1 General Agreement
Company agrees that, if in the course of accessing and using the Services, it is necessary for Customer to use certain items of Company Technology. Customer is hereby granted a limited, nonexclusive, internal, and royalty-free license, solely during the Term, to use the Company Technology solely for purposes of accessing and using the Services.Customer shall have no right to use the Company Technology for any purpose other than accessing and using the Services in accordance with the terms of this MSA.
Customer agrees that if, in the course of performing the Services, it is necessary for Company to access Customer Equipment or use Customer Technology, then Company is hereby granted a limited, nonexclusive, internal, and royalty-free license, solely during the Term, to use the Customer Technology and Customer Equipment solely for the purposes of delivering the Services to Customer. Company shall have no right to use the Customer Technology for any purpose other than providing the Services.
“API” means a Web Service requiring separately configured and distinct application services deployed on the Company’s platform (“distinct” in that it requires its own reporting system or configuration, developer access key database, inbound or outbound URL, and/or community site instance, or is served by or under a separate legal entity, company business unit, publishing group, product brand or application).
"Company Network" means the telecommunications network and the linkages between one of the following, as applicable, (i) the Customer port on the Company equipment, the Company equipment, any directly connected network maintained by any third party telecommunications or network or data center service provider utilized by Company; (ii) the Customer port on the equipment maintained by any third party telecommunications or network or data center service provider utilized by the Company and their network; or (iii) the Company’s content distribution center and any directly connected network maintained by any third party telecommunications or network or data center service provider utilized by the Company and their network. The Company Network does not include equipment located at Customer’s premises (including Company-Supplied Network) whether or not provided by Company, telephone circuits or networks between a Company POP and Customer’s location, inactive POP’s, or any networks, network equipment, or telephone circuits other than described above that is not owned or controlled by Company.
“Company Technology” means Company’s proprietary technology, including the Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secret, know-how and any related intellectual property rights throughout the world (whether owned by Company or licensed to Company from a third party) and also including anyderivatives, improvements, translations, enhancements or extensions of Company Technology conceived, reduced to practice, or developed during the Term by either party that are not uniquely applicable to Customer.
“Customer Equipment” means the Customer’s computer hardware, not including stored data, and other tangible equipment.
“Customer Technology” means Customer’s proprietary technology, including Customer’s Internet operations design,content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), trade secrets and any related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice, or developed, during the term of this MSA solely by Customer.
“Initial Term” means the minimum term for which Company will provide the Service to Customer, as indicated on each Order Form.
“IP Rights” collectively means all patents, trademarks, tradenames, copyrights, trade secrets, know-how, data rights, mask works, including all applications therefor, and all proprietary rights under the laws of the United States, any other jurisdiction or any treaty.
"Services” means the specific services provided by Company as described on each Order form.
“Term” collectively means the Initial Term and the Renewal Terms (as defined in Section 3.1 of the MSA.
“Web Service” means a URL to which a query is sent by a third-party application and for which content, data, or application component(s) are returned for use in that application or in one or more web pages served by that application.
3 Term and Termination
3.1 MSA Term
This MSA shall remain in effect so long as there is at least one active Order Form, unless terminated earlier in accordance with section 3.3 below
3.2 Order Renewal
The term for each Service will commence on the Billing Effective Date of each Order Form and shall continue during the Initial Term listed in each Order Form. The term of each Order Form will renew automatically for additional terms equal in length to the Initial Term (each a “Renewal Term”) unless either party notifies the other in writing not less than 30 calendar days prior to the end of the Initial Term (or any subsequent Renewal Term, as applicable), that it wishes to cancel such Service. The termination of any individual Service or Order Form will not affect Customer’s obligations to accept and pay for all other contracted Services covered by any active Order Form.
3.3.1 Termination for Cause.
Either party may terminate this MSA and any Order Form if the other party breaches any material term or condition of the Agreement and fails to cure such breach within 30 calendar days after receipt of written notice of the same OR the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 calendar days of filing.
Company may terminate this agreement and/or any Order Form with 10 days written notice to customer in the event of failure to remit on balances outstanding for 60 days or more.
In addition, either party may terminate this Agreement immediately on written notice to the other party, in the event of any breaches relating to Intellectual Property.
3.3.2 Effect of Termination
Upon the effective date of termination of an Order Form, Company will immediately cease providing the applicable Services and all payment obligations of Customer for Services provided through the date of termination will immediately become due. If Customer fails to pay such amounts on the date due, then Company may impose the late fees set forth below.
Upon termination of this MSA, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement.
Customer will remove, package and ship (shipping charges will be paid by Company and such removal and packaging to be undertaken in a commercially reasonable manner) all Company Equipment back to Company within 15 calendar days of effective date of termination. If Customer fails to do so, Company will have the right to (a) charge the Customer and the Customer will pay the fair market value of the Company Equipment; or (b) recover and take possession of such Equipment, and for this purpose may enter any premises of Customer where such equipment is located during normal working hours to remove Company Equipment. Customer will promptly surrender the Company Equipment to Company in as good order and condition as originally delivered, reasonable wear and tear excepted.
If Company terminates this Agreement for Customer’s uncured breach, Customer shall pay Company as liquidated damages, and not as a penalty, the monthly fees owed by Customer at the time of such termination multiplied by the total number of months remaining in current Term, together with any other fees of all third parties contracted by the Company on behalf of Customer.
Termination of any Order Form shall not affect any other Order Form then in effect, unless the parties otherwise specifically agree in writing, and this MSA shall continue to govern such other Order Form until each such Order Form has terminated in accordance with its terms. Termination of this MSA shall automatically terminate or cancel each Order Form.
4 Pricing and Payment Terms
4.1 Fees and Expenses.
Customer shall pay all fees due according to each Order Form. The fees listed in each Order Form will remain in effect during the Initial Term indicated in such Order Form and any subsequent Renewal Terms unless modified by change order.
4.2 Changes to Price Schedule.
Prices are locked in for the duration of the Initial Term.At any time after the Initial Term, Company may change any of the fees it charges Customer for any Service.Such changes in fees shall be effective 30 calendar days after Company provides written notice to Customer of the change. If Company increases fees, then within 10 calendar days from the date of the foregoing notice from Company, Customer may provide written notice to Company that it rejects the changed fees. If Company receives a rejection notice, then within 10 calendar days thereafter, Company shall elect either to continue to provide the Services under the prior terms or terminate the affected Order Form, which decision shall be effective 10 calendar days after notice of same to Customer.
4.3 Failure to Remit.
Fees will be invoiced in accordance with each Order Form. Customer’s failure to remit payment in accordance with each Order Form shall constitute a material breach of this Agreement.
4.4 Late Payments.
Any payment not received within 30 calendar days of the date of the invoice will accrue interest at a rate of one and one-half percent (1.5%) per month.
5 Confidential Information and Intellectual Property
Each party acknowledges that it will have access to certain confidential information of the other party ("Disclosing Party") concerning theDisclosing Party's business, plans, vendors, employees, customers, technology, products, and other confidential information of Disclosing Party (collectively, “Confidential Information”). Confidential Information includes all information in tangible or intangible form that is marked or designated as confidential by the Disclosing Party or that, under the circumstances of its disclosure, should be considered confidential.The Disclosing Party (or its providers) owns all right, title and interest, including all IP Rights in Disclosing Party's Confidential Information.
Confidential Information includes Company Technology, Customer Technology, and the terms and conditions of this MSA and each Order Form. Each party will take reasonable precautions to protect the confidentiality of the Confidential Information of the Disclosing Party that are at least as stringent as it takes to protect its own Confidential Information.
Information will not be deemed Confidential Information if such information is proven by the receiving party to have been known to the receiving party prior to its receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party, to have become publicly known, except through a breach of this Agreement by the receiving party; or to have been entirely independently developed by the receivingparty without use of or reference to the Confidential Information of the Disclosing Party.The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or applicable law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the Disclosing Party to contest such disclosure.
5.2 Intellectual Property
Except as provided in Section 1, all rights title and interest, including all IP rights, to the Company technology are the sole property of the Company. Except as provided in Section 1, all rights title and interest, including all IP rights, to the Customer technology are the sole property of the Customer.Company and Customer each agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets or know-how in or underlying any software or technology of the other party.
5.2.2 General Skills and Knowledge.
Notwithstanding anything to the contrary in this Agreement, Company is not prohibited or enjoined at any time from utilizing any skills or knowledge of a general nature gained or created by Company during the course of providing the Services, including, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Company.
5.2.3 Use of Data
Company is authorized to publish, share or otherwise distribute, to any party, analytics, statistics or other data related to Customer’s API, web service, portal or proxy usage, provided that such data are aggregated with the data from other Company customers or users in a manner that does not allow Customer’s data to be separated from the aggregate data and identified as relating to Customer.
6 Company Representations and Warranties
Company warrants it will perform the Services in this agreement and any Order Forms in a professional manner consistent with industry standards and in accordance with any service level agreements attached to each Order Form. Company warrants that it has the legal right to enter into this Agreement and perform its obligations thereunder. Company's performance of its obligations and delivery of the Services will not violate any applicable U.S. laws, rules or regulations or cause a breach of any agreement to which Company is a party.
In the event of a breach of the warranties in this Section 6.1, Customer’s sole remedy is termination of this MSA pursuant to Section 3.2.
6.2 Warranty Disclaimer.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS MSA, THE SERVICES ARE PROVIDED SOLELY ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE SERVICES IS AT ITS SOLE RISK. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, (INCLUDING WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE) IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
6.3 Disclaimer of Third Party Actions
Company does not and cannot control the flow of data to or from the Company Network or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties such as Cloud Service providers. At times, actions or omissions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Company will use commercially reasonable efforts to remedy and avoid such events, but Company cannot guarantee that such events will not occur. Accordingly, Company disclaims any and all liability resulting from, or related to, such events.
7 Customer Warranties
7.1 General Warranties
Customer represents, warrants and covenants for the Term that it has the legal right and authority, and will continue to own or maintain the legal right and authority, to use any Customer Equipment or Customer Technology as contemplated under this Agreement. Customer will not violate any applicable law, regulation, or cause a breach of any agreement with any third party or unreasonably interfere with use of the Services offered by the Company to third parties.Customer further warrants that is will use the Services only for lawful purposes and in accordance with this MSA and each Order Form.
7.2 Breach of Warranties
In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Company will have the right, in its sole absolute discretion, to suspend immediately any of the Services to prevent harm to Company or its business.Once cured, Company will promptly restore the Services.
8 Limitation of Liability
8.1 Customer Equipment
Company is not liable for any damage to, or loss of, any Customer Equipment resulting from any cause other than from the willful misconduct of Company. Further, to the extent Company is liable for any damage to, or loss of, Customer Equipment, such liability will be limited solely to the then-current replacement value of the Customer Equipment, excluding lost data, software and firmware.
8.2 Exclusive Waiver
EXCEPT FOR A BREACH OF SECTION 5.1 AND AN INDEMNIFER’S LIABILTY FOR LOSSES UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OFSERVICE OR EQUIPMENT, EVEN IF ADVISEDOF THE POSSIBILITYOF SUCH DAMAGES,WHETHER ARISING UNDER THEORYOF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY'S TOTAL LIABILITY TO CUSTOMER FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THE AGREEMENT OR THE SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Each party (each, as an "Indemnifier") will indemnify, defend and hold harmless the other party (each, as an "Indemnified Party") from and against any and all costs, liabilities, losses, and expenses (including, reasonable attorneys' fees and costs) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (collectively, "Actions") brought by any third party against the Indemnified Party in connection with (a) the infringement of any such third party's IP Right byIndemnifier in connection with the Company Network, Company Technology, Customer Equipment, Customer Technology, or the Services (but excluding any infringement caused by the Indemnified Party); or (b) any violation of Indemnifier, or failure by the Indemnifier to comply with, this Agreement or any applicable law, rule or regulation.
Further, Customer will indemnify, defend and hold harmless Company, its affiliates and customers from and against any and all Losses resulting from or arising out of any Action related (x) to any Customer or third party content or transactions originating from or involving Customer or its providers or customers or (y) any damage or destruction to the Company Equipment or Customer Equipment caused by Customer, or any of its agents, representatives or designees.
Each party’s indemnification obligations hereunder shall be subject to: (i) receiving prompt written notice of the existence of any Action; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the indemnified party to participate in the defense of any Action; and (iv) receiving full cooperation of the indemnified party in the defense thereof.
10.1 Force Majeure
Except for Customer’s obligation to make payments to Company, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or omissions of Company). If Company is unable to provide Service(s) for a period of 30 consecutive calendar days as a result of a continuing force majeure event, Customer may cancel the Services upon written notice to Company.
Both parties agree that, during the Term either party may publicly refer to the other, orally and in writing, as a customer/vendor of the other and may publish the other’s name and/or logo on its website or promotional materials. Customer consents to the inclusion of Company’s logo with a link to Companywebsite, on Customer’s developer portal. Customer consents to the inclusion of Customer’s logo on Company’s website, with a link to Customer’s developer portal. In addition, Customer shall participate in press releases, case studies and other promotional activities as reasonably requested by Company. Any other reference to either party by the other requires the written consent of the party being referred to.
10.3 Government Regulations
Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information in violation of export control laws or regulations of the U.S. Government or of any country within whose jurisdiction Customer operates or does business.
During the Term and for the first year following expiration or any other termination of this Agreement, Customer agrees it will not, and will ensure that its affiliates do not, directly or indirectly, solicit for employment any person employed by Company or contracted by Company to provide Services. Company agrees to the same terms and conditions with respect to Customer’s employees and/or contractors.
10.5 No Third Party Beneficiaries
Company and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer.
10.6 Governing Law; Dispute Resolution
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of Delaware.
If any provision of this Agreement is held invalid by a court or Arbitration Tribunal, then the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach in this Agreement will not constitute a waiver of any subsequent breach or default, and will not negate the rights of the waiving party.
Upon the prior written notice to Company, Customer may assign this Agreement in connection with a corporate reorganization, consolidation, merger, or sale of substantially all of its assets; provided that, the assignee’s financial condition and credit rating is comparable to or better than that of Customer and (as would be reasonably determined) the proposed assignee is not one of the Company’s competitors. Customer may not otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Company, and any attempted assignment or delegation without such consent will be void. Company may freely assign or delegate this Agreement in whole or in part. Company also may delegate the performance of certain Services to third parties, including Company’s wholly owned subsidiaries, provided Company controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
Any notice required or permitted to be given under this Agreement shall be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Order Form or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
10.10 Relationship of Parties
Company's and Customer's relationship is solely that of independent contractors, and this Agreement will not establish any partnership, joint venture, employment, franchise or agency between Company and Customer. Neither Company nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
Entire Agreement/Amendment; Counterparts; Originals.
This Agreement, constitutes the sole, final and entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous understandings, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or other Customer communication shall be of no effect and not be binding upon Company. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may only be amended by a written document signed by authorized representatives of Company and Customer.
Sections 3.3.2, 4, 5, 6.2, 6.3, 8, and 9 shall survive expiration or termination of this Agreement for any reason.
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Evgeny, Vlad, and the Apiphany team