1. SERVICES AND SUPPORT.
1.1 Company Provision of Services. Subject to this Master Services Agreement (“Agreement”), Company will provide to Client the Services set forth in the Order Form. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.
1.2 License. The Services are provided by Company as “software-as-a-service,” and thus Client does not have a license to download any aspect of the Services, except as expressly permitted or intended through the Services. Client is hereby granted, during the Term and subject to and limited by the terms of this Agreement a non-exclusive, non-sublicenseable, non-transferable, limited, revocable license to access and use the Services, conditioned on compliance with this Agreement. With respect to any Services that are provided through distribution of software or documentation, or are otherwise provided to Client for use on Client premises or devices, Company hereby grants Client a non-exclusive, non-transferable, non-sublicensable license to use such distributed Services during the Term and conditioned on compliance with this Agreement, only in connection with the Services.
1.3 Restrictions. The Services may be used only for Client’s internal business purposes and not for any commercialization by Client. Furthermore, Client will not, directly or indirectly: (i) reverse engineer, decompile, copy, mirror, disassemble or otherwise attempt to discover or reproduce the source code, object code or underlying structure, feature, function, user interface, ideas, know-how or algorithms relevant to the Services; (ii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Company or authorized within the Services); (iii) use or make available any portion of the Services for any timesharing, commercial or service bureau purposes or otherwise for the benefit of a third party, including as an outsourcing offering, except as expressly set forth herein; (iv) build or create applications, programs or services that are competitive with the Services; (v) remove any proprietary notices or labels; or (vi) use the Services beyond other usage limits set forth in this Agreement.
1.4 Company Monitoring. Although Company has no obligation to monitor Client’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement.
1.5 Control Over Services. So long as during the Term Company does not materially decrease the functionality of Services as described in this Agreement: (i) Company retains sole control over the operation, provision, maintenance, management, and performance of the Services, including the selection, deployment, modification and replacement of any software component of the Services, and maintenance, upgrades, corrections or repairs thereof; (ii) Company reserves the right to make any changes to any software component of the Services that it deems necessary or useful to maintain or enhance the quality or delivery of Company’s Services to its customers, the competitive strength of or market for Company’s Services, or the cost efficiency or performance of the Services; and (iii) Company may use global resources to provide Services and perform its obligations, unless otherwise expressly agreed.
2. CLIENT RESPONSIBILITIES; RESTRICTIONS.
2.1 Account Creation. As part of the registration process, Client will identify an administrative user name and password for Client’s Company account. Client shall be solely responsible for maintaining, remembering and keeping confidential Client’s account information, including user name and password. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Client shall be responsible for maintaining the security of the Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account with or without Client’s knowledge or consent.
2.2 Client Representations. Client represents, covenants, and warrants that Client will use the Services only in compliance with this Agreement and with Company’s standard published policies then in effect, including as published on Company’s websites or within any application through which the Services are available (the “Policy”) and all applicable laws and regulations.
2.3 Additional Equipment Responsibilities. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, and for all uses of the Equipment with or without Client’s knowledge or consent.
2.5Client Data. Client may be required to provide information or data to Company to enable the provision of the Services, and Company may collect data or information from Client by or through the access or use of the Services or any Software (“Client Data”). Client hereby grants Company a non-exclusive, worldwide, royalty-free right and license to any intellectual property, including Client Data, that is necessary for Company and its designees to perform the Services.Client has sole responsibility for the accuracy, quality, and legality of any Client Data, including the means by which it was acquired by Client.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS.
3.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose confidential business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Client includes non-public Client Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party (as demonstrated by clear evidence) or (e) is required to be disclosed by law.
3.2 Ownership Rights. Company shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or any support, (c) any suggestions or feedback provided to Company by Client, and (d) all intellectual property rights related to any of the foregoing. No transfer of ownership of any intellectual property will occur under this Agreement.No rights or licenses are granted except as expressly set forth herein.
3.3 Data Collection. Notwithstanding anything to the contrary, but subject to the confidentiality obligations contained herein, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), andCompany will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data in aggregate or other form in connection with its business, subject to any applicable privacy laws, and use such data for business purposes including analytics, product benchmarking, and marketing. Company may use Client Data according to any privacy policies applicable to provision of the Services and as necessary to provide the Services (including preventative and reactive technical support), or as permitted by Client, or as otherwise required by law.
4. PAYMENT AMOUNT.
4.1 Payment Amount. Client will pay Company the applicable Amount for the Services in accordance with the Payment Terms. Company reserves the right to change the Amount or applicable charges and to institute new charges and Amount at the end of the Term or then current Renewal Term (if applicable), upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that Company has billed Client incorrectly, Client must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Client support department.
4.2 Late Fees. Unpaid Amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
4.3 Taxes. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION.
5.1 Term. Subject to earlier termination as provided below, the term of this Agreement (the “Term”) shall be for the Term plus any Renewal Terms (if applicable).
5.2 Termination For Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within ten (10) days of such notice. If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Client will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER.COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Company Indemnity Obligations. Company shall hold Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.
7.2 Exclusions from Company Indemnity Obligations. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with this Agreement.
7.3 Replacement of Infringing Services. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Service.
7.4 Client Indemnification. Client hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of this Agreement or otherwise from Client’s use of Services or as a result of Company’s reliance on any Client Data or use of Client Data in connection with the provision of the Services.
8. LIMITATION OF LIABILITYNOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES, SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR LOST REVENUES, PROFITS OR DOWNTIME COSTS, OR FOR ANY DATA BREACHES OR HACKS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL COSTS OR DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Client except with Company’s prior written consent.Company may transfer and assign any of its rights and obligations under this Agreement without consent.
9.3 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.4 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever.
9.5 Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.6 Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; the day after it is sent, if transmitted by facsimile or e-mail or if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.7 Governing Law. This Agreement shall be governed by the laws of the State where Company’s current headquarters are located, without regard to its conflict of laws provisions.
9.8 Publicity. Client agrees to reasonably cooperate with Company to serve as a reference account upon request, and hereby grants Company a license to display Client’s name and logo on its website and other marketing and sales materials to communicate that Client is a customer of Company.
9.9 Export Restrictions. Client may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. The Services and related documentation are to be deemed “commercial items,” “commercial computer software” and “commercial computer software documentation” for applicable DFAR and FAR regulations. Any use modification, reproduction, release, performance, display, or disclosure of commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.