Master Services Agreement
Last modified: December 2020
The Collective[i] Master Services Agreement (this “Agreement”), governs any Order Form listing services and pricing to be delivered by Cross Commerce Media, Inc. d/b/a Collective[i] (“C[i]”, or, as context dictates, “We”, “Us” or “Our”) to the client or customer identified in such Order Form (“Client”, or, as context dictates, “You” or “Your”) (each a “Party” and collectively “Parties”) (the “Order Form”).
Use of the Services.
- General. You and your Authorized Users may access and use the Services in accordance with this Agreement and for Your own internal and commercial business purposes. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to Your use of the Services.
- Authorized Users. An Authorized User is an individual who has registered and been approved for a non-transferable log-in ID and password (“Log-In Info”). Each Authorized User shall have access only to their own Log-In Info, which may not be shared.
- Administrative Users. You may designate one or more of Your Authorized Users to have special administrator access to and privileges associated with the Services.
- Third-Party Services. Use of the Services requires access to application program interfaces (“APIs”) or other service offerings by third parties such as Google for email or Salesforce for CRM (each, a “Third-Party Service”). Any cost or other obligation associated with any such Third-Party Service shall be Your sole responsibility.
Confidentiality, Security and Data Privacy.
- Confidentiality. Neither Party shall disclose Confidential Information of the other Party to any third party; provided, however, that each Party may disclose Confidential Information of the other Party: (i) if required by law, provided that the disclosing Party shall give reasonable notice to the other Party in order to allow it to contest such requirement to the extent permitted by law; and (ii) as may be necessary to employees, consultants, legal advisors or other direct or indirect technology service providers (such as hosting or cloud providers or providers of Third-Party Services) to perform or exercise its rights and obligations hereunder, and then only if the same is subject to confidentiality restrictions at least as protective as those set forth herein. C[i] shall not be liable if You or any End User shares Your Confidential Information with any third party through the use of any feature or functionality of the Services.
- Security. Without limiting Section 7 or Your obligations under Section 3.2, C[i] will implement, at its discretion, reasonable and appropriate measures designed to help You secure Your Content against accidental or unlawful loss, access or disclosure.
- Data Privacy. You control the users, technologies and data sources to which You grant access and may change such access at any time. C[i] will limit its access to those systems that You expressly approve to be accessed but is relying on You to ensure that you have the right to grant access.
- Your Accounts. Except to the extent caused by our breach of this Agreement, (a) You are responsible for all activities that occur under Your account, regardless of whether the activities are authorized by You or undertaken by You, Your employees or a third party (including Your contractors, agents or End Users), and (b) We and our affiliates are not responsible for unauthorized access to Your account. C[i] reserves the right to remove any Authorized User for a violation of our network policies.
- Your Authorized Users. You shall ensure that Your End Users will not (i) use the Services to defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others; (ii) engage in any conduct that is characterized by, or encourages, bigotry or discrimination of any form; or (iii) engage in scraping, data mining, harvesting, screen scraping, data aggregating or indexing, or allow or facilitate any other party in doing so, and You agree to be responsible for any third-party claims, damages, liabilities and/or losses arising out of any of the actions set forth in clauses (i)-(iii). As the Services are highly automated, C[i] cannot review, endorse, police or enforce the activities that may be undertaken by You or any other users of the Services.
- Log-In Info. Log-In Info generated by the Services are for Your internal use only and You will not sell, transfer, share or sublicense them to any other entity or person, except that You may disclose Your Log-In Info to Your agents and subcontractors performing work on Your behalf.
- End Users. You will be deemed to have taken any action that You permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Services. You are responsible for End Users’ use of Your Content and the Services. You will ensure that all End Users comply with Your obligations under this Agreement and that the terms of Your agreement with each End User are consistent with this Agreement. If You become aware of any violation of Your obligations under this Agreement caused by an End User, You will immediately suspend their access to Your Content and the Services.
C[i] reserves the right to, and may at any time with or without notice, restrict or suspend Your or any End User’s right to use or access the Services if C[i] determines, in its sole discretion, that: (a) such access or use may pose a security risk to the Services or any of its users; (b) such access or use may adversely impact the Services or the systems or data of any user; (c) such access or use may subject C[i] or any of its affiliates or any third party to liability; (d) such access or use could be fraudulent, (d) You are, or any End User is, in breach of this Agreement; (e) You are in breach of Your payment obligations under the Order Form, (f) such access or use has been enjoined or is being investigated by a governmental authority; or (g) You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If We suspend Your right to access or use any portion or all of the Services, You shall remain responsible for all fees and charges You incur during the period of suspension.
- By Either Party. Either Party may terminate this Agreement for convenience in accordance with the Order Form, or for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of forty-five (45) days following receipt of written notice by the other Party.
- By C[i]. C[i] may terminate this Agreement immediately upon notice to You (a) for cause if C[i] has the right to suspend under Section 4; (b) if You breach any payment obligation and do not cure such payment breach within ten (10) business days of receiving written notice thereof; or (c) in order to comply with the law or requests of governmental entities.
- Post-Termination. Upon termination of this Agreement, You shall be responsible for disabling C[i]’s access to Your Content and data sources, and C[i] shall in no event be liable to You for any consequences related to Your failure to disable such access.
- Your Content. You shall, subject to the terms and conditions hereof, retain all right, title, and interest in and to: (x) any and all of Your Content; and (y) any graphics, logos, service marks, and trade names lawfully owned by You.
- Adequate Rights. You hereby represent and warrant to C[i] that You are not subject to any agreement, contract, covenant, provision, policy, terms and conditions, law, rule, regulation, order, decree or other restriction that would prevent You from using the Services.
- License to the Services. C[i] or one or more of its affiliates (and its and their respective licensors and suppliers) retains all right, title, and interest in and to the Services, and all related technology, intellectual property rights, business models, documentation, reports, analyses and frameworks. For the duration of the Term, We grant You a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Services solely in accordance with this Agreement. Such license to access and use the Services does not include a license or other rights to any of the underlying technology infrastructure or code used to provide the Services.
- License Restrictions. You may not reproduce, create derivative works of or modify the Services; use the Services to interfere with any third party’s use of the Services; or access the Services for the purpose of competing with C[i], or for purposes of monitoring its availability, performance or functionality, for any benchmarking purposes, or for any reason other than the purposes for which the Services are intended to be used.
- License to C[i]. In addition to specific information and data analytics provided to clients in connection with the Services, C[i]’s clients benefit from access to a larger business network of insights developed by C[i], based on analysis of aggregated data obtained by C[i] from various sources (including You). Accordingly, You grant C[i] a permanent, nonexclusive, worldwide, royalty-free and fully paid license and right to use and maintain stores of Your Content. C[i] may use and continue to use, any and all such data, may reproduce, analyze, modify and create derivative works from such data, and may distribute and display such data in the aggregate, or as aggregated with other data collected or provided by C[i] and others, in connection with the products and services C[i] provides.
- Suggestions. C[i] welcomes requests, instructions or other suggestions related to the Services, but in making the same, Your suggestions will become the property of C[i], and C[i] has no obligation to compensate You for such suggestions, whether or not used by C[i].
- Usage Information.. C[i] may collect, use and store information regarding End Users’ use of the Services to support and improve the Services.
- DISCLAIMER OF WARRANTIES.
TO THE FULL EXTENT PERMITTED BY LAW, C[i] AND ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE C[i] SOLUTION, OR ANY OTHER PRODUCT OR SERVICE, DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, AND QUIET ENJOYMENT. WITHOUT LIMITING THE FOREGOING, C[i] DOES NOT WARRANT OR REPRESENT THAT THE C[i] SOLUTION, OR ANY SUCH PRODUCT OR SERVICE WILL BE CONTINUOUS, SECURE, RELIABLE, UNINTERRUPTED OR ERROR-FREE.
- Limitations of Liability.
While it is anticipated that You will benefit from Your use of the Services, any business decisions You (and/or Your Authorized Users, employees, agents and/or consultants) make based on or in any way related to such use, or to any information, analysis, data, advice or recommendations derived from such use, or provided by C[i], shall at all times be and remain solely Your responsibility. C[i] is not, and shall not be, liable for: (i) any consequences of Your conduct or decisions (and/or those of Your Authorized Users, employees, agents and/or consultants), even if based on any information or advice provided by C[i] or the C[i] Solution; (ii) Your business or operations, including the way in which You (and/or Your Authorized Users, employees, agents and/or consultants) use the C[i] Solution in connection with Your business or operation; (iii) any unauthorized modification of the C[i] Solution; or (iv) the use of the C[i] Solution by You (and/or Your Authorized Users, employees, agents and/or consultants) for a purpose for which it was not intended or in violation of this Agreement. Under no circumstance shall C[i] (including its directors, officers, employees, representatives, agents and suppliers) be liable to You for any indirect, incidental, special, consequential or punitive damages, or any loss of data, opportunities, reputation, profits or revenues, and in no event shall C[i] be liable for any amount(s) greater than the total amount(s) paid by You to C[i] during the twelve (12) month period immediately preceding any event or occurrence deemed to give rise to any such liability.
Neither Party will use the other Party’s name, logo, trademarks or service marks in any press release or any other public announcement without the prior written approval of such other Party, except that C[i] may in its discretion indicate in its marketing materials (including in listing clients on its website) that You are a client of C[i], and may display Your name, logo, trademarks or service marks solely for such purpose. Nothing in this Agreement shall prevent either Party from making any statement about its business relationship with the other or otherwise making public or private statements in the normal course of its business that do not disclose the specific terms of this Agreement. Neither Party will publicly or privately disparage the other Party or its services or business, including through the use of any C[i]-provided tools, services and/or other resources.
For the Initial Term, any applicable Renewal Term and for a period of twelve (12) months following any termination or expiration hereof for any reason whatsoever, You shall not, either directly or indirectly, solicit, induce, recruit or encourage any of the current employees, officers, or directors of C[i] or its affiliates to terminate or leave their employment, engagement or position; provided, however, that the foregoing shall not prevent You from (i) engaging in any general solicitations for employment (not specifically targeting C[i]’s current employees, officers, or directors or its affiliates) directly or through any agent (including placement and recruiting agencies) and hiring any person as a result thereof; or (ii) hiring any person who contacts You on their own initiative without any direct or indirect solicitation from You.
Each Party represents and warrants that the individual executing this Agreement on behalf of a party under this Agreement is authorized to do so. Each of C[i] and Client further represents, warrants and covenants that by executing this Agreement and the Order Form it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its rights or property is or may become subject or bound.
Any rights or remedies of either Party arising out of a breach or violation by the other Party of the Agreement and/or the Order Form will survive any expiration or termination hereof and/or thereof, as applicable. Any and all provisions hereof which by their terms may be reasonably expected to survive any expiration or termination of this Agreement, including but not limited to those relating to confidentiality, ownership, indemnification, limitations of liability and publicity, shall survive any expiration or termination hereof.
- Relationship of the Parties.
C[i] is an independent contractor and neither it nor its employees will be considered an employee of Yours for any purpose. Nothing herein shall create an express or implied partnership, joint venture, employment or other association between the Parties. Neither Party has any right, power or authority to enter into any agreement or other commitment for, or incur any liability or obligation on behalf of, or otherwise bind the other Party.
- Non-Assignability; No Third-Party Beneficiaries.
This Agreement may not be assigned by either Party without the prior written consent of the other Party, except that either Party may assign this Agreement without such consent as part of a corporate reorganization, stock purchase, merger or sale of all or substantially all of the assets and business to which it relates. Any assignment in violation of the above shall be null and void. You may not, make any aspect of the Services available to, or use it for the benefit of, anyone other than You or Your Authorized Users.
- Force Majeure.
Neither Party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, acts of God, fire, flood, accident, electrical outages, earthquakes, telecommunications line failures, network failures, epidemics, pandemics, quarantines, war or labor disputes.
- Construction; Severability.
If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties, and all other provisions will remain in full force and effect. C[i]’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision, or of any other right or provision, unless such waiver is acknowledged and agreed to by C[i] in writing.
- Dispute Resolution.
If at any time, either during the Term of this Agreement or thereafter, You believe that C[i] has breached this Agreement, or otherwise violated or infringed any of Your rights, or that there is a valid dispute between You and C[i] (in all cases, a “Dispute”), You will give Notice to C[i] of same, in writing, together with an explanation of the Dispute and any relevant documentation. You and C[i] will then meet within twenty (20) days of such Notice either (i) in person in New York City or another mutually agreed location or (ii) via a mutually agreed teleconferencing platform, and attempt to resolve the Dispute through informal discussion. If the Parties are unable to resolve the Dispute at such meeting, then either Party may seek a judicial resolution, subject to the venue and choice of law provisions hereof.
- Entire Agreement.
Any notice required or permitted by this Agreement (“Notice”) shall be in writing and either personally delivered or sent via email (subject to actual non-automatic confirmation of receipt), or by certified or registered mail, prepaid and return receipt requested, addressed to the other Party at its email or physical address specified on the Order Form, or at such other address designated in a subsequent Notice. All Notices shall be effective upon receipt.
Governing Law; Venue.
This Agreement will be governed by the internal laws of the State of New York, and if applicable the federal law of the United States, without regard to the conflict of law rules of any jurisdiction. Any action based on or alleging a breach of this Agreement and/or the Order Form, or in any way relating to the relationship resulting herefrom and/or therefrom, as applicable, must be brought in a state or federal court in New York County, New York, and the Parties consent to the exclusive jurisdiction of such courts. In the event of any Dispute arising out of this Agreement, the Parties agree that service of process may be made by any Party upon another by delivery to the Party’s Notice address as set forth in Section 20 above.
“Authorized User(s)” means the licensed user(s) designated on the Order Form.
“Claims” means any claims, proceedings, causes of action, liabilities, damages, fines, losses, costs and expenses (including reasonable attorneys’ fees and disbursements) arising out of or relating to this Agreement.
“Confidential Information” means either Party’s information that has been labeled or indicated in writing as being confidential. Your Confidential Information includes Your Content in a manner that identifies You as the source, as well as Your sales, marketing or business plans, sales forecasts, and lists of actual and prospective customers communicated to C[i] in the course of providing services to You. C[i]’s Confidential Information includes the Log-In Info, the terms of this Agreement (including any and all pricing terms) as well as the C[i] Solution and any analytic frameworks, algorithms, analyses, network data, report templates, or derivative works (including those that may integrate Your Content) provided or manifested through use of the C[i] Solution (whether or not patentable and whether or not copyrightable, and including inventions, formulae, vendor information, customer information, apparatuses, equipment, trade secrets, processes, research, technical data, know-how, software, software documentation, database architecture, hardware design, and other technology owned, possessed or used by C[i] (other than Your Content)). Confidential Information does not include information that: (1) is or becomes generally known to the public through no fault of the receiving Party; (2) is known to the receiving Party at the time of disclosure without an obligation of confidentiality; (3) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; (4) is received without restriction on use or disclosure by the receiving Party from a third party who is rightfully empowered to disclose such information; (5) is or has been disclosed without confidentiality obligations to a third party by the disclosing Party; (6) is a business contact or other firmographic information; or (7) is disclosed with the prior consent or approval of the disclosing Party.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Services under your account.
“Term” means the Initial Term, as indicated on the Order Form, plus any Renewal Terms.
“Services” means the services, products and content made available by C[i] or its affiliates, not including services, products or content from third parties.
“Your Content” means any and all data and content that is, was or may be imported (via API or otherwise), provided and/or generated by You or any End Users for processing in connection with the Services.