Master Services Agreement
UPDATED NOVEMBER 27th, 2020
“BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF 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 “CUSTOMER” 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 THE SERVICES.
1.1 Services. Subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to provide Customer with access to the Services described in the applicable Insertion Order. The Services are subject to modification (including, without limitation, to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements) from time to time at Company’s discretion. Through the Services, Company may obtain access to a set of data provided by Customer in the course of the Customer’s use of the Service (“Customer Data”). Through the Services, Customer may obtain access to a set of data or a report provided by Autobound in the course of the Customer’s use of the Service (“Report”). Reports are considered part of the Services for purposes of this Agreement.
1.2 Modifications, and Enhancements. The Services are regularly updated and enhanced during the Term. Company may deprecate, diminish, or remove certain features and functionality of the Services at their sole discretion. If Company determines that any such change is likely to have a materially adverse impact on Customer’s use of the Services, Company will provide notice of such change. If Customer does not accept such change, Customer must notify Company within thirty (30) calendar days, and the Parties will attempt to negotiate an amicable resolution in good faith. Failure to notify the Company will be deemed agreement to such changes.
1.3 Technical Support. Company’s standard technical support services are included at no additional charge during the Term. Access to email technical support is provided to Customer’s designated support personnel during normal business hours (Mon - Fri, 8am - 5pm PT (UTC−08:00). Access to online support resources are available 24x7x365 to all Authorized Users.
1.4 Feedback. In the event that Customer provides feedback to Company about the Services, Company may develop, modify, and improve the Services on the basis of Customer’s feedback and Company shall have all rights and title to any and all usage analytics. Customer grants Company a royalty-free, fully paid, non- exclusive, perpetual,
irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit such feedback without restriction.
2. CUSTOMER DATA AND OBLIGATIONS
2.1 Customer Data. Customer shall provide Company with data consisting of personal information, calendars, emails, CRM data, product information, company information or marketing information that shall be utilized in the course of the Customer’s use of the Services (“Customer Data”). Customer is and shall remain the sole owner of Customer Data provided to Company prior to or during the use of the Services. Customer warrants and represents that the Customer Data or any other information or content provided by Customer to Company is accurate, complete, appropriate, safe and/or legal to share with Company. Customer further warrants and represents that Company may access and use the Customer Data to perform the Services during the Term.
2.2 Ownership. All files, content (including audio, video, text, or images), and Customer Data belonging to or controlled by the Customer which is uploaded into, or generated by the Services, or otherwise provided to Company for processing pursuant to the Agreement (“Customer Data”) shall remain Customer’s property. Customer is and shall remain the sole owner of Customer Data provided to Autobound prior to or during the use of the Services. Customer grants Company a non-exclusive, worldwide, royalty-free license to process, reproduce, display, copy, communicate, and otherwise use Customer Data solely (i) to the extent necessary to perform its obligations or enforce its rights under the Agreement, or (ii) where required or authorized by law. Customer further warrants and represents that Company may access and use the Services during the Term.
2.3 Customer retains complete control over the installation, configuration, and usage of the Services, and Company will not be responsible or liable for any deletion, corruption, damage, destruction, or unintended exposure of Customer Data due solely to acts or omissions of Customer. Customer is responsible for ensuring that the Customer Data does not violate this Agreement, third- party intellectual property rights, or applicable laws and regulations (including illegal, harmful, offensive, defamatory, misleading, obscene, or abusive material), and the Customer will take reasonable steps to identify and promptly remove any such Customer Data. Additionally, the Customer represents and warrants that the Customer Data will not include any Sensitive Personal Information as defined by the law, and that all collection, transfer, and use of any personal Customer Data in connection with the products and Services will comply with all applicable privacy laws, regulations, self-regulatory guidelines.
2.4 Company will retain Customer Data that Company processes on behalf of our Customers during the Term of the Agreement or as needed to continue to continue to provide Customer with the Services. Following the termination of the Services, Company shall maintain the Customer Data for the period of thirty (30) days and shall delete said data at the end of the thirty (30) day period. If Customer wishes to cancel Customer’s account or request that Company no longer uses Customer’s information to provide Customer’s Services, Customer may delete Customer’s account. Company may retain and use Customer’s information as necessary to comply with Customer’s legal obligations, resolve disputes, enforce Customer’s agreements and rights, or if it is not technically reasonably feasible to remove it. Consistent with these requirements, Company will use best efforts to delete Customer’s information within a reasonably prompt period of time. Please note, that Company may retain Customer’s personal data for longer where there is a legal obligation, contractual, or legitimate interest, unless these interests are overridden by the individual’s fundamental rights; in those cases data will be removed once it is no longer needed for those purposes. In addition, Company does not provide access, transfer, change, or delete information from our servers’ files where that right adversely affects the rights of others.
3. USE OF THE SERVICES, PRIVACY AND SECURITY
3.1 Use of the Services. Customer is hereby granted (1) a limited, non-exclusive, nontransferable, revocable right to use the Services (excluding Reports) for its internal purposes solely for the term of the Agreement, and (2) a limited, non-exclusive, nontransferable, perpetual right to use Reports for its internal purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services (including any Reports), or any intellectual property rights. All rights not expressly granted herein are reserved by Company.
3.2 Intellectual Property Rights. Except as expressly set forth herein, Company will retain all intellectual property rights relating to the Services, aggregated and anonymized data generated from the Customer’s use of the Service(s), and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Customer relating to the Services (“Service Data”) and Customer hereby makes all assignments necessary to accomplish the foregoing with respect to Service Data. Customer hereby grants Company a non-exclusive, worldwide, royalty-free license to process, reproduce, display, copy, communicate, and otherwise use Service Data solely (i) to the extent necessary to perform its obligations or enforce its rights under the Agreement, (ii) as part of its business operations or (iii) to operate, manage, test, maintain and enhance the Service(s).
3.3 Work Product. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by Company in connection with the Services will be the exclusive property of Company. Upon request, Customer will execute all documents necessary to
confirm or perfect the exclusive ownership of Company to the Work Product.
3.4 Security. Company will establish and maintain appropriate administrative, technical, and physical safeguards and controls to: (i) ensure the ongoing confidentiality, integrity and availability of the Services and Customer Data; (ii) restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident; (iii) have in place the process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing through the Services.
4. WARRANTIES AND REPRESENTATIONS
4.1 Customer represents and warrants that: (i) it will not use the Services or any product thereof in any manner that violates any law or governmental regulation; (ii) it will prevent any unauthorized use of or access to the Services and promptly notify Company of any such use or access; and (iii) Customer Data (including Customer’s provision thereof to Company and Company’s use thereof) will not violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or other personal or proprietary right.
4.2 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (except to the extent applicable law prohibits such a restriction); modify, translate, or create derivative works based on the Services; use the Services for time sharing or service bureau purposes or for any purpose other than its own internal business purposes (including providing any report to a third party); or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations.
4.3 Company grants Customer a non-exclusive and non-transferable license during the Term to permit the employees of Customer (an “Authorized User”) to access, install, implement, and use the Services solely for Customer’s business purposes. Customer’s rights to use the Services are limited to those expressly set forth in the Agreement, including limitations based on license type set forth in the Insertion Order. Company retains all right, title, and interest in and to the Services and all related intellectual property rights, including without limitation any modifications, updates, customizations, apps, or other add-ons.
4.4 Restrictions. Except as explicitly permitted under the Agreement, Customer is prohibited from the following: (i) using the Services in violation of any applicable law or regulation; (ii) using the Software or any products in a manner that would cause a material risk to the security or operations of Company or any of its other customers; (iii) disassembling, decompiling, or reverse engineering the Software; (iv) redistributing, republishing, selling, renting, leasing, hosting, sub-licensing, or permitting usage of the Software on a time-sharing basis as part of a hosted service or on behalf of any third party; (v) removing, obscuring, or altering any proprietary notices; or (vi) circumventing, disabling, or stress testing any security or other technological features of the Software.
4.5 Authorized Users. Access to the Services is limited to Authorized Users and must not exceed the number of users specified in the Insertion Order. Authorized User accounts may be reassigned by the Customer, but accounts must not be shared among multiple users. Customer shall be solely responsible for the actions or inactions of the Authorized Users. Customer agrees to: (i) promptly report to Company any violation of the Agreement by its Authorized Users; (ii) immediately disable access for any user violating the Agreement; and (iii) ensure that no false or misleading personal information is used to create user accounts.
4.6 Customer may be permitted, through the functionality of the Services, to access the Services through a third party platform or to link its Services account with its third party platform account (each such platform, a “Third Party Platform”). If Customer accesses the Services through a Third Party Platform, it understands and agrees that information in its account on the Third Party Platform may be transferred or made available to Company during the Term of any Agreement (“Third Party Platform Information”), and information in its Company account may be transferred or made available in its Third Party Platform account (and/or to the third party that controls the Third Party Platform), and Customer hereby consents to all such transfers and to Company using and exploiting Third Party Platform Information in connection with its provision of the Services.
4.7 Customer will cooperate with Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Company may reasonably request. Customer’s use of the Services may be limited to a certain number of users, as described in an Insertion Order; Customer will establish a username and password (or any other means required by Company) for verifying that only designated employees of Customer have access to the Services as users under Customer’s account unless another means of verification is explicitly provided on the Insertion Order. Customer will be responsible for maintaining the security of all Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer accounts with or without Customer’s knowledge or consent.
5. FEES, PAYMENTS AND TAXES
5.1 Fees. Customer shall pay the Fees according to the payment terms in the Insertion Order. Company shall issue all monthly invoices electronically and all fees shall be based upon the price per user per month. A user shall constitute a single license identifiable by email on the Company's platform.
5.2 Failure to Pay. If Customer fails to pay any amount due under the Agreement according to the payment terms in the Insertion Order, Company may, in its sole discretion, suspend or restrict the Services. Company may charge interest at a monthly rate equal to the lesser of 1% per month or the maximum rate permitted by applicable law on any overdue fees, from the due date until the date the overdue amount (plus applicable interest) is paid in full. Customer shall be responsible for the payment of all costs of collection, including without limitation, reasonable attorney fees.
5.3 Taxes. The fees stated in the Insertion Order do not include any local, state, provincial, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges (“Taxes”). Customer is responsible for paying all applicable Taxes. If Company determines that Company has the legal obligation to pay or collect Taxes, Company will add such Taxes to the applicable invoice and Customer will be obligated to pay such Taxes, unless Customer provides Company with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues Company for unpaid Taxes for which Customer is responsible under the Agreement and which Customer did not pay to Company, Company may invoice Customer and Customer will be obligated to pay such Taxes to Company or directly to the taxing authority, plus all applicable interest, penalties, and fees.
6. TERM AND TERMINATION
6.1 Term. The Insertion Order shall provide the initial term of this Agreement (“Initial Term”). Thereafter, this Agreement will automatically renew for an additional term that is equal in length to the Initial Term (and continue to automatically renew in the same manner thereafter) (each, a “Renewal Term”). Either party may prevent such auto-renewal by giving the other party thirty (30) days written notice of its intent not to renew prior to the end of the then-current Initial or Renewal Term (as applicable).
6.2 Company may also suspend or limit Customer’s access to or use of the Services at Company’s sole discretion if Customer’s use of the Service results in (or is likely to result in, in Company’s discretion) damage to or material degradation of the Service which interferes with Company’s ability to provide access to the Service to other customers. If Company knows that Customer’s use is likely to result in such damage or degradation, Company will use reasonable efforts to (a) provide Customer with notice and (b) work with Customer, prior to any such damage or degradation in order to resolve the issue without resorting to suspension or limitation. Company may reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.
6.3 Termination for Cause.
6.3.1 If either party commits a material breach of the Agreement, the non-breaching party may give written notice describing the nature and basis of the breach to the breaching party. If the breach is not cured within 30 days of the notice date, the non-breaching party may immediately terminate the Agreement, in whole or in part. Company may terminate this Agreement for Company’s convenience upon thirty (30) days’ prior written notice to Customer. Upon expiration or termination of this Agreement, Customer’s right to use the Services will immediately cease, provided that to the extent any Report has been provided to Customer hereunder Customer may continue to use such Report for its own internal business purposes, and for no other reason.
6.3.2 In the event a party learns the other party is subject to an insolvency event (e.g. failing to pay its obligations as they arise, being declared bankrupt, or commencing proceedings under any law providing debt relief to the party) the party that is not the subject of the insolvency event may terminate the Agreement immediately upon notice to the party that is the subject of the insolvency event.
6.4 Suspension. Company may, without limitation to any other rights or remedies, temporarily suspend access to the Services if: (i) Customer’s payment of Fees is more than thirty (30) days overdue (except for charges subject to a good faith dispute); or (ii) Customer’s use of Services poses a security risk or may adversely impact Company’s systems. Whenever commercially reasonable, Company will provide advance notice to Customer of its intent to suspend access and provide alternative resolutions.
6.5 Effect of Termination or Expiration. All access to and use of the Services must immediately cease upon termination or expiration. If the Agreement is terminated for any reason other than Company’s uncured material breach, Customer will be responsible for Fees covering the remainder of the then-current term. If the Agreement is terminated for Company’s uncured material breach, Company will provide Customer a pro-rata refund of all prepaid but unused Fees.
6.6 Survival. The termination or expiration of the Agreement will not affect any provisions of the Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: payments, confidentiality, term and termination, effect of termination, intellectual property, indemnification, limitation of liability, privacy, and the general provisions section of this Agreement.
7. WARRANTY DISCLAIMER
7.1 To the maximum extent permitted by law and except for the express warranties in this section, Company provides the Services on an “as-is” basis. Company disclaims and makes no other representation or warranty of any kind, express, implied, or statutory (including claims about merchantability, title, non- infringement, accuracy, or fitness for a particular purpose). Customer acknowledges that (i) Company does not control Customer equipment or the transfer of data over communication networks, facilities, and devices (including the Internet); (ii) the Services may be subject to limitations, interruptions, delays, cancellations, and other problems inherent in the use of such communications networks, facilities, and devices; and (iii) Customer is wholly responsible to install appropriate security updates and patches. Company is not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss, or other damage resulting from these things.
8.1 Use. The receiving party will only use the disclosing party’s summaries, and extracts which is (i) disclosed in tangible form and is identified in writing as confidential at the time of disclosure, (ii) disclosed in non- tangible form that is unambiguously identified as confidential at the time of disclosure, and (iii) disclosed in such a manner, or of such a nature, that a reasonable person under the same circumstances would clearly understand the information to be confidential (“Confidential Information”) for the purposes of the Agreement and will not reproduce, disseminate, or disclose Confidential Information to any person, except to its employees and authorized representatives (e.g. temporary employees, consultants, and contractors) who need to know the Confidential Information for the purposes of the Agreement and are bound by confidentiality obligations at least as restrictive as those in this section. The receiving party will treat Confidential Information with the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. Confidential Information does not include information that (i) is or becomes generally publicly available through no fault of the receiving Party, (ii) was known to the receiving Party, free of any confidentiality obligations, before it's disclosure by the disclosing Party, (iii) becomes known to the receiving Party, free of any confidentiality obligations, from a source other than the disclosing Party, or (iv) is independently developed by the receiving Party without use of or reference to the Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession. The obligations in this section survive for three (3) years following expiration or termination of the Agreement.
8.2 Permitted Disclosure. The receiving party may disclose Confidential Information: (i) as approved in a writing signed by the disclosing party; (ii) as necessary to comply with any law or valid order of a court or other governmental body; or (iii) as necessary to establish the rights of either party, but in the case of (ii) and (iii), only if the receiving party promptly notifies the disclosing party of the details of the required disclosure and gives the disclosing party all assistance reasonably required by the disclosing party to enable the disclosing party to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence.
9.1 Company Obligations. Company will (i) defend at its expense, and (ii) pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Company) for a third- party claim, demand, action, or legal proceeding filed against a party (“Claim(s)”) alleging the following: (a) that the Services directly infringe a third party’s patent, copyright, or trademark; or Company has misappropriated the third party’s trade secret; or (b) a breach by Company of its obligations under applicable data protection laws and regulations, not caused by Customer's own acts or omissions.
9.3 Conditions. The indemnification obligations under this article are subject to the indemnified party (i) promptly giving written notice of the Claim to the indemnifying party, (ii) giving the indemnifying party sole control of the defense, negotiation, and settlement of the indemnified portion of the Claim, (iii) providing the indemnifying party with all reasonable assistance required to effectively defend the Claim.
9.4 IP Exceptions. Neither party will have any indemnification obligation or liability regarding a third-party intellectual property infringement Claim when the infringement was caused by: (i) a combination of the Services with any component not supplied by Company, or with a third-party component activated at the sole risk of Customer; (ii) unauthorized alteration or modification of the Services by anyone other than Company, or (iii) failure by Customer to use the latest version of the Services as requested by Company.
9.5 IP Remedies. In the defense or settlement of any third-party intellectual property infringement Claim, Company may, at its sole option and expense: (i) procure for Customer a license to continue using the Services in the same manner as antiquated by the Agreement; (ii) replace or modify the allegedly infringing Services to avoid the infringement; or (iii) terminate Customer’s license and access to the Services (or its infringing part) and refund any prepaid unused Fees as of the date of termination. The remedies and obligations in this section of the Agreement are Company’s sole and exclusive remedies and liability regarding the subject matter giving rise to any third-party intellectual property infringement Claim.
9.6 Data Privacy Exceptions. Neither party will have any indemnification obligation or liability regarding a third-party data security and privacy Claim when acts or omissions of the indemnified party impedes or prevents the indemnifying party’s ability to meet its data security and privacy obligations under the Agreement.
10. LIMITATION OF LIABILITY
10.1 Liability. To the extent permitted by law, neither party will, under any circumstances, be liable to the other party or to any third party for indirect, consequential, incidental, special, or exemplary damages, or for lost profits or loss of business arising out of or related to the Agreement, even if the party is apprised of the likelihood of such damages occurring. To the extent permitted by law, under no circumstances will either party’s total liability of any kind arising out of or related to the Agreement, regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total amounts paid by Customer under the Agreement during the twelve (12) months immediately preceding the date of the event giving rise to the Claim.
10.2 Third-Party Products. This Agreement does not govern Customer’s use of third-party products used in connection with the Services. Third-party products are governed solely by the terms and conditions between Customer and the third-party product developer. Company does not make any commitments or claims regarding security, confidentiality, or performance of any third-party products, and specifically disclaims any liability regarding third-party products. Customer acknowledges and accepts that third-party products: (i) are activated and used at the sole risk of Customer; (ii) not warranted, supported, or endorsed by Company; and (iii) may degrade the performance of the Services beyond Company’s reasonable control.
11. GENERAL PROVISIONS
11.1 Relationship. Company will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of the Agreement. The Agreement does not create a partnership, franchise, joint venture, agency, or fiduciary relationship between the parties.
11.2 Notices. Any notice given under the Agreement must be in writing and delivered by email to the following addresses (or alternative addresses provided in writing by each Party): 1890 Clay Street #1401, San Francisco CA 94109] (to Company); the primary billing email address set forth in the Insertion Order (to Customer). All notices will be deemed to have been delivered the second business day after sending by email.
11.3 Waiver and Modification. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies. The Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing signed by the parties.
11.4 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the provision may be interpreted by the court so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining portions of the Agreement will remain in full force and effect.
11.5 Assignment. Neither party may assign any of its rights or obligations under the Agreement without the prior written consent of the other party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign the Agreement in its entirety (including all rights and obligations) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
11.6 Publicity. Customer agrees that Company is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion. Customer further agrees to allow Company to use and display Customer’s logos, trademarks and company name on its website or in other business discussions at Company’s sole discretion.
11.7 No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement, including, without limitation, Authorized Users.
11.8 Entire Agreement. The Agreement, in addition to the Insertion Order, contains the entire understanding of the parties relating to the subject matter and supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations and warranties, both written and oral, regarding the subject matter. In the event of a conflict between the Insertion Order and this Agreement, the Insertion Order shall control.
11.9 Counterparts. The Agreement may be executed in counterparts, which taken together will form one legal instrument.
11.10 Governing Law and Venue. The Agreement is governed by and construed under the laws of the state of California without regard to any conflict of law rules or principles and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods. The Parties irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction in San Francisco, California.