This Master Services Agreement [which, along with one or more ordering documents for services signed by you and Certain, Inc. (each an “Order Form”) constitute the “Agreement”] is entered into effective as of such Order Form signature date (the “Effective Date”). The Agreement refers to your company as “you” or “your,” and Certain, Inc. and our affiliates as “us,” “we,” or “our.” The Agreement contains the terms and conditions under which we will provide software services to you on a subscription basis, as well as related services such as support, maintenance, onboarding and implementation (the “Services”). It shall control over any different or additional terms of any purchase order or other non-Certain ordering document, and no terms in any such order or document shall apply to the Services. If a term in the Sections of this Agreement conflicts with an Order Form, the Order Form shall control.
1. Description of Services.
A. Order Form. The Services and their pricing are described in the Order Form. Each party represents and warrants it has the legal authority to enter into this Agreement.
B. Professional Services. If you decide to purchase specific professional services such as customization, event build, or other consultation services, the terms and conditions of such services will be defined in a separate Professional Services Agreement and Statement of Work.
C. Support and Maintenance. These standard Services may be product support, enhancements, modifications, updates, corrections or a subsequent release or version of the Services we generally make available to our customers under our Product Support Services Level Agreement incorporated by reference at Certain Support Datasheet.
D. Tools. We may use tools, software and utilities (“Tools”) to administer the Services and help resolve your requests. Except as necessary for such functions, the Tools do not collect, report, or store any data received from you and your customers (collectively, “Customer Data”) residing in the Services.
E. Statistics. We may compile statistical and performance information related to the Services but do not incorporate Customer Data or your Confidential Information (as defined in Section 9). We retain exclusive ownership and rights in such statistics.
F. Warranty. We warrant the Services (a) substantially conform to our online documentation under normal use and (b) are performed consistent with generally accepted industry standards. You agree to notify us in writing within thirty (30) days after performance of particular Services of any warranty deficiencies in sufficient detail so we may investigate. For a breach of this express warranty, we will re-perform the deficient Services and if we are unable to re-perform them as warranted, you are entitled to recover the portion of fees paid for such deficient Services as your exclusive remedy and our sole liability.
3. Your License to Access the Services. We grant you, during the period specified in the Order Form for accessing the Services (the “Term”), a nontransferable, non-exclusive, limited license to use the Services solely for your internal business operations under this Agreement and the pertinent Order Form. If we provide a mobile app (each a “Mobile Application”) for end user download as part of the Services, we will submit the Mobile Application client software to the appropriate distribution channel and alert you when the Mobile Application is available for download and use. We exclusively own all right, title and interest in all information, content, and intellectual property rights related to the Services as our Confidential Information and we reserve any rights not expressly granted. With regard to the Services, you agree to not (a) modify, disassemble, decompile, or reverse engineer any part, including without limitation related software or another customer’s data; (b) copy or reproduce any part; (c) access or use any other customer’s data; (d) breach any security measure we provide; (e) reduce or impair accessibility; (f) direct anyone to enter cardholder data anywhere except encrypted fields which provide cardholder data security; (g) remove any copyright, trademark, or other proprietary rights notices; or (h) use the Services for any purpose that may (i) harass or cause damage to any person or property; (ii) display content that is false, defamatory, obscene, or offensive; (iii) promote racism or hatred; (iv) constitute unsolicited bulk e-mail, junk mail, or spam; (v) infringe intellectual property, privacy, or other third party rights; or (vi) violate any applicable law. Upon any violation, we may remove or disable access to any prohibited material and/or terminate the license and Services, and you agree to defend and indemnify us for any related claims.
Invoices itemize any Services, overages, and taxes or other governmental charges. If you provide credit card information for payment, you authorize us to bill that card when you order any Services in an Order Form. When paying by another method, we invoice you at the time of the Order Form and about one (1) month before the start of any renewal or subsequent billing period. Payment in full is due within thirty (30) days of the invoice date unless a different payment term is stated in the Order Form. Except as expressly stated in a Order Form, all fees are irrevocable and nonrefundable due to our substantial up-front investment of time and resources in implementing the Services. Suspension of Services due to nonpayment does not waive any payment obligation. If an account is sixty (60) days or more past due, (a) any unpaid amounts in the Order Form accelerate and are immediately due and payable (after full payment, restoration of Services for the remainder of the Term may be requested) and (b) we reserve the right to permanently delete any Customer Data.
You agree to notify us (a) if your credit card information changes or expires (and we will make appropriate updates) or (b) If you believe your account is no longer secure (such as in the event of a loss, theft or unauthorized disclosure, or use of your ID, password, or any credit card number).
5. Term and Termination.
A. Initial Term and Renewal. The initial Term commences on the Effective Date. Except as otherwise expressly stated in the Order Form, (a) automatic renewal for additional Terms of twelve (12) months each shall occur unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Term and (b) any renewal Term is subject to our pricing and terms in effect on the renewal date.
B. Early Termination by Either Party. Either party may terminate this Agreement and the Order Form (a) immediately if the other party ceases doing business in the normal course or becomes the subject of a bankruptcy proceeding or (b) upon the other party’s breach that is not cured within thirty (30) days of written notice specifying the breach in detail. If you are the breaching party, we reserve the right to immediately suspend your access and use of the Services during such cure period.
C. Effect of Termination. Upon any termination of the Order Form, all right to access and use the Services immediately ceases. If you are not in breach of this Agreement or an Order Form, upon receiving your written request within ninety (90) days after termination, we will make available to you a file of your Customer Data then in our possession. We assume no obligation to retain Customer Data more than ninety (90) days following termination and we may in our sole discretion permanently delete it. If we have provided mobile apps (each a “Mobile Application”) for end user download from mobile app distribution channels under this Agreement, we will promptly remove your client Mobile Application from the pertinent distribution channel. Existing end users of a Mobile Application will continue to be able to use it for as long as the technology remains viable, but we will be under no obligation to support, update, fix any issues or otherwise keep current the Mobile Application. Your access to the content management system in a Mobile Application immediately ceases upon termination. The following provisions survive any termination: Sections1D, 1E, 1F, 2, 4, 5C, 6, 7, 8, 9, 10, 11, 12, and 14.
6. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTY IN SECTION 1(F) ABOVE, ALL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT, AND THE RESULTS OBTAINED THEREBY. YOU ACKNOWLEDGE WE DO NOT CONTROL OR HAVE RESPONSIBILITY FOR TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES SUCH AS THE INTERNET AND THAT SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER FACTORS INHERENT IN USING SUCH FACILITIES.
7. Limitation of Liability. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, (EXCLUDING FEES UNDER THIS AGREEMENT), OR ECONOMIC ADVANTAGE RELATED TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF THE PARTY FROM WHICH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING CLAIMS BASED ON GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CERTAIN, INC. EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY YOU TO US IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATION OF OUR LIABILITY IN THE PRIOR SENTENCE DOES NOT APPLY TO OUR INDEMNITY OBLIGATIONS IN SECTION 8 BELOW. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above exclusions may not apply to you.
8. Infringement Claim Procedure.
A. Indemnification. One party (the “Provider”) may provide the other (the “Recipient”) information, designs, specifications, instructions, software, data, content, or other material (collectively, “Material”). If a third party claims that any Material infringes its intellectual property rights, as the parties’ exclusive remedy for any infringement claims or damages, the Provider will indemnify the Recipient against the claim, subject to the Recipient (a) notifying the Provider promptly in writing not later than thirty (30) days after the Recipient receives notice of the claim, or sooner if required by applicable law; (b) giving the Provider sole control of the defense and any settlement negotiations; and (c) giving the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
B. If We are the Provider. If we believe or it is determined that any Material may have violated a third party’s intellectual property rights, we may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or, if these alternatives are not commercially reasonable, we may terminate the license under Section 3 above, and require return of, the applicable Material and refund the pro-rata portion of any unearned, prepaid fees you have paid applicable to the terminated license or Services.
C. If You are the Provider. If the return of your Material materially affects our ability to meet our obligations under the Order Form, we may in our sole discretion, and upon thirty (30) days’ prior written notice to you, terminate the Order Form.
D. Exclusions. The Provider will not indemnify the Recipient (a) if the Recipient (i) alters the Material, (ii) uses it outside the scope of use identified in the Provider’s user documentation, or (iii) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of such Material or (b) to the extent an infringement claim is based upon any Material not furnished by the Provider or upon the combination of any Material with any products or services not furnished by the Provider.
A. Confidential Information. Each party (the “Receiving Party”) may have access to information that is confidential to the other party (“Confidential Information” and the “Discloser”). This includes any information clearly identified in writing at the time of disclosure as confidential. You and we agree that one example of ours is any software and other Material.
Confidential Information does not include information that (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained directly or indirectly from the Discloser; (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party without reference to the Discloser’s Confidential Information.
B. Non-disclosure and Restricted Use. The Receiving Party agrees to (a) use reasonable care to prevent disclosure of Confidential Information to any third party for a period of three (3) years from the date it accesses it and (b) use Confidential Information only for the purposes of this Agreement. Notwithstanding the foregoing, you agree that we may disclose your Confidential Information to our third party providers to the extent necessary to provide the Services, provided that we have a non-disclosure agreement in place with them that is no less protective than this Agreement. A disclosure of any Confidential Information, either (a) in response to a valid order by a court or governmental body having proper jurisdiction, or (b) as otherwise required by law, is not a breach of this Agreement or a waiver of confidentiality for other purposes, but the Receiving Party shall provide prompt prior written notice to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or limit such disclosure.
10. Your Responsibilities.
A. Cooperation and Information. You agree (i) to provide us assistance, information, and materials reasonably required for the Services (collectively, the “Customer Materials”); (ii) to diligently market and promote to prospective and existing end users the Mobile Application(s) that is used with the Services; and (iii) that the Customer Materials are accurate and complete and may be relied upon without independent verification. The Services may depend on your completion of certain tasks or adherence to agreed-upon schedules. The schedule for the Services may require adjustments if such tasks or schedules are modified or are not completed as anticipated; we will have no liability or be responsible for such adjustments.
B. Your Business Operations. You agree to (a) ensure any use of the Services complies with this Agreement, (b) obtain any consents required for the Services, and (c) ensure your network and systems comply with specifications we provide you (we are not responsible for your network connections or any related conditions). As to your transactions with your customers, suppliers, and other third parties, you agree that (a) they are solely between you and them, (b) we have no liability for your performance or failure to perform, and (c) you will defend and indemnify us from any related claims and liabilities.
11. Notices. We may give notice by email, or first class mail or pre-paid post, to your email or mailing address on record in our account information. You may notify us in writing and sent by first class mail, pre-paid post, overnight carrier or hand delivered to: Certain, Inc., 75 Hawthorne Street, Suite 550, San Francisco, CA 94105, Attention: Chief Financial Officer.
12. Force Majeure. Neither party is responsible for failure or delay of performance if caused by an act of God, terrorism, telecommunication outage not caused by the obligated party, government restrictions, or any other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect. If such event continues for more than ninety (90) days, either party may cancel the unperformed obligation upon written notice. This does not excuse a party’s duty to follow its normal disaster recovery procedures or your obligation to pay for the Services.
13. Publicity. We may list you as a customer and your logo on our website.
14. General Provisions. This Agreement is governed by California law and controlling U.S. federal law, with exclusive jurisdiction in the state courts of San Francisco, California and federal courts of the Northern District of California. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules are expressly excluded. This Agreement and information incorporated by written reference, such as in a URL or referenced policy (which may be revised from time to time in our sole discretion), together with the Order Form, represent the parties’ entire understanding relating to this Agreement’s subject matter and supersedes all prior or contemporaneous oral or written agreements, representations or negotiations. Amendments require the parties’ written consent. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be construed to reflect its intentions, with all other provisions remaining in full effect. No joint venture, partnership, employment, or agency exists between the parties due to this Agreement or the Services. You may not assign this Agreement without our prior written approval. Either party’s failure to enforce any right or provision is not a waiver unless agreed by such party in writing. Except for actions for nonpayment or breach of our proprietary or intellectual property rights, no action of any kind relating to this Agreement or Services may be brought by either party more than two (2) years after the cause of action accrued. This Agreement may be executed in counterparts and by fax and other electronic means, which taken together shall constitute one original instrument.