BY ACCEPTING THIS MASTER SERVICES AGREEMENT (“AGREEMENT”), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO 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 TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
The entity listed in an Order (“Customer”) and Upwave, Inc. (“Company”) hereby agree as follows:
This Agreement shall apply to Customer’s use of Company’s online brand analytics software platform (“Platform”) and associated professional services (collectively “Services”) as ordered by Customer under any ordering document (including any online form presented through the Platform) (“Order”). In the event of a conflict between this Agreement and an Order, this Agreement shall control (except to the extent the Order specifically provides that its provisions shall supersede this Agreement).
- Right to Use the Platform.
2.1 Subject to the restrictions set forth herein, and subject to an Order, Company grants to Customer a limited, non-transferable, non-exclusive, revocable, worldwide right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Platform for its own internal business operations for the term of the applicable Order and subject to the terms of this Agreement. Customer shall be liable for all acts and omissions of its Users in breach of this Agreement.
2.2 Except as expressly authorized by Company in writing, Customer shall not and shall not permit its Users to, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform, including any software, documentation or data related to or provided with the Platform; (b) display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, assign, or otherwise transfer or encumber rights to the Platform; (c) use or access the Platform to build or support, and/or assist a third party in building or supporting, products or services competitive to Company; (d) remove any proprietary notices or labels from the Platform; (e) use the Platform for the operation of a service bureau or time-sharing service; or (f) otherwise use the Platform outside the scope of the license granted herein.
2.3 Customer shall not knowingly use the Platform in any manner that could damage, disable, overburden, impair or otherwise interfere with the Platform. Customer shall be responsible for maintaining the security of its account access and passwords. Customer represents and warrants that Customer will use the Platform and Services only in compliance with applicable laws, rules and regulations.
2.4 Customer is responsible for the content, information, data and other materials it submits or posts on or through the Platform or otherwise provides to Company in connection with the Services (collectively, “Customer Content”). Customer represents and warrants that it will not provide, submit or post any Customer Content which:
- it does not own or have sufficient rights to use as anticipated herein;
- infringes on third party rights, including without limitation, any intellectual property rights, including any trademark, copyright, patent or trade secret rights (“Intellectual Property Rights”), publicity or privacy rights;
- directly or indirectly requests that an end user provide any information which can be used to identify the end user, including without limitation, name, address, email address, telephone number, or payment information;
- is harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, racially or ethnically hateful or otherwise objectionable;
- poses or creates a privacy or security risk to any person;
- is fraudulent, misleading, or untruthful; or
- violates any applicable local, state, national or international law, or any regulations having the force of law.
Company reserves the right to modify, remove, suspend or delete any Customer Content or any portion thereof, and related Services, which Company determines in its sole discretion violates any of the foregoing.
2.5 Company may immediately suspend Customer’s password, account, and access to the Platform and Services if (a) Customer fails to make payment due within fifteen (15) business days after Company has provided Customer with notice of such failure; or (b) Customer breaches this Agreement. Any suspension by Company of the Platform and Services under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.
- Proprietary Rights.
3.1 In the provision of Services, the Platform may produce or Company may create, pursuant to an Order, certain reports for Customer that may contain certain brand analytics (“Reports”), as further described in an Order. Subject to full payment for the Platform and Services, the Reports, or any other deliverables that are expressly referenced as “deliverables” in an Order (collectively “Deliverables”) are owned by Customer and Company hereby assigns all, right, title and interest in and to such Deliverables. Notwithstanding the foregoing, Company owns and reserves the right to use in any way, any standard report templates, or any other Company Content (as defined below) that may be contained in such Deliverables. To the extent any Company Content is contained in the Deliverables, Company grants Customer a non-exclusive, world-wide, royalty-free, transferable, perpetual license to copy, publicly display, transmit, perform, distribute, and store the Company Content solely in connection with such Deliverables. “Company Content” shall mean all documents, data, know-how, methodologies, software, and other materials that are provided by or used by Company in connection with performing the Services which were developed or acquired by Company prior to the commencement of or independently of this Agreement or otherwise not expressly granted to Customer herein, including other data collected by Company (apart from the Customer Content) in connection with the Services.
3.2 By providing any Customer Content to Company, including through the Platform, Customer hereby grants Company a non-exclusive, worldwide, royalty-free, transferable, perpetual, license to copy, publicly display, transmit, perform, distribute, store, modify and otherwise use the Customer Content in connection with the Platform and provision of the Services. Subject to the limited license set forth herein, Customer owns and shall retain all rights in and to the Customer Content.
3.3 Except for the Customer Content and Deliverables, Company owns all right, title and interest in and to the Platform and Services and all Company Content therein, including without limitation all Intellectual Property Rights and data. All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Platform or Services (“Feedback”) shall be owned by Company, and Customer hereby assigns all rights to any Feedback to Company. Any rights not expressly granted herein are reserved by Company.
- Billing and Payment.
4.1 Customer shall pay all fees as provided for in an applicable Order (“Fees”) in accordance with the terms of the Order. Unless otherwise provided for in an Order, Fees are due 30 days after receipt of an invoice. If you dispute any charges, you must notify Company in writing within 15 days of receipt of the invoice.
4.2 Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. All Fees are non-cancelable and non-refundable, except as expressly provided herein. All Fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Company’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
- Representations & Warranties; Disclaimer of Warranties.
5.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.
5.2 Company warrants to Customer that it will (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify Company of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies, which are outlined in section 5.3 below. Company shall not be responsible for any delays due to Customer (or Customer’s advertisers, as applicable).
5.3 For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services. If Company cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the Fees paid to Company for such deficient Services, and such refund shall be Company’s entire liability.
5.4 The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing, including via email, of any scheduled unavailability of the Platform.
5.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, COMPANY AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE PLATFORM AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. COMPANY AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM OR SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE PLATFORM OR SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE PLATFORM OR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, PLATFORM OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER COMPANY NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE PLATFORM OR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY COMPANY, THE PLATFORM AND SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.
6.1 Customer shall defend, indemnify, and hold Company harmless from and against any liabilities, losses, damages, claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from Customer’s breach of this Agreement, negligent acts or willful misconduct. Company shall provide notice to Customer of any such claim, suit or demand. Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, at Customer’s sole cost. In such case, Customer agrees to cooperate with any reasonable requests assisting Company’s defense of such matter.
6.2 Company shall defend, indemnify, and hold Customer harmless from and against any liabilities, losses, damages, claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from a claim that the Company Platform infringes on a third party’s Intellectual Property Rights. Customer shall provide notice to Company of any such claim, suit or demand. Customer reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, at Company’s sole cost. In such case, Company agrees to cooperate with any reasonable requests assisting Customer’s defense of such matter.
- Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 2.2 OR ANY INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT EXCEED THE FEES PAID (OR, IN THE CASE OF CUSTOMER’S LIABILITY, PAID AND/OR PAYABLE) BY CUSTOMER IN THE PRECEDING 12 MONTHS OR $25,000, WHICHEVER IS LESS.
- Confidential Information.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose non-public information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information except as necessary to exercise the Receiving Party’s rights or perform its obligations under this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (i) is or becomes generally available to the public; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. In the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information of the Disclosing Party, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall, to the fullest extent permitted by law, first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection, at the Disclosing Party’s expense. The confidentiality obligations herein shall survive for 2 years following the disclosure of such Confidential Information to the Receiving Party.
- Term and Termination.
This Agreement shall govern over any Order that references this Agreement, for the term noted in such Order. Either party may terminate an Order in the event of a material breach of this Agreement by the other party, which is not cured in the 30-day period after written notice of such alleged breach, provided that this Agreement shall continue to govern over any Orders not affected by the breach, for the full term noted in such Order. Customer shall be responsible for all Fees incurred up to the date of termination of a particular Order, as specified herein.
Company may give notice applicable to Company’s general Customer base by means of a general notice on the Platform portal, e.g. maintenance notices, and other notices specific to Customer by electronic mail to Customer’s email address on record in Company’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Company’s account information. If Customer has a dispute with Company, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Company at 642 Harrison Street, Suite 300, San Francisco, CA 94107, or such other updated address as may be communicated by Company to Customer, with a required copy to legal@Upwave.com.
- General provisions.
11.1 Customer agrees that Company may list Customer’s name (including by displaying any Customer trademark) for the purpose of identifying the business relationship between the parties on Company’s website and in other marketing and advertising collateral, together with a list of other Customers.
11.2 Any action, claim, or dispute related to this Agreement will be governed by California law, excluding its conflicts of law provisions. The parties submit to the exclusive jurisdiction of the state and federal courts located in the County of San Francisco, California. The Uniform Computer Information Transactions Act will not apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
11.3 This Agreement, including any Orders, represent the parties’ entire understanding regarding the Platform and Services and supersedes any prior or contemporaneous, conflicting or additional communications. Further, Company shall not be bound by the terms of any subsequent purchase order or other Customer ordering document or click-through agreement, unless such terms are signed by the parties and expressly reference and supersede this Agreement. This Agreement may be amended only by written agreement signed by the parties. If any provision(s) (or sub-part thereof) of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) (or subpart thereof) shall be deleted, with all other provisions remaining in full force and effect. A waiver shall only be effective if signed in writing by the waiving party.
11.4 No joint venture, partnership, employment, or agency relationship exists between Company and Customer as a result of this Agreement or use of the Platform or Services. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, except that either party may assign this Agreement as a whole to a successor in connection with a merger, acquisition or transfer of all or substantially all of the assets or business to which the Agreement relates. Any purported assignment in violation of this section shall be void.
Last Updated: March 23, 2021