Master Services Agreement
Customer wishes to be provided with the Services (as defined below) by Arcum, Inc. (“Service Provider”) with offices located at 3423 Piedmont Road NE, Atlanta, Georgia 30305. Service Provider agrees to provide the Services to the Customer in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
1. Services.
(a) The Customer hereby retains the Service Provider to provide access to RevMax Studio, a software platform that includes the Retention Manager, Portfolio Manager, and Winback Manager modules (collectively, the “Services”). These tools are designed to help the Customer identify merchants at risk of attrition, gain portfolio-level insights, and re-engage previously lost merchants to support overall portfolio growth and retention.
(b) Through the RevMax Studio platform, the Customer will have access to predictive risk insights, segmentation tools, and re-engagement analytics via an interactive dashboard. All outputs, visualizations, and insights generated by the platform shall be referred to as the “Deliverables.”
(c) The Services provided under this Agreement are software-based and delivered through the Service Provider’s online portal. The Parties acknowledge that the scope of Services may evolve over time, and any material changes shall be documented through a mutually executed written amendment referencing this Agreement.
2. Fees and Expenses.
(a) Fees. As full and complete compensation for performing all Services specified in this Agreement and for assuming all duties, responsibilities, and obligations required by this Agreement, Customer will compensate Service Provider for all fees (the "Fees") incurred in accordance with (i) the terms of this Agreement; and (ii) the fixed rates set forth on Schedule A. Service Provider may increase the Fees, no more than one time each year upon thirty (30) days written notice of such increases.
(b) Billing and Payment. Service Provider shall prepare and submit invoices to the Customer for all Fees on a monthly basis. Customer will pay invoices in U.S. dollars within thirty (30) days of the date of Service Provider's invoice. Customer shall have no right of offset or withholding under this Agreement, other than amounts subject to a good faith dispute, of which Customer has notified Service Provider in writing. If any undisputed amounts due to Service Provider from Customer becomes past due for any reason, Service Provider may at its option and without further notice withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Service Provider's obligations under this Agreement.
(c) Compliance with Laws. Both Parties agree, at their own expense, to operate in full compliance with all Applicable Law, as hereinafter defined. Applicable Law shall mean all governmental laws, regulations and requirements (including without limitation data protection and privacy laws), and all Rules of the Card Associations, each as hereinafter defined, in each case applicable to the duties conducted hereunder. “Rules” shall mean the rules and regulations of the Card Associations including but not limited to the Payment Card Industry Data Security Standard (“PCI DSS”) and Payment Application Data Security Standard (“PA‐DSS”), and any other similar requirements. “Card Association” shall mean MasterCard International, Inc., VISA International, Inc., VISA USA, Inc., and any other card association, debit card network, or similar entity with whom Seller or Processor has a sponsorship agreement. Service Provider shall not store, process, or transmit full credit card data, and must ensure reasonable security measures to protect all Customer Data.
3. Warranty. Other than otherwise provided in this Agreement, Service Provider does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Service Provider warrants that (i) the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices, (ii) all Deliverables provided by Service Provider will be based on commercially reasonable methodologies and free of material errors.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 3. IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. OTHER THAN AS OTHERWISE PROVIDED HEREIN, SERVICE PROVIDER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
4. Ownership of Work Product. Other than as provided in this Section 4, this is not a work-for-hire agreement. All intellectual property rights in all pre-existing works and derivative works of the Service Provider’s systems that form the Services are and shall remain the sole and absolute property of Service Provider. This Agreement does not grant Customer any license to any of the Services. Notwithstanding the foregoing or anything to the contrary, Customer shall retain sole and exclusive ownership of (i) all Customer Data; (ii) all Deliverables, and (iii) all data, summaries, or insights derived from all Customer Data and all Deliverables. All Customer Data, Deliverables and derivatives of the foregoing shall be deemed Customer’s Confidential Information. Service Provider shall not use or retain the Customer Data, Deliverables, or any derivatives thereof for any purpose other than providing the Services under this Agreement, except that Service Provider may use aggregated, anonymized, and de-identified data derived from Customer Data for the limited purpose of enhancing its machine learning models, improving general performance of its services, and deriving insights that do not identify or target Customer or any individual merchant.
For clarity, such data shall not be used to contact or solicit any merchant, nor disclosed to any third party. Other than as expressly stated herein or provided directly to Customer, Service Provider shall not transfer, sell, license, distribute, disclose, or otherwise provide access to Customer Data, the Deliverables, or derivatives therefrom, whether during the term of this Agreement or thereafter. These obligations shall survive termination of this Agreement indefinitely.
5. Confidential Information.
(a) Confidential Information. The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information. “Confidential Information” shall mean (i) information concerning a Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, merchants, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; and (iii) all other non-public information provided by the Disclosing Party hereunder. In no event shall Service Provider’s use or disclosure of information regarding or relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party. Notwithstanding anything to the contrary and for the sake of clarity, all Customer Data and Deliverables shall be deemed Customer’s Confidential Information.
(b) Use of Confidential Information; Standard of Care. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement. Notwithstanding the foregoing or anything to the contrary, Service Provider shall not disclose any Customer Confidential Information to, or engage, any subcontractors, consultants, third party providers, representatives or other persons (“Representatives”) to perform Services under this Agreement without Customer’s prior written consent. Any employees and approved Representative must be contractually bound to: no less restrictive terms regarding confidentiality, non-use, non-solicitation, non-transfer obligations, ownership protections and provisions regarding compliance with Applicable Law as contained in this Agreement. The Receiving Party shall at all times remain responsible and liable for the breaches of this Agreement arising from the acts or omissions of its employees and Representatives Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement, and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of itself or any third party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
Notwithstanding the foregoing, Service Provider may use aggregated, anonymized, and de-identified data derived from Customer Data, which does not identify or reference Customer or any individual merchant, solely for internal purposes related to product improvement, provided such use complies with the confidentiality and data protection obligations set forth in this Agreement.
(c) Exceptions. Confidential Information does not include information that: (a) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (b) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (c) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (d) Receiving Party receives from a third party free to make such disclosure without breach of any legal or contractual obligation, or (e) is disclosed by Receiving Party with Disclosing Party's prior written approval, in Disclosing Party’s sole discretion.
(d) Required Disclosures. If the Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, the Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
(e) Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated or accessed in violation of this Agreement, it will immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination or publication, and take any and all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
(f) Return of Confidential Information. Receiving Party shall promptly return or, at Disclosing Party’s option, destroy and certify the destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement.
6. Indemnification. Each Party agrees to indemnify, defend, and hold harmless the other Party, its employees, directors, managers, members, shareholders, or officers from and against any loss, liability, damage, penalty or expense (including reasonable attorneys' fees and court costs) (“Claim”) which may be claimed by a third party as a result of: (i) any failure by the other Party or any employee, affiliate or Representative of the Party to comply with the terms of this Agreement; (ii) any warranty or representation made by the other Party being false or misleading; (iii) any grossly negligent act, fraud or willful misconduct/malfeasance of the other Party or its employees or Representatives; (iv) any alleged or actual violations by the other Party or its employees or Representatives of Applicable Law; or (v) a claim by a third party that the other Party, affiliates or Representatives has violated such third party’s intellectual property rights, suffered a security breach, data compromise or unauthorized access. An indemnified party shall provide the indemnifying party: (i) reasonably prompt written notice of the existence of a Claim; (ii) control over the defense or settlement of any such Claim, provided that the indemnifying party shall not settle such Claim without the other Party’s prior written consent, which consent shall not be unreasonably withheld, and provided that the indemnified party shall have the right to participate in the defense of any such Claim at its expense and through counsel of its choosing; and (iii) non-financial assistance at the indemnifying party’s request to the extent reasonably necessary for the defense of any such Claim. A failure to comply with this Section 6 shall only affect the indemnifying party’s obligations to the extent such failure materially prejudices the ability to reduce the expenses that may be owed, or to defend a Claim under this Section 6.
7. Limitation of Liability; Actions. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SERVICE PROVIDER’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CUSTOMER TO THE SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE FOLLOWING CLAIMS ARE EXLCUDED FROM THIS LIMITATION OF LIABILITY (I) BREACH OF APPLICABLE LAW, (II) BREACH OF RESTRITIVE COVENANTS (CONFIDENTIALITY/NON-USE/NON-TRANSFER/NON-SOLICITATION OBLIGATIONS), (III) GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT AND (IV) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
8. Cooperation of the Parties. The Parties agree to comply with all reasonable requests of the other Party. The Customer is responsible for assigning a project manager (or key points of contact) that will coordinate communication with Service Provider throughout the period of providing the Services and assist in meeting project deadlines by facilitating data exchange and answering questions. The project manager will ensure that timelines are met, deliverables are approved, data is collected, and that close collaboration on project goals and decisions with Service Provider is maintained. Additionally, the Customer is responsible for internal scheduling, reasonable access to key personnel, on-site administrative support, and reasonable access to past and current data or documentation that would aid the project, subject to the Customer’s reasonable discretion over the sensitive nature of the data requested. The Parties agree to immediately notify the other Party of any information that would impact the success of the project so that rapid action and/or remedies could be considered.
9. Term. This Agreement shall have an initial term of one (1) year from the Effective Date (“Initial Term”), unless earlier terminated in accordance with the provisions in Section 10. Thereafter, the Agreement shall be automatically renewed for additional one (1) year terms (each a “Renewal Term”), unless not less than thirty (30) days prior to the end of the Initial Term or any Renewal Term, either Party notifies the other of its intent not to renew the Agreement. The Initial Term and Renewal Terms, if any, are collectively referred to herein as the “Term”.
10. Termination.
(a) Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
(b) Termination for Bankruptcy, Insolvency or Financial Insecurity. Either Party may terminate this Agreement immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within sixty (60) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors.
(c) Obligations upon Termination. Termination of this Agreement for any reason shall not discharge either Party's liability for obligations incurred hereunder and Fees and other amounts unpaid at the time of such termination. Customer shall pay Service Provider for all Services rendered prior to the effective date of termination. Upon termination each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination.
11. Non-Solicitation.
(a) Employee Non-Solicitation. During the term of this Agreement and for two (2) years following the expiration or termination date of the Agreement, each Party agrees not to directly solicit or induce any employee to leave the employ of the other Party. The Parties are not prohibited from responding to or hiring the other’s employees who inquire about employment on their own accord or in response to a public advertisement or employment solicitation in general.
(b) Merchant Non-Solicitation & Data Protection. Service Provider shall not, at any time, directly or indirectly, solicit, contract with, or attempt to do business with, or refer to another person, any merchant whose data was obtained from the Customer during the term of this Agreement.
(c) No Transfer, Sale, or Disclosure of Customer Data, the Deliverables or its Contents. Service Provider shall not transfer, sell, license, disclose, or otherwise provide access to Customer Data, the Deliverables or its contents to any person for any purpose, whether during the term of this Agreement or thereafter, without Customer’s express prior written consent, which shall be in Customer’s sole and absolute discretion.
12. Use of Name. Each party grants the other a limited, non-exclusive, and revocable right to use its name and logo in promotional materials, press releases, case studies, and other public relations efforts, provided such use is in a positive and professional manner. Any such use must accurately reflect the nature of the business relationship and comply with the branding guidelines of the respective party. Either party may revoke this permission at any time by providing written notice to the other party.
13. General. This Agreement, including the attached Schedules which are incorporated by reference, sets forth the entire understanding of the Parties relating to its subject matter and supersedes any other agreement between the Parties relating to its subject matter. This Agreement may not be amended except in a writing executed by both Parties. Given the sensitive nature of the Customer Data delivered hereunder, neither Party may assign this Agreement without the prior written consent of the other Party, in its sole discretion. All notices under this Agreement will be in writing and will be delivered in person or by mail courier, return receipt requested, to the address set forth in the first paragraph of this Agreement. If any provision of this Agreement is illegal, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal provision is not contained in the Agreement. The Customer shall have the right, upon thirty (30) business days’ prior written notice, to conduct a reasonable audit of Service Provider’s security policies, procedures, and relevant systems solely to verify compliance with the data protection and confidentiality obligations under this Agreement. Such audits shall (i) occur no more than once annually (unless required by applicable law or following a verified material security incident), (ii) be conducted during normal business hours, (iii) be subject to reasonable confidentiality and logistical coordination, and (iv) not unreasonably disrupt Service Provider’s business operations. Customer shall bear its own costs associated with any such audit. In the event of a data breach involving Customer Data that occurs within Service Provider’s systems, Service Provider shall promptly notify the Customer in writing. This notice shall include a summary of the nature of the incident, the scope of affected Customer Data, and the steps being taken to mitigate the breach. Service Provider shall provide reasonable cooperation to Customer as required by applicable law, limited to the extent of Service Provider’s control and access. For the avoidance of doubt, Service Provider’s obligations under this paragraph apply only to data breaches originating in or caused by Service Provider’s infrastructure, personnel, or authorized representatives. No failure or delay on the part of any Party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right. This Agreement will inure to the benefit of and will be binding upon the Parties and their permitted successors and assigns. This Agreement will not be deemed to be for the benefit of any third party. The Agreement will be deemed to be a contract made under the laws of the State of Georgia and will be construed in accordance with the laws of Georgia without regard to principles of conflicts of law. Any dispute arising under or related to this Agreement shall be resolved exclusively in the state or federal courts located in Georgia, and each Party consents to the personal jurisdiction and venue of such courts. The Parties specifically waive the right to a jury trial in connection with any dispute arising out of this Agreement or between the Parties for any reason. Service Provider and Customer will be deemed to be independent contractors and will not be considered to be agent, servant, joint venturer, or partner of the other. If any court holds that a Party has breached this Agreement, then the non-defaulting Party will be entitled to recover expenses incurred in enforcing the provisions of this Agreement, including reasonable attorneys’ fees and costs. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by electronic copies or PDF copies reflecting the Party’s signature, and any such electronic copy or PDF copy shall be sufficient to evidence the signature of such Party as if it were an original signature.
14. Survival. All agreements that by their context are intended to survive the termination of this Agreement including, but not limited to Sections 4, 5, 6, 7, 11, 12, and 13 will survive termination of this Agreement.