Master Service Agreement

This Master Service Agreement ("Agreement") governs client’s acquisition or/and use of Herrmann Products & Services. Capitalized terms have the definitions set forth herein. By accepting this agreement, by (1) clicking a box indicating acceptance or (2) executing an order document that references this agreement. If the individual accepting this agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “client” shall refer to such entity and its affiliates. If the individual accepting this agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this agreement and may not use these services.

1. Term

The term of this Agreement (the "Term") will commence on the date the Client accepts this Agreement (the “Effective Date”) and will expire as provided in the Order Document unless earlier terminated by a Party as provided herein.

2. Definitions

For purposes of this Agreement, the following capitalised terms have the meanings indicated:

“Annual Active Seats” means a paid subscription that gives individuals full access to the Herrmann Platform.

“Application Libraries” means specific collections of Herrmann Works, digital assets organized around specific topics.

“Apps” means the HBDI® App for mobile devices and other software applications that deliver Assessments, Learning Programs and Profile Reports to Thinkers.

“Assessment” means the Herrmann Brain Dominance Instrument® (HBDI®) assessment, Herrmann Team Effectiveness Dashboard, and other diagnostic and data gathering tools delivered by Herrmann for the purpose of measuring the cognition, behavior or biases of Thinkers and any other assessment instruments that Herrmann may deliver to Client in connection with the Services or this Agreement, whether delivered as paper-based forms, via the Herrmann Platform, or in any other medium or format.

“Assessment Results” means the scores and other outputs resulting from a Thinker’s responses to Assessment questions.

“Authorised User” means a Thinker, Certified Practitioner or other person who has an active Platform Tool Subscription under an applicable Order Document.

“Business Day” means Monday through Friday, except for national holidays.

“Certification” means the training program and process whereby a person (who may be an employee of Client) is certified by Herrmann to administer Assessments and to deliver Profile Reports.

“Certified Practitioner” means a person certified by Herrmann to administer Assessments and to deliver Profile Reports.

“Claims” has the meaning set forth in Section 13.a.

“Client Works” means all client-specific works of authorship or content developed by Client in which copyrights are owned by Client or by Client’s licensors (other than Herrmann), but excluding Herrmann Works.

“Work Product” means any work product or content in any medium created individually or jointly by the parties hereunder and which includes both (i) Client Works and (ii) Herrmann Works (including any Application Library components).

“Copyright Act” means the United States Copyright Act of 1976, 17 U.S.C. §§ 101-1332 (2012).

“Deliverables” means all Products and Services to be provided by Herrmann to Client as described in an Order Document.

“Derivative Works” shall mean, with respect to any Herrmann Works, any invention, discovery, concept, data, information, know-how, suggestion, modification, idea, original expression, working model, prototype or other enhancement or improvement, or any derivative work of such Herrmann Works.

“Effective Date” has the meaning set forth in Section 1.

“Herrmann Works” means all works of authorship in which copyrights are owned by Herrmann or its licensors, including but not limited to all of the Products and Services provided hereunder. For clarity, the Work Product shall be deemed Herrmann Works hereunder.

“Herrmann Platform” means Herrmann’s systems and software for administering Assessments and delivering Products and Services; all the contents of the HBDI app, the thinker portal, the practitioner portal and any other Herrmann Materials that are subsequently added to become part of the Herrmann Platform.

“Integrations” means application programming interface (API)-based and other functions and procedures allowing access to, and delivery of, Profile Reports within other software applications.

“Learning Programs” means any training or workshops that utilise any Herrmann Works (including Work Product) in any physical or electronic format.

“Order Document” means Client’s purchase order, a mutually agreed statement of work in substantially the form set forth on the attached Exhibit “A,” or a similar document by which Client orders Products and Services under this Agreement. No document will be deemed to be an Order Document under this Agreement until Herrmann has accepted such document by either signing it or commencing to perform under it.

“Party” means Client or Herrmann, as applicable.

“Personal Data” means any information directly or indirectly relating to, identifying, describing, reasonably capable of being associated with or reasonably linkable to a natural person or household.

“Platform Account” means an account established by an Authorised Person to access and use the Herrmann Platform. “Platform Tool Subscription” means a subscription for an Authorised User to access Platform Tools on the Herrmann Platform. The Platform Tools available to each Authorised User will depend on the terms of the subscription and on the Authorised User’s status as a Thinker, a Certified Practitioner or other status.

“Platform Tools” means (a) tools offered by Herrmann to facilitate the analysis and visualization of aggregated data from Assessments, and (b) all other Products and Services (other than basic access by Thinkers to their Assessments and individual Profile Reports) which are hosted on the Herrmann Platform.

“Products” means the products provided by Herrmann to Client as described in an Order Document, including but not limited to Application Libraries, Apps, Assessment, Herrmann Platform, Integrations and Platform Tools.

“Profile Report” means any report generated by Herrmann, or by a person authorised by Herrmann, based on one or more Thinkers’ Assessment Results, whether delivered as paper-based forms, via the Herrmann Platform or in any other medium or format.

“Services” means the services provided by Herrmann to Client as described in an Order Document.

“Thinker” means a person who participates in an Assessment under this Agreement and an applicable Order Document.

“Thinker Data” means information, including Personal Data, that (a) is used to set up and access a Platform Account or is otherwise provided by a Thinker to Herrmann; or (b) comprises the Assessment Results of a Thinker or Profile Reports containing such Assessment Results.

3. Orders

Client will use an Order Document to place each order for Products and Services under this Agreement, which may be in the form set forth on the attached Exhibit “A” or another form mutually acceptable to the Parties. If the Order Document is the Client's purchase order or a similar document, no pre-printed terms or conditions included in the form will be binding on Herrmann. Such terms are hereby specifically rejected by Herrmann and are null and void. Client is under no obligation to place any order under this Agreement, and Herrmann is under no obligation to accept any order. Changes to Order Documents must be mutually agreed and documented in writings signed by authorised representatives of both Parties.

4. Pricing

Unless otherwise provided in an Order Document, the prices for Products and Services purchased by Client under this Agreement will be Herrmann’s standard prices offered at the time of purchase. All rates and charges for Products and Services are exclusive of travel and lodging-related expenses, shipping and handling charges, and applicable sales, use, VAT and similar transaction taxes imposed by taxing authorities. Such expenses, charges and taxes will be invoiced separately to Client.

5. Invoicing and Payments

Client will pay all undisputed amounts due to Herrmann hereunder within thirty (30) days after the invoice date. Late charges of one percent (1%) per month will be assessed on all undisputed past due balances until paid in full. Such charges will be in addition to, and not in lieu of, any other remedies available to Herrmann hereunder or at law or equity for Client’s failure to make payments when due.

6. Certification of Certified Practitioners

Client will not cause or permit Assessments, Assessment Results, or Learning Programs to be facilitated or delivered by persons other than Certified Practitioners who have executed a CP License Agreement with Herrmann. Client acknowledges that Herrmann charges fees for certification and that Client will not receive a refund of such fees if Herrmann withholds certification from any certification candidate in its reasonable discretion. Herrmann reserves the right to modify its Certified Practitioner certification requirements from time to time in its sole discretion.

7. Cancellation

Certification. If Client cancels a Certified Practitioner candidate’s attendance at a Certification event at least fifteen (15) Business Days before the event is scheduled to begin, Herrmann will waive or refund the fees paid by Client for such candidate, minus a 3% service charge. If Client cancels within fifteen (15) Business Days of an event’s commencement or if the candidate fails to attend, Client will be obligated to pay the entire fee, but may apply such fee toward a future event. For a cancellation with less than four (4) days notice, there will be an additional fee of 10% of the purchase price to rebook the session. Substitution of Certification candidates is permitted if requests are made at least ten (10) Business Days before the event. Thereafter, substitutions will be permitted only in the sole discretion of Herrmann. Notice of all cancellations must be received in writing and will be confirmed. If Client neither attends or cancels, Client is still obligated to pay the fee for the session and any additional fees. Herrmann reserves the right to cancel or reschedule workshops without penalty or liability if there are insufficient bookings, or for reasons outside Herrmann’s control.

E-Certification. If Client cancels a Certified Practitioner candidate’s attendance at an E-Certification event at least seven (7) Business Days before the event is scheduled to begin, Herrmann will waive or refund the fees paid by Client for such candidate, minus a 3% service charge. If Client cancels within seven (7) Business Days of an event’s commencement or if the candidate fails to attend, Client will be obligated to pay the entire fee, but may apply such fee toward a future event. For a cancellation with less than four (4) days notice, there will be an additional fee of 10% of the purchase price to rebook the session. Substitution of Certification candidates is permitted if requests are made at least ten (10) Business Days before the event. Thereafter, substitutions will be permitted only in the sole discretion of Herrmann. Notice of all cancellations must be received in writing and will be confirmed. If Client neither attends or cancels, Client is still obligated to pay the fee for the session and any additional fees. Herrmann reserves the right to cancel or reschedule workshops without penalty or liability if there are insufficient bookings, or for reasons outside Herrmann’s control. The E-certification course is a blended learning course and the asynchronous learning must be completed by the deadline in order to attend the live session. If not completed, the Certified Practitioner candidate will not be allowed to attend and must rebook onto a later course.

Other Events. If Client contracts with Herrmann to provide a Certified Practitioner to facilitate a workshop or other event, Client may cancel or reschedule such engagement without cost or obligation if Client provides written notice to Herrmann more than fifteen (15) Business Days prior to the scheduled commencement of the engagement. If Client reschedules or cancels with fewer than sixteen (16), but more than ten (10) Business Days’ written notice, Client will pay a cancellation fee equal to 50% of the total fee quoted for the Certified Practitioner engagement. If Client reschedules or cancels with ten (10) or fewer Business Days’ written notice, Client will pay a cancellation fee equal to 100% of the total engagement fee.

8. Returns

Except as provided in Section 12.b, if Client desires to return unused physical Products, Client must first obtain a return authorization number from Herrmann within thirty (30) calendar days of receiving such Products. Herrmann will issue a credit to Client upon return of Products that are in new and resalable condition (as determined by Herrmann in its reasonable discretion), but no cash refund will be issued. Client is responsible for all return freight charges. A restocking fee of fifteen percent (15%) of the invoiced price will be deducted from the credit issued. Credits will expire one (1) year after they are issued.

9. Shipping

All Products requiring shipping are shipped freight prepaid and added to Client’s invoice. Risk of loss or damage will pass from Herrmann to Client upon delivery to the specified destination (F.O.B. destination, freight prepaid and added).

10. Ownership and License Grants

Ownership. As between the Parties:

  1. Herrmann retains ownership of all rights, title and interest, including all intellectual property rights, in and to all Herrmann Works;
  2. Client retains ownership of all rights, title and interest, including all intellectual property rights, in and to all Client Works; and
  3. Herrmann will own all copyrights in and to all Work Product, subject to Client’s underlying rights in all included Client Works and subject to the provisions of Section 10.b.iii.
  4. Assessment Results belong solely to the Thinkers to whom they pertain. Profile Reports are confidential, and Thinkers are not required to share their Profile Reports with Client or with anyone else; provided, however, that all Thinkers who participate in shared pair profiles, team profiles or other group activities will have access to reports summarising the group members’ Assessment Results. Notwithstanding the foregoing, Certified Practitioners will have access to the Profile Reports of the Thinkers they work with, and Herrmann may make Thinkers’ Profile Reports accessible to Client if appropriate consents are first obtained from the Thinkers.
  5. All Derivative Works shall be and remain the exclusive property of Herrmann, and Client hereby irrevocably assigns and transfers to Herrmann any and all of Client’s rights, title and interest in and to all Derivative Works. Client waives and further agrees not to assert any moral or comparable rights that Client may have in the Derivative Works, including without limitation, any right to prevent modification, any right to receive attribution of authorship, or any right to control Derivative Works. To the extent that any Derivative Works incorporate any Client Works, Client hereby grants to Herrmann an unrestricted, non-exclusive, perpetual, royalty-free, world-wide, irrevocable and fully transferable license to use, create derivatives of, publish, display or otherwise perform such Client Works. Upon request, Client shall deliver to Herrmann fully executed documents giving full effect to Herrmann’s rights, title and interest as contemplated by this Section 10.

License Grants. Subject to the terms and conditions of this Agreement:

  1. Herrmann hereby grants to Client a limited, non-exclusive, non-transferable, revocable license to (i) access and use the Herrmann Works solely for internal purposes and as specifically described in the applicable Order Documents, and (ii) to copy and distribute the Herrmann Works (1) only to Authorised Users, and (2) only as specified in, and limited by, the applicable Order Documents (e.g., limitations regarding the specific Herrmann Works licensed, quantities, subscription periods, etc.).
  2. Herrmann hereby grants to Client a limited non-exclusive, non-transferable, revocable license to reproduce, modify, and prepare derivative works from, Application Library components to create Work Product only as specified in, and limited by, the applicable Order Documents (e.g., limitations regarding the specific Application Libraries licensed, subscription periods, etc.) solely for Client’s internal use. If Client desires to create any Work Product, Client shall promptly so notify Herrmann in writing with reasonable details.
  3. Herrmann hereby grants to Client a non-exclusive license, during the term of this Agreement, to copy and distribute the Work Product (1) only to Authorised Users, and (2) only as specified in, and limited by, the applicable Order Documents (e.g., limitations regarding the specific Work Product authorised, quantities, subscription periods, etc.).
  4. Client hereby grants to Herrmann a non-exclusive license to include Client Works in Work Product only for the purpose of creating the Work Product and making it available for Client’s use as described in an applicable Order Document. For clarity, Herrmann agrees that it will not distribute or disclose any Client Works included in a Work Product that qualifies as Client’s Confidential Information, and Herrmann will treat it as such.
  5. The license grants in Sections 10.b. ii and iii above are further subject to the following terms and conditions:
    1. Client will retain all Herrmann copyright notices on all copies of Application Library components made by Client, and Client will include the following copyright notice in a prominent location in each copy of any Work Product made by Client:

Portions of these materials are © [Year] Herrmann Global LLC. Used under license.

  1. Upon expiration or earlier termination of the time period during which Client is authorised to make and distribute copies of Application Libraries or Work Product under the applicable Order Document (if such time period is not extended or renewed in writing by the parties prior to termination or expiration), Client will (a) immediately cease to make or distribute any further copies, (b) destroy or delete any copies then remaining in Client’s possession (not including any copies that have previously been properly distributed to Authorised Users as described in the Order Document), and (c) upon request by Herrmann, provide written certification that Client has completed items (a) and (b).
  1. Herrmann hereby grants to Client a limited nonexclusive, non-transferable, revocable license to use Integrations only as specified in, and limited by, the applicable Order Documents (e.g., subscription periods, etc.).
  2. Notwithstanding the termination of this Agreement or any applicable Order Document, Authorised Users may perpetually retain and use copies of Herrmann Works, Application Library components, and Work Product properly distributed to them in accordance with this Section 10.b.

11. Prohibited Use

Client acknowledges that Assessments and Profile Reports are not designed or intended for any purposes related to hiring, firing, promotion, layoff, compensation, benefits, job assignments, or similar activities, and Client will not use the Assessments or Profile Reports for any such purposes or for any illegal or discriminatory purposes. Except as otherwise expressly provided herein or approved in writing by Herrmann, Client shall not, and nothing in this Agreement shall be construed to grant to Client or any third party any right to copy, modify, distribute, disclose, demonstrate, implement, sell, offer for sale, create derivative works based upon, sublicense or otherwise use the Herrmann Works or any portion thereof, and Herrmann hereby expressly reserves all other rights.

12. Warranties and Disclaimers

  1. Herrmann warrants that:
    1. Herrmann has full power and authority to provide the Deliverables and to grant the license rights described herein;
    2. the Deliverables, when used in accordance with the terms and conditions of this Agreement, will not infringe or otherwise violate any patents, copyrights, trademarks, trade secrets or other intellectual property rights of any third parties, and will be free from defects in materials and workmanship when delivered;
    3. Herrmann will use commercially reasonable up-to-date industry-standard software and detection methods to minimise the risk of transmission of a harmful virus or computer program by Herrmann to any Client computer system; and
    4. all Services will be performed by Herrmann in a professional manner, consistent with the standard of skill and care exercised by professionals within Herrmann’s industry on projects of comparable scope and complexity, and in conformance with the requirements of this Agreement and applicable Order Documents.
  2. As Client’s sole remedy for defective Products, Herrmann will replace such Products upon their return to Herrmann and will assume ground freight charges for their return for a period of thirty (30) days after receipt by Client. As Client’s sole remedy for defective Services, Herrmann will re-perform such Services at times and locations mutually agreed by the Parties.
  3. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 12, THE PRODUCTS, SERVICES, ASSESSMENTS AND ALL OTHER DELIVERABLES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND HERRMANN DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING THE WARRANTY SET FORTH IN SECTION 12.a.iii, HERRMANN DOES NOT WARRANT THAT THE DELIVERABLES OR THEIR METHODS OF DELIVERY WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS INTRODUCED BY THIRD PARTIES.

13. Indemnification

  1. By Herrmann. Herrmann will indemnify Client and Client’s owners, directors, employees, agents and representatives ("Client Indemnified Parties"), and will hold them harmless, from all claims, losses, liens, demands, attorneys' fees, damages, liabilities, costs, expenses, obligations, causes of action, or suits, (collectively “Claims”) to the extent that such Claims are caused by or arise from (i) third party trademark or copyright infringement disputes arising from such Client Indemnified Parties' authorised use of the Deliverables in accordance with the terms herein, except to the extent that such infringement is attributable to Client Works incorporated into such Deliverables (ii) the illegal act, gross negligence or willful misconduct of Herrmann or its employees or agents (iii) property loss, damage, personal injury or death, sustained by a Client Indemnified Party to the extent caused by Herrmann or its employees or agents in connection with this Agreement and (iv) any breach by Herrmann of Section 16.
  2. By Client. Client will indemnify Herrmann and Herrmann’s owners, directors, employees, agents and representatives ("Herrmann Indemnified Parties"), and will hold them harmless, from all Claims to the extent that such Claims are caused by or arise from (i) third party trademark or copyright infringement claims arising in connection with such Herrmann Indemnified Parties' use of Client Works in any manner permitted under this Agreement or an applicable Order Document (ii) Client’s use of Assessments or Profile Reports in any manner prohibited under Section 11 (iii) the illegal act, gross negligence or willful misconduct of Client or its employees or agents, (iv) property loss, damage, personal injury or death, sustained by a Herrmann Indemnified Party to the extent caused by Client or its employees or agents in connection with this Agreement and (v) any breach by Client of Section 16.a.
  3. Procedure. Promptly after a Party (the “Indemnified Party”) has received notice of any Claim which the Indemnified Party believes in good faith is an indemnifiable Claim under this Agreement, the Indemnified Party will give the other Party (the “Indemnifying Party”) written notice of such Claim, but failure to so notify the Indemnified Party will not relieve the Indemnifying Party from any liability it may have to the Indemnified Party except to the extent that the Indemnifying Party is materially prejudiced by such failure. Such notice will state the nature and the basis of the Claim to the extent then known. The Indemnifying Party will have the right to defend and settle the Claim, at its own expense and by its own counsel as long as the Indemnifying Party pursues the Claim diligently and in good faith. If the Indemnifying Party undertakes to defend or settle the Claim, it will promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party will reasonably cooperate with the Indemnifying Party and its counsel in the defense or settlement thereof. Such cooperation of the Indemnified Party will be at the cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle the Claim, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party will not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of the Claim; provided, however, that the Indemnified Party (i) will be entitled, at its expense, to participate in the defense of the Claim and the negotiations of the settlement thereof and (ii) will, if (A) the Indemnifying Party has failed to assume the defense and employ counsel or (B) if the defendants in the Claim include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party concludes that there may be reasonable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party or that the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying Party, have the right to select separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party as incurred. Notwithstanding any other provision of this Agreement, the Indemnifying Party will not settle any indemnified Claim without the consent of the Indemnified Party, unless the settlement imposes no liability or obligation on the Indemnified Party and includes a complete release of the Indemnified Party from liability.

14. Limitation of Liability

Except with respect to the Parties’ obligations to indemnify one another, as set forth in Section 13, a Party’s breach of Section 10, Client’s breach of Section 11, a Party’s breach of Section 18, or a Party’s gross negligence or willful misconduct, neither Party’s liability to the other Party in connection with this Agreement will exceed an amount equal to the amount paid by Client to Herrmann during the one-year period immediately preceding the occurrence giving rise to the liability.

Except with respect to the Parties’ obligations to indemnify one another, as set forth in Section 13, a Party’s breach of and their respective obligations under Section 10, Client’s breach of Section 11, a Party’s breach of Section 18, or a Party’s gross negligence or willful misconduct, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) ARISING FROM THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15. Insurance

  1. Herrmann will maintain in full force and effect during the Term the following minimum insurance coverage:
    1. Worker’s compensation insurance with respect to all employees of Herrmann as and to the extent required by any applicable law and employer’s liability coverage of at least: Bodily Injury by Accident: $1 million Each Accident Bodily Injury by Disease: $1 million Policy Limit Bodily Injury by Disease: $1 million Each Employee
    2. Employer’s Liability Insurance with a minimum limit of $1 million per accident and a minimum policy limit of $1 million for bodily injury by disease.
    3. Commercial General Liability ("CGL") insurance in the minimum amounts of: General Aggregate (except Products-Completed Operations Limit): $5 million Products-completed Operations Aggregate Limit: $ 5 million Personal and Advertising Injury Limit: $ 2 million Each Occurrence Limit: $ 2 million
    4. Business Automobile Liability Insurance covering the use of all owned and hired autos with a minimum limit of $1 million combined single limit for bodily injury and property damage per occurrence.
    5. All CGL Insurance and Business Automobile Liability Insurance will designate Client as additional insured, through a blanket endorsement, with respect to liability because of bodily injury or property damage arising out of the Services.
  2. The foregoing coverages will be maintained with insurance carrier(s) that have an A.M. Best rating of A- or better, and/or an equivalent rating from a recognized insurance company rating agency.
  3. Herrmann's policies will be primary, and any insurance maintained by Client is excess and noncontributory. Herrmann agrees that Herrmann, and anyone claiming by, through, or on Herrmann’s behalf will have no claim, right of action or right of subrogation against Client based on any loss or liability insured against or under the foregoing insurance.
  4. Upon request, Herrmann will furnish certificates of insurance to Client. Herrmann will deliver written notice of any cancellation or reduction of coverage to Client promptly upon Herrmann’s receipt of such notice from its carriers or broker.

16. Compliance with Laws and Rules

  1. Each party will comply, and will ensure that its employees and agents comply, with all laws, statutes, codes, ordinances, and regulations, including, without limitation all personal information protection and data security laws of all federal, country, international, state and local governmental authorities applicable to its performance under this Agreement.
  2. When performing Services at Client’s offices, worksites or other locations of Client, Herrmann will comply, and will ensure that its employees and agents comply, with all rules, policies and procedures which Client has notified to Herrmann in writing prior to Herrmann’s acceptance of the Order Document pertaining to such Services.

17. Personal Data Protection

Each party will comply fully with all data security and privacy laws applicable in every jurisdiction in which the party operates or in which the party controls or processes Personal Data in connection with this Agreement, including, without limitation the EU General Data Protection Regulation (GDPR). Each party will ensure that it has a lawful basis for all processing of Personal Data it undertakes in connection with this Agreement, and each party will indemnify the other party and the other party's directors, executives, employees, agents and representatives and hold them harmless, from any and all claims and liabilities (including reasonable attorneys' fees) which may arise from the indemnifying party's failure to comply with applicable data protection and privacy laws.

The Parties agree that with respect to Thinker Data, Herrmann will assume the role and perform the obligations of a “controller,” “business” or similar role under applicable laws (and not the role and obligations of a “processor,” “service provider,” or similar role).

The terms of that certain Data Protection Addendum (DPA) entered into by and between the parties are hereby incorporated herein and further specify each party’s obligations with respect to Personal Data and information management. Nothing in the DPA shall be construed to limit either party’s obligations as set forth herein.

18. Confidential Information

Herrmann and Client agree that the following will constitute ''Confidential Information'': (a) information relating to this Agreement; (b) information of a party that is of such a nature that a reasonable person would believe it to be confidential or proprietary information; and (c) information that either party has received from a third party under an obligation of confidentiality. Notwithstanding the foregoing, the following information will not be deemed to be Confidential Information: (w) information that is now, or hereafter becomes, generally available to the public through no fault of the receiving party; (x) information that is known by the receiving party prior to the disclosure with no obligation of confidentiality; (y) information that becomes known to a party through a third party that is under no obligation not to disclose it; and (z) information that is independently developed by a party without use of, or reference to, the Confidential Information of the other party. During the Term of this Agreement, and thereafter for a period of two (2) years, or, if sooner, until the Confidential Information no longer qualifies as such under this Section 18, each party agrees to maintain the other party’s Confidential Information as strictly confidential and not to, directly or indirectly, disclose or reveal it to any third party, or seek to use it for any purpose, except for the purposes contemplated in this Agreement or as required by a court or government authority of competent jurisdiction after first notifying the disclosing party of such disclosure requirement.

19. Termination

This Agreement may be terminated: (a) by either party for convenience, upon fifteen (15) Business Days written notice to the other party, (b) by written notice from either party in the event the other party materially defaults in the performance of its obligations hereunder, which default has not been substantially cured within fifteen (15) Business Days after written notice has been given to the defaulting party specifying the default, (c) immediately by written notice from Herrmann to Client in the event Client has breached the terms or conditions of any license granted in Section 10, and (d) immediately by either party if the other party ceases to conduct business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of any proceeding under the Federal Bankruptcy Code or any other law or regulation of any jurisdiction relating to insolvency or the protection of rights of creditors, or fails to have stayed, within sixty (60) days, any involuntary proceeding brought against it under such laws or regulations.

If a party terminates this Agreement for convenience in accordance with item (a) in the preceding paragraph, all Deliverables yet to be delivered under any Order Document in effect at the time of such termination will nevertheless be delivered by Herrmann and will be paid for by Client in accordance with all terms and conditions of such Order Document, and this Agreement will continue to govern the parties with respect to such Order Document and all deliveries and payments to be made thereunder.

20. Force Majeure

Each party will be excused from performance hereunder (except for the payment of money due) for any period and to the extent that it is prevented from performing its obligations, in whole or in part, as a result of delays caused by an “act of God,” or other circumstances beyond its reasonable control, and such nonperformance shall not be a default hereunder or, except as provided in this Section, a ground for termination. The party excused by the force majeure event will use its best efforts to alleviate the consequences of such event. If the force majeure event continues to prevent the performance of a material obligation for more than fifteen (15) Business Days, the party having the right to receive the affected performance will have the right to terminate this Agreement upon written notice to the other party.

21. Relationship of the Parties

The parties are independent contractors. Neither this Agreement nor any terms and conditions contained herein will be construed as creating a partnership, joint venture or agency relationship. Neither of the parties has any authority to bind the other or otherwise to act in any way as the representative of the other party except as expressly agreed in this Agreement or in another writing.

All employees of Herrmann will be subject to the direction, supervision, and control of Herrmann. Herrmann will be fully responsible for the acts of its employees and will ensure that all employees comply with all applicable provisions of this Agreement. Herrmann will pay the compensation of its employees and will pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees.

22. Survival

The provisions of Sections 2,10.a, 11, 12, 13, 14, 17, 18, 22, 23, and 25 will remain in effect after termination or expiration of this Agreement.

23. Governing Law

This Agreement and all matters relating to this Agreement will be governed by and construed in accordance with the laws of the United States and the State of North Carolina, excluding its conflicts of law rules.

24. Waiver

No delay or omission by either party to exercise any right or power under this Agreement will impair such right or power or be construed to be a waiver thereof. A waiver by either of the parties of any of the covenants to be performed by the other or a waiver of any breach will not be effective except pursuant to a written instrument signed by the parties and will not be construed as a waiver of any subsequent breach or of any other covenant herein contained.

25. Enforcement

If any provision of this Agreement is ruled unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. If either party brings an action against the other party to enforce its rights under this Agreement, the prevailing party will be entitled to recover its actual attorneys’ fees and expenses incurred in resolving such action, whether by lawsuit or otherwise, fees and expenses incurred in connection with any appeal.

26. Assignment

Neither party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other party, whose consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, a party may assign this Agreement to a successor to substantially all of its capital stock or assets (whether by sale, merger or otherwise), without the consent of the other party; provided that if any benefits to the assigning Party or any burdens to the non-assigning Party are materially increased, the Parties will make equitable adjustments to this Agreement to account for such changes.

27. Notice

All notices permitted or required under this Agreement will be in writing and will be sent to the address of the recipient set out below, or such other address as the recipient may designate by notice given in accordance with this section. Any such notice may be delivered by hand, by overnight courier or by first class pre-paid letter, and will be deemed to have been received (i) if delivered by hand, at the time of delivery (ii) if delivered by overnight courier, 24 hours after the date of delivery to courier with evidence of delivery from the courier or (iii) if delivered by first class mail, three (3) business days after the date of mailing.

For: Herrmann International, Inc
Attn: Legal Notices
1639 College Ave., Suite 150, PMB 111
Spindale, NC 28160

28. Additional Provisions

[_________]

29. Execution

This Agreement may be accepted by the parties through a click-to-accept mechanism, electronic signature, or similar electronic means, each of which will be deemed valid and binding. Acceptance in this manner will constitute execution of this Agreement and will be considered as effective as an original signature. This Agreement may be executed in one or more counterparts, all of which, taken together, shall constitute one and the same instrument.

30. Entire Agreement; Modifications

This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes the terms and conditions of any agreement prior to the date hereof or any preprinted terms of a purchase order submitted at any time. This Agreement will mutually benefit and be binding upon the parties and their respective successors and assigns. This Agreement may not be modified except by a writing signed by both parties.