Master Service Agreement (MSA)
Version 6.0 as of July 12th, 2023
This MASTER SERVICE AGREEMENT (the "Agreement") is made and entered into on the effective date (the "Effective Date") as set out in Order Confirmation between Contractor as set out in Order Confirmation (the "Contractor", "Maestra B.V.") and Company as set out in Order Confirmation (the "Customer"). Contractor and Customer are also referred to as "Party" and collectively as "Parties".
DEFINITIONS
The following words have the meanings set out below:
"Accounting period" means one calendar month.
"Client" means any person whose Personal Data are transferred to the Maestra Service by the Customer for the purposes of processing.
"Client information" means any information about potential, current or former Clients, connected to the Client’s profile in the Maestra Service with a unique identifier.
"Client actions" means information about Client’s tracked actions or outbound interaction from the Customer to the Client.
"Client segments" means data about relation of the particular Client to a set of criteria (Segment) set in the Maestra Service.
"Controller" means the Customer, being the natural or legal person, public authority, agency or other body which, alone or jointly with others, who determines the purposes and means of the processing of Personal Data.
"Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
"Data Subject" means the individual to whom Personal Data relates.
"Force majeure event" means any act of nature or the elements, terrorism, insurrection, revolution or civil strife, civil war or hostile action, labor strikes, acts of public enemies, laws, rules, and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, material or equipment shortages, or any other causes (except financial) beyond the control of either party.
"Intellectual Property Rights" means any and all registered and unregistered rights, granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Means of Communication" means an email in case the emails are sent from the domains specified in the details in Article 12 hereof, as well as services such as Intercom, Basecamp, and others agreed by Parties.
"Maestra Service" means the internet-based Maestra software technology that is accessible via a web browser through the internet access, and the related services. The Maestra Service is provided on a subscription basis, as a Software-as-a-Service.
"Maestra Service Rates" means the rates of the Maestra Service subscription stated in the Annex № 1 hereto.
"Personal Data" means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
"Personal Data Processing Agreement" means data processing terms agreed by Parties stated in Annex № 2 hereto.
"Processing" means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
"Processor" means the Contractor, being the legal person who processes Personal Data on behalf of the Controller.
"SLA" means Service Level Agreement incorporated hereto by reference and published on the Contractor’s website. SLA defines the quality metrics of the Maestra Service, for example, time of availability of the Maestra Service and speed of email sending as well as limits of Contractor’s responsibility — maximum amount of Contractor’s responsibility for SLA violation (compensation) and method of its receipt by the Customer (discount for the Subscription to Maestra Service).
"Subscription to Maestra Service" means subscription to the Maestra Service provided to the Customer by the Contractor.
"Term" means the period of time during which this Agreement is in effect.
GENERAL PROVISIONS
The Subscription to Maestra Service is provided in accordance with this Agreement. Through the Subscription to the Maestra Service the Contractor processes Personal Data of Clients. In terms of General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) (hereinafter — "GDPR") Contractor is a Processor.
The Customer understands and agrees that the Maestra Service processes the Customer’s Client information — citizens of the EU, unless otherwise agreed by the Parties.
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Аll intellectual Property Rights associated with Maestra Service belong to the Contractor or its affiliated and\or subsidiary entities, or its or their respective licensors.
Except for the limited rights granted to the Customer by this Agreement during the Term, nothing herein grants the Customer title (or any other rights or interests) in or to the Maestra Service or any Intellectual Property Rights associated therewith.
The Customer uses the Maestra Service on its own to perform the respective activities e.g. to create a segment, to launch a campaign or send emails.
The Customer may use the Maestra Service for sending electronic messages to Clients (e.g. sms and emails), including for advertising purposes. The role of Contractor is limited to service provider functions. Due to the nature of the Maestra Service, the Contractor is not liable for any negative consequences caused by activities performed by the Customer, including (but not limited to) profit loss, personal data complains and issues etc. The Contractor provides a tool for the Customer to reach its advertising purposes and shall not be considered as an advertiser, or an advertising provider, and etc.
The Client information is and shall remain the property of the Customer. Each Client has a unique identifier in the Maestra Service. Client information, Client actions and Client segments are available for the Customer in the Maestra Service. The Customer has the technical opportunity to enrich, alter, delete, upload and download information related to the Clients in the Account (as defined below) in the Maestra Service, using web interface or API.
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The Contractor shall provide the Subscription to the Maestra Service on the principle of "as is." This means that the Customer independently determines how to use Maestra Service and is responsible for the possible consequences of its use. The Contractor shall not be liable for any type of losses caused by Customer’s use or inability to use the Maestra Service or its parts/functions, including possible errors or failures.
If the cost of the Subscription to the Maestra Service for the last Accounting Period is 2 000 EUR excluding VAT or more, then the Contractor provides the Customer with a level of the Maestra Service in accordance with the SLA published on maestra.io/documents/eu/sla and binding on the Parties. The Parties agree that the percentage, speed and quality of sending of electronic messages depend on circumstances beyond the will of the Parties, for example, operational algorithms of email systems spam filters and the peculiarities of communication service providers function.
The Сustomer hereby agrees that the Contractor is entitled to change the functionality and user interface of the Maestra Service without notifying the Customer. The modification of the Maestra Service shall not relieve the Contractor from any obligations and liabilities hereunder.
The Contractor has a right to involve third parties to the Subscription to Maestra Service provision on its own behalf and at its own expense. The Contractor assumes full liability for the actions or omissions of such third parties in relation to this Agreement as if the actions and omissions of such third parties are made directly by the Contractor.
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The Contractor executes the following actions within 7 (seven) business days after the receipt of the first advance payment from the Customer according to this Agreement:
Creates a Customer’s account (hereinafter — "Account") in the Maestra Service The identification of the Customer is carried out by unique access credentials: login and password (hereinafter — "Access credentials"). The Customer is entitled to get extra Access credentials without any limitations. Extra Access credentials may be created by the Customer on its own in the Account or by the Contractor upon Customer’s request received by Means of communication.
Sends to the Customer an email with all the information required for access to Maestra Service.
Information about the Manager and the Lead manager including phone number and email is available in the Account. In case a new Manager or Lead manager is assigned to the Customer, the information in the Account changes respectively. These changes have legal effect and don’t require a notification from the Contractor or any approval from the Customer.
The Parties agree that the following representatives of the Contractor have an access to the Account and Client information: Manager, Lead manager, and customer support specialists. The Contractor is entitled to give an access to the Account to other responsible officials of the Contractor if necessary, for example for error diagnostics.
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After receipt of the first advance payment from the Customer the Contractor provides the trial period (hereinafter — "Trial period") on the conditions specified below. Trial period means a free trial offer during which the Customer has access to the Maestra Service, but electronic messages can not actually be sent. During the Trial period the Customer can explore the functionality of the Maestra Service and can integrate the Maestra Service with required data systems and services.
The maximum duration of Trial period depends on the cost of Service Subscription specified in the invoice for the advance payment based on the rough estimate by the Contractor (hereinafter — "Forecasted cost"):
Forecast cost, EUR excluding VAT The maximum duration of Trial period, months 2 000 and less 1 2 000 — 2 625 2 2 625 and more 3 The duration of the Trial period starts from the date when the Contractor receives the advance payment.
The Customer can stop the trial period and initiate full use of the Maestra Service through the Account or by sending a request to the Contractor by Means of communication. If the Customer doesn’t stop the Trial period, the Trial period will end automatically after the maximum duration of the Trial period. The Contractor starts to provide the Subscription to Maestra Service on the first day after the Trial period has ended.
SCOPE OF SERVICES AND GRANTED RIGHTS
The Subscription to Maestra Service includes the Basic module (hereinafter — "Basic module"), the Basic module extensions (hereinafter — "Extensions"), the Communication channel modules (hereinafter — "Communication channel"), the additional modules (hereinafter — "Additional modules"), and the additional services (hereinafter — "Additional services"). The complete scope of the modules and services is provided in the Maestra Service Rates. As part of the Subscription to the Service, the Customer can request the Contractor to create an additional project for testing campaign settings and other technical requirements (hereinafter — "Staging project"). The cost of the Staging project is calculated according to the Maestra Service Rates. If the Customer uses a Staging project, then the Customer may test modules that are active on the main project.
The Customer may activate or deactivate any Additional module and services on its own in the Account or by sending a request to the Contractor by Means of communication.
The Customer agrees that it shall not, directly or indirectly (and shall ensure that Customer Users shall not): (i) engage in any act not expressly permitted by this Agreement, or access or use the Maestra Service in violation of this Agreement or in violation of any applicable laws, rules or regulations; (ii) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available the Maestra Service or your right to access or use the Maestra Service to any third party in any way (unless we have given you express permission in writing to do so); (iii) copy, modify, adapt, publicly display or publicly perform or create derivative works of the Maestra Service or any portion thereof, or decompile, reverse assemble, or otherwise reverse engineer the Maestra Service or any portion thereof, except to the extent as may be expressly permitted by law and authorized hereunder; (iv) attempt to gain unauthorized access to, or otherwise impair the integrity, use or security of, the Maestra Service or any information accessible thereby (including information of third parties) or any systems or data of us or a third party; or (v) use Maestra Service to process, store, transmit or receive any information or materials if prohibited under this Agreement or by applicable laws, rules or regulations. THIS PARAGRAPH WILL SURVIVE TERMINATION OF THIS AGREEMENT FOR ANY REASON.
INVOICING AND PAYMENT, TRANSFER AND ACCEPTANCE
On or before the start of the Trial period, the Customer shall pay to the Contractor, in advance, the amount specified in the invoice.
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After the end of the Trial period, the Customer shall pay for the Subscription to Maestra Service monthly in advance, in accordance with Contractor’s invoices, on or before the 21th day of each Accounting period.
The sum of each invoice will be based upon an advance payment in the amount of the cost of the Subscription to Maestra Service for the previous Accounting period (for the full calendar month, excluding any discounts), as well as an additional payment for the previous Accounting period (if necessary). For clarity, an advance payment made by the Customer in an Accounting period is intended to cover the costs of the Subscription to Maestra Service incurred by the Customer in the future Accounting period.In case that the Customer has failed to pay the advance payment for the first Accounting period within 3 (three) months from the date of invoicing, the Contractor is entitled to cancel the invoice for the first Accounting period and revise the conditions for the provision of services by changing Maestra Service Rates specified in Annex № 1 to the current version located at: www.maestra.io
The Contractor is entitled to suspend the Subscription to Maestra Service with a five (5) business days’ prior notice to the Customer in case the Customer has failed to pay for the Subscription to Maestra Service. In the event of a suspension,the Customer shall be obligated to continue payment to the Contractor of all fees in accordance with this Agreement. Only termination of Agreement shall mean complete termination of the Subscription to Maestra Service.
All payments are carried out according to the Agreement by wire transfer to the bank account designated by the Contractor, which the Contractor may update from time to time with notice to the Customer.
The cost of the Customer’s Subscription to Maestra Service is calculated each Accounting period according to the Maestra Service Rates. The actual cost of the Customer’s Subscription to Maestra Service in a given month will be provided to the Customer in a subscription breakdown, which is available for the Customer in the Maestra Service within approximately (5) business days after the end of the Accounting period to which the costs apply.
The Customer has fifteen (15) business days after the end of Accounting period to notify the Contractor in writing of a bona fide dispute asserted in good faith as to one or more of the items of the monthly invoice, otherwise the Subscription to Maestra Service listed in the invoice is deemed to be accepted by the Customer. The Customer agrees that by not sending any notification of a bona fide dispute within the period mentioned in the previous sentence it acknowledges that the Subscription to Maestra Service was duly provided by the Contractor and the Customer has no claims and complaints concerning the scope and quality of the Subscription to Maestra Service provided in the respective Accounting period.
Non-use of the Maestra Service by the Customer shall not be construed as a failure to provide the Subscription to Maestra Service by the Contractor.
If the commencement date of the Subscription to Maestra Service is not the first calendar day of the Accounting period, the cost of the Subscription to Maestra Service will be calculated in accordance with the following formula A = B / C * D, where:
A is the cost of the Subscription to Maestra Service to be charged;
B is the cost of the Subscription to Maestra Service for the full Accounting period;
C is the number of calendar days in the Accounting period.
D is the actual number of calendar days when the Subscription to Maestra Service was provided.
Additional modules are charged according to the Accounting periods, but in proportion to the number of days when they were actually activated
The Contractor is entitled to change the Maestra Service Rates by sending notification with the new version of the Maestra Service Rates to the Customer:
after prior approval from the Customer by Means of communication — without limitation on frequency of such change with changes becoming effective on date agreed by the Parties;
without prior approval from the Customer — not more frequent than once during every twelve (12) Accounting periods with changes becoming effective on date stated in the notification but not earlier than thirty (30) calendar days after such notification.
The Contractor is entitled to amend the list of Communication channels, Additional modules or services by sending a notification to the Customer by Means of communication.
The Contractor might provide a discount for the services in any cases including but not limited stipulated in SLA. The discount conditions are agreed upon by Means of communication with the subsequent registration in the Account without signing additional documents.
The Customer shall make all payments under the Agreement without withholding or deduction of, or in respect of, any tax unless required by law. If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to the Contractor such additional amount as will ensure that the Contractor receives the same total amount that it would have received if no such withholding or deduction had been required.
Bank fees related to the payments between parties, including but not limited by bank fees of the correspondent banks, shall be covered by sender of the payment (OUR).
DOCUMENTS AND NOTIFICATIONS
The Parties agree that the exchange of electronic documents and messages through Means of communication is an equivalent to the exchange of documents with handwritten signatures signed by simple electronic signature and has a legal effect.
A Customer’s instructions sent by e-mail or by messengers are binding for Contractor only if they are addressed to support@maestra.io or to the Manager and the Lead Manager.
Each Party notifies the other Party about any change of the legal entity details or bank details, within five (5) business days after such change.
Each Party notifies the other Party of any requests made by third parties, including claims and claims arising directly or indirectly in relation to the Agreement, attaching the copies of the related documents to the notice, within reasonable time enabling the other Party the opportunity for relevant defense. The Party receiving the notice may assist in the preparation of replies to such third party, giving the sender the necessary information within the time specified in such notice.
WARRANTIES AND LIABILITY
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The Customer shall indemnify, defend and hold the Contractor including but not limited to its officers, affiliates, directors, agents, employees and its successors and assigns, harmless from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable attorneys’ fees that the Contractor may incur or suffer, that arise, result from, or relate to:
any breach of, or failure by, the Customer to perform any of its obligations, warranties, covenants or agreements in this the Agreement or any other agreement furnished, or to be furnished, by the Customer;
any third party copyright and related rights infringement caused by the use by the Contractor of resources provided by the Customer, committed by theCustomer or other persons using the Customer’s Account under Agreement;
any breach of applicable legislation, including GDPR, committed by Customer by using the Subscription to Maestra Service;
any activities performed by the Customer.
This condition is applicable only if the Contractor has notified the Customer about the requests of third parties according to the Agreement.
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The Customer warrants that resources and objects used in accordance with the terms of Agreement are in compliance with the applicable legislation, including GDPR and legislation on personal data, on advertising and competition protection, intellectual property rights and not burdened by claims of third parties, and the Customer is the exclusive owner of the provided resources, objects and/or has all required permissions from authors and other сopyrights holders in respect to intellectual property rights on such resources, on objects included in such resources and in respect of original objects (if such resources represent revisions and/or translations), provided that such permissions should not prejudice the rights of the Contractor or impede the use of the objects by the Contractor in accordance with this Agreement. The Customer hereby grants the Contractor a non-exclusive, non-transferable right to use all the resources and objects for the purposes of due performance of Contractor’s obligations under the Agreement.
If the Customer uses client information of citizens of a foreign country (not EU) and/or makes messaging to such citizens when working with the Maestra Service, the Customer guarantees compliance of all materials sent by him or by any other person through the Account applicable to foreign law, as well as compliance by the Customer with the applicable foreign law when working with the Maestra Service.
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The Customer is liable for the relevant quality of Client information for Message Delivery Systems and guarantees such relevant quality. To ensure successful delivery of the Customer’s electronic communications and to maintain the rating of the Maestra Service in the systems of message delivery, the Contractor is entitled to ask the Customer to carry out the required actions, including:
clean the database from dubious or unreliable information;
change the frequency of mailings;
unsubscribe some Clients from mailings;
provide the Contractor with the information proving that the Client information has legal origins.
The Customer is obliged to perform the required actions within five (5) business days after receipt of the relevant request from the Contractor.
The Contractor is entitled to suspend respective Additional Modules of the Maestra Service with a five (5) business days’ prior notice to the Customer in case the Customer has breached the provisions of paragraph 6.1. — 6.3. hereof. The period of time during which the Subscription to Maestra Service was suspended as a result of the Customer’s undue performance or nonperformance of its obligations under the Agreement shall be payable according to the Agreement as if the Subscription to Maestra Service was provided by the Contractor. Only termination of the Agreement shall mean complete termination of the Subscription to Maestra Service.
The Сontractor guarantees compliance with GDPR and the EU Data Protection Directive in relation to the processing of Personal Data.
The Contractor guarantees compliance with Data processing terms.
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PENALTIES AND COMPENSATION
Penalty for late performance or non-performance by the Customer of any obligation equals 0.1% of the value of such obligation for each day of delay, and shall be accrued in the case of due written request. Penalties shall be paid within ten (10) business days after receipt of the relevant request. The Contractor can demand performance of both this penalty clause and the obligation to which this penalty clause is linked. Penalties are not charged on advance payments. Any amount due on the basis of this penalty clause will not take the place of the compensation for damages that are due by virtue of law.
FORCE MAJEURE
Neither Party shall be liable to the other Party for any delay, damage, or failure caused by or occasioned by Force majeure event. Delays due to Force majeure events shall not be deemed to be a breach of or a failure to perform under the Agreement.
The Party invoking Force majeure event circumstances shall notify the other Party within a reasonable time after their occurrence, otherwise it loses the right to invoke such circumstances.
TERMINATION OF AGREEMENT
The Term of this Agreement shall commence on the Effective Date set forth in the preamble hereof, and shall continue in full force and effect until terminated in accordance with this Article 9.
This Agreement may be terminated upon written mutual agreement of the Parties.
The Customer shall have the right to terminate this Agreement for convenience by providing a one (1) business day prior notice in writing to the Contractor.
The Contractor shall have the right to terminate the Agreement:
at least one (1) business day before the termination, if the Contractor suspended the Subscription to Maestra Service and the Customer has not cured the cause of the suspension within five (5) business days after the date of such suspension, or if the Customer’s Subscription to Maestra Service was suspended on more than two (2) occasions in any twelve (12) month period;
for convenience, by providing the Customer with at least thirty (30) calendar days’ advance notice prior to the date of termination.
The moment of termination is the moment agreed by the Parties or stated by one of the Parties to be the last day of the Agreement.
The Subscription to Maestra Service that has already been provided at the moment of termination must be fully paid by the Customer.
The Contractor shall refund to the Customer all the advance payments excluding the cost of the Subscription to Maestra Service that have already been provided by the Contractor at the moment of termination.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed, construed, and interpreted in accordance with the laws of the Netherlands.
Any dispute arising under this Agreement or any other agreement resulting there from and relating thereto shall be brought before the competent court of Amsterdam, the Netherlands, notwithstanding Contractor’s right to have such dispute brought before any other competent court.
MISCELLANEOUS
The Agreement sets forth the entire understanding between the Parties relating to the subject matter of the Agreement and supersedes all prior agreements, correspondence and discussions between the Parties relating to the subject matter of this Agreement and merges all prior and contemporaneous discussions between them.
Any agreements or stipulations mutually agreed on by the Parties in mutually acceptable manner that are contrary to any term of the Agreement shall prevail, unless the Contractor and the Customer have expressly agreed in writing that such agreement or stipulation shall not supersede the terms of the Agreement. The Annex 1 to Agreement stipulating the Maestra Service Rates, the Annex 2 to Agreement stipulating Personal Data Processing Agreement (EU Customer) and Annex 3 stipulating Data processing agreement (non-EU Customer) shall constitute an integral part of the Agreement and shall be construed in accordance with the Agreement.
In the event that any clause or covenant of the Agreement shall be unenforceable or invalid under applicable laws or be so held by an applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole.
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The Customer undertakes to provide at least one recorded interview regarding Customer’s experience with the Contractor’s products and services (the "Interview"). In addition, the Customer may provide the Contractor with other information, recommendations, suggestions or other feedback regarding the Contractor, including, without limitation, its products and services (collectively, "Feedback"). The Contractor is authorized to create information and material based on, or arising out of, the Interview and/or Feedback (collectively, "Material"). Without any additional consideration, payment or compensation, the Customer (on behalf of itself and its parent(s), subsidiaries and affiliates (together with the Customer, the "The Customer Entities") hereby grants the Contractor and its parent(s), subsidiaries or affiliates (together with the Contractor, collectively the "The Contractor Entities") an irrevocable, fully-paid, perpetual, transferable, worldwide right and license to use, and publish, such Material in any medium as determined by the Contractor and/or by the Contractor Entities, including, without limitation, on the
maestra.io websites. The Contractor and Contractor Entities shall also have the right to (i) modify and create derivative works of the Material, (ii) publish Material (in whole or in part) on the official webpages or channels of the the Contractor and Contractor Entities including, without limitation, on Facebook, Instagram, YouTube, LinkedIn, (iii) use the Material in any other forum including, without limitation, in presentations, promotional materials, conferences, exhibitions, webinars and other public events, and (iv) use the Customer’s and the Customer Entities’ logo, brand and/or other identifying information, (v) share a hyperlink to a website controlled by the Customer or Customer Entities in connection with Contractor’s/ Contractor Entities rights to use the Materials in accordance with this Agreement. The Customer may provide Material in the form of text, photo, video, audio or any combination thereof.The Contractor and the Contractor Entities shall have the right to assign this Agreement (and/or any of its rights or obligations contained herein) to another party (including to other Contractor Entities) including, without limitation, in connection with a change of control or sale of all or substantially all of the assets or business of any of the Contractor Entities.
The Agreement as well as all legal instruments with regard to the Agreement may be executed in any number of counterparts, each of which shall be deemed an original and the signed counterparts will together form a single binding instrument.
Delivery of any executed counterpart by Means of communication shall be equally effective as delivery of hard copy executed original. Upon receipt of such request the Contractor shall provide to the Customer with a hard copy of the executed counterpart of the Agreement within seven (7) business days after the request, but failure to do so shall not affect the validity, enforceability or binding effect of the Agreement.
DETAILS OF THE PARTIES
IN WITNESS WHEREOF, Parties have executed Agreement effective as from Effective Date stated above.
| CUSTOMER | CONTRACTOR |
| Company data as filled in Order Confirmation. | Contractor data as filled in Order Confirmation. |
Attachments
Annex 1 — Maestra Service Rates