MASTER SERVICES AGREEMENT
THIS AGREEMENT GOVERNS YOUR USE OF OUR SERVICES. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES AND MUST NOT ACCEPT THIS AGREEMENT.
You may not access the Services for any benchmarking or competitive purposes, including monitoring the availability, performance or functionality of the Services. This Agreement was last updated on September 1, 2015. It is effective as of the date of Your execution of an Order Form.
The parties agree as follows:
“Gift Recipient” means the recipient of User Content, as defined below, as designated by a User.
“Integration Guide” means the guide and help materials, as may be updated from time to time, which shall be provided by Us to You for the purpose of instructing You on the correct implementation of the Services into Your website or mobile application.
“Order Form” means an ordering document specifying the Services (and associated terms) to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto. Order Forms shall be deemed incorporated herein by reference.
“Services” means the services that are ordered by You under an Order Form and made available by Us, branded under the name “GiftPixel.”
“Terms of Service” means the Terms of Service located on Our website, which governs Users’ use of the Service and relationship with Us, including any successor Terms of Service content.
“User” means any individual who uses any of Our Services via Your website or mobile application to send a gift message to Gift Recipient.
“User Content” means any electronic data and information submitted by a User into the Services, including but not limited to text, photographic or video messages (a “Gift Message”), Gift Recipient email addresses, User identifying information, and any other information that may be required for the Services to work as intended.
“We,” “Us,” or “Our” means RNCommerce, Inc., including its officers, employees, contractors or agents.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, including any of that company or legal entity’s officers, employees, contractors or agents.
“Your Data” means electronic data and information submitted by You for the purpose of Our administration of the Services.
1.1 Provision of Services. We shall (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 8:00 p.m. Friday and 5:00 a.m. Monday Pacific time), or (ii) any unavailability caused by circumstances beyond Our reasonable control, including but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack, and (c) provide the Services in accordance with applicable laws and government regulations when used according to this Agreement and Our Integration Guide.
1.2 Protection of Your Data. We shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data and User Content. Those safeguards shall include, but shall not be limited to, measures for preventing access, use, modification or disclosure of Your Data by third parties or by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below, or (c) as expressly permitted in writing by You.
1.3 Removal of User Content. If We are required to or elect to remove User Content, or receive information that User Content may violate applicable law or third-party rights or the Terms of Service, We may notify the applicable User and may promptly remove such User Content and the ability for User or Gift Recipient to access the applicable Gift Message, from Our systems.
2. USE OF SERVICES
2.1 Gift Message Limits. You may be charged for use of the Services per Gift Message, or a fixed monthly fee for a specific number of Gift Messages a month. Such fee structure shall be designated in the applicable Order Form. Any applicable Gift Message limits shall be specified in the applicable Order Form. Such Order Form shall specify the charges for excess Gift Messages per month, and You agree to pay such fees for excessive usage in accordance with the “Invoicing and Payment” section below, as may be applicable.
2.2 Your Responsibilities. You shall use Services only in accordance with this Agreement and applicable laws and government regulations. You shall not (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, (c) use a Service to knowingly store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to knowingly store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of any Service, (f) attempt to eliminate the feature of the Services which requires Users to accept Our Terms of Service prior to sending a Gift Message, (g) attempt to gain unauthorized access to any Service or its related systems or networks, (h) access any Service in order to build a competitive product or service, or (i) to the extent such restriction is permitted by law, reverse engineer any Service.
3. FEES AND PAYMENT
3.1 Fees. You shall pay Us the amounts and in the manner and time set forth in the applicable Order Forms. Except as otherwise specified herein or in an Order Form, all payment obligations under any and all Order Forms are non-cancelable and fees paid are non-refundable except as set forth in Section 9.3 below (“Refund or Payment upon Termination”).
3.2 Invoicing and Payment. Fees for the Service will be invoiced to You in accordance with the relevant Order Form and payment will be remitted from the United States. Except as set forth in an Order Form, all fees due hereunder (except fees subject to a good faith dispute), shall be due and payable within thirty (30) days of invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
3.3 Overdue Charges and Suspension of Service. Any payment not received from You by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Our discretion, interest at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any charge owing by You is 30 days or more overdue (except those charges then under reasonable and good faith dispute), We may, without limiting our other rights and remedies, suspend Services until such amounts are paid in full, provided We have given You at least 15 days’ prior notice that Your account is overdue in accordance with the “Notices” section below.
3.4 Taxes. Our fees do not include in its price any taxes that arise as a result of the services provided to You. These taxes may include, but are not limited to, any local, state, federal or foreign taxes, levies, duties or other similar governmental assessments of any nature, including value-added, goods and services taxes, excise, use or similar taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with this Agreement. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You. For clarity, We are solely responsible for taxes assessable against Us based on its income, property and employees.
3.5 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any comments made by Us regarding future functionality or features.
4. PROPRIETARY RIGHTS AND LICENSES
4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our rights, title and interests in and to the Services, including all of Our related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
4.2 License by You to Host Your Data. Subject to the terms and conditions of this Agreement, You grant to Us a non-exclusive, worldwide, limited-term, royalty-free license to use, display, host, copy, transmit and distribute Your Data and Your intellectual property, including trademarks, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We shall not acquire any right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, or in or to any intellectual property owned by You.
4.3 License by Us to Use Content. We grant to You a non-exclusive, worldwide, limited-term, royalty-free license to use, display, host, copy, transmit, and distribute the Services and intellectual property as necessary for You and for Users to use the Services in accordance with this Agreement. Subject to the limited licenses granted herein, You shall not acquire any right, title or interest from Us or Our licensors under this Agreement in or to any Confidential Information, as defined below, or intellectual property owned by Us.
4.4 License by You to Use Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
5.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care), and further agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, as the case may be, and contractors who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations with the Receiving Party no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliates, legal counsel or accountants shall remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6. MUTUAL INDEMNIFICATION
6.1 Indemnification for Intellectual Property. Each party agrees, at its own expense, to defend, protect, indemnify, and hold harmless the other party and its affiliates, and any of their directors, officers, employees, agents and subcontractors, (collectively, the “Related Parties”) harmless from and against any action or threatened action, suit, claim, proceeding or regulatory action brought by a third party (and all related expenses, including reasonable attorneys’ fees, judgments, fines, costs, amounts paid in settlement or any loss or damage related thereto)(collectively, “Claims”) to the extent that such cause of action is based upon a claim that any services or products of the indemnifying party infringes a copyright, patent, trade secret, or other intellectual property rights of a third party under the laws of the United States. The Indemnifying Party will pay those costs and damages incurred by each Indemnified Party which are attributable to any such Claim.
1.1 Procedures for Claims. The party entitled to indemnification (the “Indemnified Party”) will provide the party from whom indemnification is being sought (the “Indemnifying Party”) with the following in connection with any Claim for which it seeks defense or indemnity under this Section 6: (i)(i) prompt written notice of such Claim; (ii)(i) sole control over the defense and settlement of such Claim, subject to the provisions of this Section 6; and (iii)(iii) reasonable cooperation and assistance in connection with the defense and settlement of such Claim. The failure to comply with its obligations under the preceding sentence will not relieve the Indemnifying Party of its defense and indemnity obligations under this Agreement except to the extent that it is prejudiced by such failure. The Indemnified Party may approve or reject any counsel proposed or selected by the Indemnifying Party in connection with the defense or settlement of such Claim. The Indemnifying Party will not settle any such Claim without the Indemnified Party's prior express written consent, which will not be unreasonably withheld. The Indemnified Party may participate in the defense or settlement of any such Claim, at its sole cost and expense, with counsel of its choice.
6.3 Substitution. Should any of the Indemnifying Party’s Intellectual Property become, or in the Indemnifying Party’s opinion is highly likely to become, the subject of a claim of infringement, such Indemnifying Party may, at its option, (i) obtain the right for the Indemnified Party to continue using such Intellectual Property; (ii) replace or modify the Indemnifying Party’s Intellectual Property with substantially similar Intellectual Property so that it is no longer infringing or reduces the likelihood that it will be determined to be infringing; or, (iii) if neither of the foregoing options is commercially reasonable, terminate this Agreement.
6.4 Exceptions; Sole Remedy. The Indemnifying Party shall have no liability for any claim of infringement based on: (i) products or services of the Indemnifying Party which have been modified by parties other than the Indemnifying Party; (ii) the Indemnified Party’s use of the Indemnifying Party’s products or services in conjunction with data where use with such data gave rise to the infringement claim; (iii) failure of the Indemnified Party to install upgrades or patches provided by the Indemnifying Party where such upgrade or patch would have removed the infringing condition; (iv) the Indemnified Party’s use of the Indemnifying Party’s products or services in a manner inconsistent with documentation provided with such products or services; or (v) the Indemnified Party’s use of the Indemnifying Party’s products or services with software or hardware not authorized by the Indemnifying Party, where use with such other software or hardware gave rise to the infringement claim. The rights and obligations set forth in this Section 6 shall be the Indemnified Party’s sole and exclusive remedy and the Indemnifying Party’s sole and exclusive liability with respect to claims based on infringement of third-party intellectual property rights.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party hereto represents that it has all necessary right, power, and ability to execute this Agreement and perform the obligations herein.
7.2 Our Warranties. We warrant that (a) We shall not materially decrease the overall security of the Services during the term of an active Order Form, (b) the Services shall perform materially in accordance with this Agreement, Our online Terms of Service, and any applicable Order Forms, (c) We shall not materially decrease the functionality of the Services during the term of an active Order Form, and (d) the Services shall not introduce code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in the “Termination for Cause” and “Refund or Payment upon Termination” sections.
7.3 Your Warranties. You warrant that at all times during the term of this Agreement, Your installation, configuration and use of the Services shall be in compliance with the terms of this Agreement, Our online Terms of Service, and any applicable Order Forms.
7.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ANY LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED SOLELY BY ANY THIRD-PARTY HOSTING AND VIDEO PROCESSING PROVIDERS.
8. LIMITATION OF LIABILITY
8.1 Limitation of Liability. NEITHER PARTY'S LIABILITY TO THE OTHER WITH RESPECT TO ANY SINGLE INCIDENT OR IN THE AGGREGATE ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID OR OWED BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
8.2 Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, REVENUES OR INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY PRODUCTS SERVICES OR SAMPLE CONTENT PROVIDED HEREUNDER WHETHER AN ACTION IS IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. TERM AND TERMINATION
9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all active Order Forms hereunder have expired or have been terminated.
9.2 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.3 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with the “Termination” section above, We shall refund to You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with the “Termination” section above, You shall pay any unpaid fees covering the remainder of the term of all Order Forms. In no event shall termination relieve You of its obligation to pay any fees payable to Us for the period prior to the effective date of termination.
9.4 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.
10. GENERAL PROVISIONS
10.1 Export Compliance. You acknowledge that the Services and Our other technology may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. We represent that we are not named on any U.S. government denied-party list, and You represent that You are not named on any U.S government denied-party list. You shall not permit any User to access or use the Services in violation of any U.S. export law or regulation or in a U.S. embargoed country.
10.2 Notices. Except as otherwise specified in an applicable Order Form, all notices related to this Agreement shall be in writing and shall be effective upon (a) personal delivery, (b) the third business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Notices to Us shall be addressed to the attention of Neil Raina, 4727 Sterling Drive, Fremont, CA 94536, or email@example.com, as may be applicable; notices to You shall be addressed to the relevant contact designated by You, and Legal Notices shall be clearly identifiable as Legal Notices.
10.3 Governing law; Dispute Resolution. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of the State of California without regard to its conflicts of laws provisions or the United Nations Convention on the International Sale of Goods. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach, termination, or validity thereof, the parties shall first seek to resolve the dispute in good faith through informal discussion. If such dispute, controversy or claim cannot be resolved informally, the parties agree that it shall be settled by binding arbitration to be held before a single arbitrator in San Francisco County, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The language of the arbitration shall be English. The arbitrator may grant injunctions or other relief in such dispute or controversy. The arbitrator's decision shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The parties shall each pay one-half of the costs and expenses of such arbitration, and each shall separately pay its respective counsel fees and expenses. The prevailing party may, in the judgment of the arbitrator, be entitled to recover its fees and expenses. The arbitrator is not empowered to award punitive or exemplary damages, except as may be required by statute, or any pre-award interest; nor may the arbitrator award any incidental, indirect or consequential damages, including damages for lost profits or harm suffered by third parties. A final award rendered in connection with arbitration pursuant to this section shall be binding upon the parties, and if fully satisfied within 30 days of being issued, no party may seek to confirm the final award. If a final award is not fully satisfied within 30 days then a party may apply to have judgment upon such an award entered and enforced in any court of competent jurisdiction. The arbitrator shall not have jurisdiction over any dispute relating to ownership, infringement or misappropriation of a party's intellectual property unless the parties specifically so agree in writing in such matter, and either party may (after attempting informal resolution as provided above) submit any such dispute to any court in accordance with this “Governing Law; Dispute Resolution” section.
10.4 Miscellaneous. Each party is an independent contractor of the other and this neither is an employee, agent, partner, fiduciary or joint venture of the other. Neither party shall make any commitment, by contract or otherwise, binding upon the other. Neither party may assign any of its rights or obligations hereunder without the other party’s prior written consent, which is not to be unreasonably withheld, except that either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to an affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or part of such party’s assets or voting securities. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable, contrary to the law or otherwise invalid, the provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in effect. This Agreement is the entire agreement between Us and You regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless signed by both parties. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form, (ii) any exhibit, schedule or addendum to this Agreement, and (iii) the body of this Agreement.