”). Additional Acceptance Criteria may be set forth in a SOW.
6.2 If MuleSoft determines that the Deliverables have not successfully completed acceptance testing, MuleSoft may, at its option, either terminate this Agreement or the particular SOW (in which case Section 6.3 shall apply), or request Vendor to make such necessary corrections and modifications to the Deliverables as will permit the Deliverables to be ready for retesting no later than ten (10) days from the date of MuleSoft’s notice that the Deliverables failed to conform. If the Deliverables still fail to pass the acceptance tests, MuleSoft shall promptly notify Vendor in writing, and shall have the right, at its option, to terminate this Agreement or the particular SOW by giving written notice of such termination to Vendor (in which case Section 6.3 shall apply).
6.3 Upon MuleSoft’s termination of this Agreement or a particular SOW after failure of any of the acceptance tests, MuleSoft may, in its sole discretion, either: (i) return to Vendor, at Vendor’s expense, or de-install and cease all use of, the Deliverables, and shall have the right to a refund of all fees paid allocable to such defective Deliverables and any other Deliverables that function with, or are integrated or used with, the defective Deliverable; or (ii) retain ownership and possession of the non-conforming Deliverables, receive a refund of fees in an amount that is proportionate to the non-delivered and non-conforming portion of the Deliverables, and be relieved of any future payments due for such Deliverables.
7. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
7.1 Vendor represents and warrants that: (a) it has the right to enter into this Agreement; (b) it has entered into agreements with all contractors and employees to assign all right, title and interest in and to the Deliverables to Vendor; (c) the Deliverables will not infringe any third party intellectual property rights; (d) it will perform the Services in a workmanlike manner in accordance with generally accepted industry standards; (e) providing the Services will not violate any agreements including, without limitation, noncompetition and confidentiality agreements and that it will not enter into any such agreements that would conflict with providing the Services; (f) it will not disclose any confidential information of any third party that it does not have the right to disclose; (g) it will not make unauthorized copies of software of other parties, or incorporate into any products or utilize in performing the Services any intellectual property owned by other parties that has not been licensed for such purpose; (h) it will not store or transmit material in violation of third-party privacy rights or violate any other applicable laws in relation to the Services; or (i) any software supplied by Vendor will not contain any open source technology or any software or other materials that are designed to disrupt, disable, harm, or impair operation (“Harmful Code”).
7.2 Vendor certifies that neither Vendor nor its employees have been: (i) charged with a criminal offense in connection with obtaining, attempting to obtain, or performing of a public (Federal, state or local) contract or subcontract, (ii) listed by a governmental agency as sanctioned, debarred or voluntarily withdrawn as a result of a settlement agreement, (iii) proposed for debarment or suspension or otherwise excluded from federal program participation, (iv) been convicted of or had a civil judgment rendered against them regarding dishonesty or breach of trust, including but not limited to, the commission of a fraud including mail fraud or false representations, violation of a fiduciary relationship, violation of Federal or state antitrust statutes, securities offenses, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property; or (v) within a three (3) year period preceding the date of this Agreement, had one or more public transactions (federal, state or local) terminated for cause or default. Vendor acknowledges and agrees that it has a continuing obligation to notify MuleSoft in writing within seven (7) business days if any of the above-referenced representations change. Vendor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Vendor further acknowledges and agrees that any misrepresentation of its status or any change in its status at any time during the term of this Agreement may be grounds for immediate termination of this Agreement, at the sole discretion of MuleSoft. Failure to comply with any requirement of this provision shall be cause for termination for breach and Vendor shall be liable for actual and consequential damages.
7.3 Vendor will indemnify and hold MuleSoft harmless from and against any loss, damage and expense arising from any and all threatened or actual third party claims, demands or actions based upon any breach of these warranties, any breach of this Agreement, any negligent actions or omissions, liability for any such taxes imposed on MuleSoft by relevant taxing authorities or any allegation that any portion of the Deliverables infringes any patent, copyright, or trade secret of any third party unless such infringement is a direct result of the written instructions of MuleSoft.
8. LIMITATION OF LIABILITY.
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, MULESOFT’S TOTAL LIABILITY AND VENDOR’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY MULESOFT’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE PRICE PAID BY MULESOFT TO VENDOR FOR THE SPECIFIC SERVICES FROM WHICH SUCH CLAIM ARISES.
8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL MULESOFT HAVE ANY LIABILITY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
9. PUBLICITY. Vendor agrees not to publicize or disclose to any third party without the consent of MuleSoft, either the terms of this Agreement or the fact of its existence and execution, except as may be necessary to comply with other obligations stated in this Agreement. Any public references to MuleSoft or use of any MuleSoft logo are prohibited without MuleSoft’s prior written approval.
10. EMPLOYMENT. Vendor agrees not to solicit, recruit, or employ any MuleSoft employee or contractor for a minimum period of one (1) year from time/date Vendor last works with MuleSoft or any of MuleSoft’s customers.
11.INSURANCE. Vendor shall maintain throughout the term of this Agreement: (i) commercial general liability insurance, written on an occurrence basis, on a combined single limit of US $1,000,000 per occurrence for bodily injury or property damage/US $3,000,000 annual aggregate, which insurance shall include broad form property damage and contractual liability endorsements; (ii) professional liability (errors and omissions) insurance in an amount not less than US $2,000,000 per occurrence and (iii) statutory workers' compensation insurance (unless the Vendor is a sole proprietorship) with Employers' Liability limits of US $500,000 per occurrence, written by insurance companies with a Best's rating no less than A-VII. Upon MuleSoft’s request, Vendor shall provide certificate(s) of insurance evidencing the required overages to MuleSoft, Inc., 77 Geary St, Suite 400, San Francisco, CA 94108. The certificates shall add MuleSoft as an additional insured with respect to the commercial general liability coverage and provide that MuleSoft be given thirty (30) days' prior notice of any material amendment, cancellation or termination.
12. GENERAL TERMS.
12.1 Vendor agrees that it will be acting as an independent contractor and will not be considered or deemed to be an agent, employee, joint venture, or partner of MuleSoft. Vendor will have no status as employee or any right to any benefits that MuleSoft grants its employees
12.2 Vendor may not subcontract, assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of MuleSoft, except in the case of a merger or sale of all of substantially all of its assets or stock.
12.4 Vendor acknowledges that MuleSoft is a publicly-traded company and that United States securities laws prohibit any person who has material, non-public information about a publicly-traded company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell securities of such company.
12.5 This Agreement is intended by the parties hereto to be the final expression of their agreement with respect to the subject matter hereof, and it constitutes the full and entire understanding between the parties with respect to the subject of this Agreement. This Agreement may be amended only in a writing signed by both parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Vendor invoice or other Vendor documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
12.6 In case one or more of the provisions of this Agreement will be held invalid, illegal or unenforceable in any respect for any reason, the same will not affect any other provision in this Agreement, which will be construed as if such invalid or illegal or unenforceable provision had not been contained in this Agreement.
12.7 None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of a party, its agents, or employees, but only by an instrument in writing signed by an authorized officer of the party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
12.8 This Agreement is made under, and in all respects will be interpreted, construed, and governed by and in accordance with, the laws of Delaware without regard for its choice of law provisions. Both parties hereby consent to the exclusive jurisdiction of the courts in San Francisco, CA and expressly waive any objections or defense based upon lack of personal jurisdiction or venue.
12.9 All notices required under this Agreement must be in writing and are effective on the date received. Notices to MuleSoft will be sent to the Legal Department, MuleSoft, Inc., 77 Geary St, Suite 400, San Francisco, CA 94108. Notices to Vendor will be sent to Vendor’s address listed at the beginning of this Agreement.