Fliptop master service agreement
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Revised: May 20, 2013
This Master Service Agreement shall apply to Customer's use of Fliptop's subscription services, packaged professional services, all linked pages, content, products, on-line services, applications and offline components, and all data and information provided by Fliptop therein (collectively "Service" or "Services") identified in one or more Order Forms (defined below). This Master Service Agreement and all Order Forms (collectively referred to as the "Agreement") represent the parties' entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Fliptop ordering document, and no terms included in any such purchase order or other non-Fliptop ordering document shall apply to the Services. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order Form. This Agreement is entered into effective as of the Order Date (the "Effective Date") by and between Fliptop Inc. ("Fliptop") a Delaware corporation and the Customer set forth in the applicable Order.
YOU UNDERSTAND THAT BY USING THE SITE , THE SERVICES OR YOUR FLIPTOP ACCOUNT, OR BY CLICKING "CREATE ACCOUNT" OR "SIGN UP" TO INDICATE YOUR AGREEMENT TO THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR THE SERVICES. IF YOU AGREE TO THESE TERMS OF SERVICE ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND THAT YOUR AGREEMENT TO THIS AGREEMENT WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, CUSTOMER, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT BUSINESS.
Fliptop Account Eligibility and Registration
In order to use some of the Services directly via the Site, you must create a Fliptop account. You must be at least 13 years of age to create a Fliptop account. The Site, Services and access to a Fliptop account are not available to temporarily or indefinitely suspended Fliptop account holders.
When you register with Fliptop and set up your Fliptop account, you agree to provide Fliptop with accurate and complete information. You agree to promptly update your Fliptop account information with any new information that may affect the operation of your Fliptop account. You authorize Fliptop, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your Fliptop account information.
You are responsible for safeguarding and maintaining the confidentiality of your username, password and corresponding Fliptop account information. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Fliptop account, including any charges incurred, whether or not you have authorized such activities or actions. You agree to immediately notify Fliptop of any unauthorized use of your username, password or Fliptop account.
"Call" means a connection made to the Fliptop API, or through any of Fliptop's applications, or an entry in a CSV file provided by Customer to Fliptop (or other submission process or file provided by Customer, e.g. imported from e-mail marketing platforms), all as set forth in the Service Documentation.
"Dataset" means the collation of data (including Matches) created by Customer's use of the Service, downloaded to Customer's systems, or otherwise provided by Fliptop to Customer, after creation.
"Service Documentation" means the service documentation and instructions made available to Customer by Fliptop which sets out a description of the Service and the user instructions for the Service, as may be updated by Fliptop from time to time.
"Match" means the successful return of one or more Twitter, Facebook or LinkedIn profile URLs, or other billable data, for a given email address or social id.
"Order Form" means an order form (i) executed between the parties from time to time, which identifies the products and services to be provide pursuant to this MSA, together with the applicable fees, payment terms and other terms and/or relevant information, or (ii) that is submitted and agreed to by Customer and acknowledged by Fliptop via Fliptop's online ordering process; and
"Service" means the services provided by Fliptop to Customer under the Order Form and this MSA as more particularly described herein and in the Service Documentation.
LICENSE TO USE PURCHASED SERVICE. Subject to Customer purchasing access to and using the Service in accordance with the terms of this Agreement, Fliptop hereby grants to Customer a non-exclusive, non-transferable right to use the Service and the Service Documentation during the term specified in the applicable Order Form. The Customer acknowledges that the Service, and all intellectual property rights contained therein, belongs and shall continue to belong to Fliptop or its licensors, and that Customer shall have no rights in or to the Service other than the right to use the Service in accordance with the terms of this Agreement. All rights not expressly granted by Fliptop are reserved. If any Services are purchased on a subscription basis, then upon the termination of the applicable term, Customer shall cease all access to, and use of, the Services (whether by Customer or a third party) and destroy all Services and Matches previously provided by Fliptop to Customer under such subscription.
USE OF THE SERVICE
Fliptop's Responsibilities. During the applicable Service term, Fliptop shall: (a) provide Fliptop's basic customer support services during Fliptop's normal business hours, and/or upgraded support if purchased separately as set forth in an Order Form; and (b) use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week except for any maintenance carried out during Fliptop's normal maintenance window, or performed outside the normal maintenance window. Fliptop shall have no obligations under this Section with respect to any Services provided to Customers on a trial or promotional basis at no cost.
Resale of Matches. Customer may resell Matches to end users (its "End Users"), provided that Customer may only resell any particular Match once. If Customer wishes to resell a Match more than once, it must conduct a new Call. If Customer resells Matches, Customer warrants that the End User is the data controller of any unique identifier used in any Calls made for that End User. Any resale shall be subject to an Agreement consistent with this Agreement and at least as protective of Fliptop and its rights, as the terms and conditions of this Agreement, and any use by such End User shall be limited to any applicable Service term. Customer may not resell Matches to any entities that will further distribute the Matches, or to a competitor of Fliptop.
Compliance with Fair Credit Reporting Act. Fliptop is not a consumer-reporting agency ("Consumer Reporting Agency") as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA") and the Services and Datasets do not constitute "Consumer Reports" as that term is defined in the FCRA. You agree to not use or provide the Services or any Dataset for any purposes enumerated in the FCRA in lieu of obtaining a Consumer Report. Specifically, you agree not to use or provide the Datasets, or authorize anyone else to use or provide the Datasets, for the following purposes:
in connection with establishing a consumer's eligibility for credit or insurance to be used primarily for personal, family or household purposes, or in connection with assessing risks associated with existing credit obligations of a consumer;
for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee;
for any tenancy verification or in connection with any application to rent real property;
in connection with a determination of a consumer's eligibility for a license or other benefit that depends on an applicant's financial responsibility or status;
as a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation;
in connection with any information, service or product sold or delivered to a "Consumer" (as that term is defined in the FCRA) that constitutes or is derived in substantial part from a Consumer Report;
for any other purpose covered under the FCRA; or
for the preparation of a Consumer Report or in such a manner that may cause such data to be characterized as a Consumer Report. You agree not take any "Adverse Action" (as that term is defined in the FCRA), which is based in whole or in part on Services or Dataset against any Consumer.
Fee Calculation. Unless otherwise specified in the applicable Order Form, Customer shall pay a fee in the amount specified on the applicable Order Form for each of the Matches it receives. Customer agrees that Fliptop's calculation of the Matches is final.
Payment Terms. The Customer shall pay the applicable fee to Fliptop on the Payment Terms specified on the applicable Order Form. All prices and fees are stated in, and all payments shall be made in, U.S. dollars unless otherwise specified in the applicable Order Form. All sums payable under this Agreement are exclusive of duties, VAT and other sales taxes (if applicable), for which Customer shall be responsible.
Overdue Charges. If any charges are not received from Customer by the due date, then Fliptop may charge Customer interest on the overdue amount at the rate of 1.5% 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..
Suspension of Service and Acceleration. If the amount owed by Customer under any Order Form becomes thirty (30) or more days overdue, Fliptop may, without limiting its other rights and remedies, accelerate Customer's unpaid fee obligations for the then-current term so that all such obligations become immediately due and payable, and suspend access to the Service until such amounts are paid in full. If the amount owed by Customer under any Order Form becomes thirty (30) or more days overdue, then Customer shall cease using and delete all Datasets previously provided by Fliptop.
DATASET AND CONTENT OWNERSHIP
SDataset Ownership and Deletion. Fliptop does not own any data, information or material (including the Dataset) that Customer creates in the course of using the Service. Fliptop shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Dataset. It is solely Customer's responsibility to back up any Dataset that it receives (subject to any license term limitations as set forth in the Order Form). Fliptop reserves the right to withhold, remove, discard and/or otherwise dispose of any Dataset without notice for any breach, including, without limitation, Customer's non-payment of fees. Upon termination for cause, your right to access or use the Service immediately ceases, and Fliptop shall have no obligation to maintain or forward any Dataset. Customer acknowledges and agrees if, as a result of Customer's use of the Service, you receive or have access to any Matches or Dataset, then Customer shall have the sole responsibility to ensure that it, and any End Users, obtain and possess all licenses, authorizations and/or subscriptions required by the owner of any unique identifier in connection with the data supplied by Customer or the use of the Dataset by Customer or any End User..
Definition of Confidential Information. As used herein, "Confidential Information" means all confidential 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. Confidential Information of each party shall include, without limitation, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall 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; Customer Data. 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 in no event less than reasonable care) (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, contractors and agents who need such access for purposes consistent with this Agreement and who have entered into confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party without the other party's prior written consent other than to: (i) its Affiliates and their legal counsel and accountants; and (ii) to potential investors, lenders, purchasers of either party's business, or underwriters in connection with their due diligence in future financings, acquisitions mergers or public offerings of either party. Any customer data that is sent by Customer to Fliptop in connection with its use of the Service will be treated as Confidential Information and Fliptop will not redistribute, resell or retransmit such data to any third party, except as expressly allowed under this Agreement (without limiting the foregoing restriction on redistribution, resale or retransmission, such customer data may be retained and used by Fliptop for indexing and analysis purposes).
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
WARRANTIES AND DISCLAIMERS
Fliptop Warranties. This section does not apply to Customers who are provided the Service on a trial or promotional basis at no charge. In such case, the Service is provided "AS IS" and all disclaimers set forth in Section 7.3 shall apply.Fliptop warrants that the Service will perform substantially in accordance with this Agreement and the Service Documentation, provided that (a) Fliptop shall not be responsible to the extent such non-conformance is caused by use of the Service contrary to Fliptop's instructions, or modification or alteration of the Service by any party other than Fliptop or Fliptop's duly authorised contractors or agents; and (b) Fliptop shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Fliptop by Customer in connection with the Service, or any actions taken by Fliptop at Customer's direction. If the Service does not conform with the foregoing, Fliptop will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction or substitution constitutes Customer's sole and exclusive remedy for any breach of the warranties contained in this section 7.1. Notwithstanding the foregoing, Fliptop does not warrant that Customer's use of the Service will be uninterrupted or error-free; nor that the Service, Service Documentation and/or the information obtained by Customer through the Service will meet Customer's requirements. Customer understands and acknowledges that the data contained in the Datasets may be inaccurate and that the Datasets may not be up to date.
Customer Warranties Customer represents and warrants that it will: (a) comply with all applicable laws and regulations with respect to its activities related to this Agreement; (b) obtain and maintain all necessary licences, consents, and permissions necessary for Fliptop, its contractors, suppliers and agents, to make use of the data that Customer supplies; (c) ensure that Customer's End Users use the Service, the Service Documentation, and all Datasets in accordance with the terms and conditions of this Agreement and shall be responsible for any Customer's End Users' violation of the terms and conditions of this Agreement (as if such violation had been committed by Customer itself); and (d) assume sole responsibility for its and its End Users' use of Datasets obtained from the use of the Service, and for conclusions drawn from such use.
Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR CUSTOMER'S BENEFIT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS," AND FLIPTOP MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY FLIPTOP. FLIPTOP DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.
Internet Delays. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS THAT ARE OUTSIDE FLIPTOP'S CONTROL. FLIPTOP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
Non-GA Services. From time to time Fliptop may invite Customer to try, at no charge, products or services that are not generally available to Fliptop customers ("Non-GA Services"). Customer may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. Fliptop may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
INDEMNITY. FLIPTOP SHALL HAVE NO OBLIGATION UNDER THIS SECTION ARISING OUT OF RELATIONG ANY SERVICES PROVIDED TO CUSTOMERS ON A TRIAL OR PROMOTIONAL BASIS AT NO CHARGE. Each party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other party (the "Indemnified Party") against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or relating to the Indemnifying Party's breach of this Agreement, provided that: (a) the Indemnifying Party is given prompt notice of any such claim by the Indemnified Party (and provided that any delay in providing such prompt notice shall only relieve the Indemnifying Party of its obligations under this Section to the extent the Indemnifying Party is prejudiced by such delay); (b) the Indemnified Party provides reasonable co-operation to the Indemnifying Party in the defence and settlement of such claim, at the Indemnifying Party's expense; and (c) the Indemnifying Party is given sole authority to defend or settle the claim. Provided however that the Indemnifying Party may not settle any claim in a manner that adversely affects the rights of the Indemnified Party without the Indemnified Party's consent (which consent will not be unreasonably withheld).
LIMITATION OF LIABILITY
Types of Damages. To the extent legally permitted under applicable law, In no event shall either party, or its suppliers, be liable to the other party for any special, indirect, incidental or consequential damages, including damages or costs due to loss of profits, data, use or goodwill, personal or property damage resulting from or in connection with this Agreement or products or services provided hereunder, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if such party has been notified of the likelihood of such damages. In no event shall Fliptop be liable for procurement costs of substitute products or services.
Amount of Damages. Fliptop's maximum liability arising out of or in any way connected to this agreement shall not exceed the fees paid by customer to Fliptop pursuant to the order form that is the subject of the claim during the Twelve (12) months immediately preceding the claim. The existence of one or more claims under this Agreement will not increase fliptop's liability. In no event shall Fliptop's suppliers have any liability arising out of or in any way connected to this Agreement.
Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply.
TERM AND TERMINATION
Term of the Agreement. This Agreement shall commence on the Effective Date and shall continue until the expiration or termination of the last to expire or terminate Order Form, unless otherwise terminated as provided in this Agreement.
Term of Order Form and Renewals. The initial term of each Order Form shall begin on the date specified on the applicable Order Form and continue for the period specified therein ("Initial Term").
Termination. Either party may terminate this Agreement at any time on written notice to the other if the other: (a) is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or (b) is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction. Fliptop may terminate this Agreement, or any portion of the Services (as well as restrict the use thereof), (i) at any time upon providing 30 days notice to Customer, or (ii) immediately upon providing Customer with notice if Fliptop loses access to any technology or data underlying the Services.
Effect of Termination. On termination for any reason: (a) all rights granted to Customer under this Agreement shall cease; (b) Customer shall delete all their copies of Datasets; (c) Customer shall cease all use of the Services and all activities authorized by this Agreement; (d) Customer shall immediately pay to Fliptop any Fees due to Fliptop under this Agreement. Sections 3.2, 3.3, 4, 6, 7, 8, 9, 10 11, and 12 shall survive any termination or expiration of this Agreement.
NOTICES, GOVERNING LAW AND JURISDICTION
Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). All notices shall be sent to the addresses set forth on the applicable Order Form, which may be updated from time to time upon written notice to the other party.
Agreement to Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California, without regard to conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in San Francisco County, California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. Neither the United Nations Convention on Contracts for International Sale of Goods or the Uniform Computer Information Transactions Act will apply to the interpretation or enforcement of this Agreement.
Export Compliance. The Service, other technology Fliptop may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access to or use the Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
Force Majeure. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in clause shall excuse Customer from any payment obligations under this Agreement.
Waiver. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
Severability. If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
Amendments. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Fliptop may assign this Agreement in its entirety (including all Order Forms), without consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Relationship of the Parties. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). This Agreement is entered into solely for the benefit of the parties hereto. There are no third party beneficiaries to this Agreement.
Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties 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 in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer's purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.