Fliptop master service agreement

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Revised: August 12, 2014

This Master Service Agreement shall apply to Customer's use of the Fliptop data services and applications, identified in one or more order forms signed by the parties referencing this Master Service Agreement ("Order Forms"), and all related data, documentation and information provided by Fliptop (collectively the "Service" or "Services"). This Master Service Agreement and all Order Forms (collectively referred to as the "Agreement") represents the parties' entire understanding regarding the Services and shall control over any different or additional terms of any purchase order, acknowledgement or other non-Fliptop ordering document, and no terms included in any such purchase order, acknowledgement or other non-Fliptop ordering document shall apply to the Services.

1.

SERVICES AND SUPPORT

In consideration of (and subject to) payment of the fees set forth on the applicable Order Form (the "Fees") and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services selected in the Order Form(s). As part of the registration process, Customer will identify an administrative user name and password for Customer's Service Provider account (the "Account"). Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement, Customer and Service Provider accept and agree to be bound by the Service Provider's privacy policies listed on Service Provider's website. Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use the Services, and to use reproduce and the documentation and data provided by Service Provider to Customer (the "Results"), all for Customer's internal use only (and only in accordance with any applicable documentation).

2.

RESTRICTIONS AND RESPONSIBILITIES

In consideration of (and subject to) payment of the fees set forth on the applicable Order Form (the "Fees") and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services selected in the Order Form(s). As part of the registration process, Customer will identify an administrative user name and password for Customer's Service Provider account (the "Account"). Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement, Customer and Service Provider accept and agree to be bound by the Service Provider's privacy policies listed on Service Provider's website. Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use the Services, and to use reproduce and the documentation and data provided by Service Provider to Customer (the "Results"), all for Customer's internal use only (and only in accordance with any applicable documentation).

2.1

Customer will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); use or attempt to use the Service for competitive analysis, benchmarking, or to develop a competitive service or directly compete with Service Provider; modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for limited reproduction of the Results for internal use as licensed in this Agreement), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; use the Services or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party; publish the Results without the prior written consent of Service Provider; or remove any proprietary notices or labels. As between Service Provider and Customer, Service Provider retains all right, title and interest in and to the Services. All rights not expressly granted in the Services are reserved.

2.2

Customer shall not, nor authorize another to, use the Services: (i) to store or transfer any tortious, illegal or infringing materials, (ii) in violation of any laws, regulations, or third-party rights of any kind, including without limitation any privacy, intellectual property or confidentiality rights, (iii) to transfer any viruses, worms, trojans or other items of a similarly destructive nature, (iv) to market products or services of any kind to individual consumers (as opposed to the organizations for whom they work), or (v) in evaluating any consumer with respect to credit worthiness, a financial, insurance or employment decision, or with respect to eligibility for any government-granted license or benefit.

2.3

Customer shall use no less than industry standard security measures with respect to its access and use of the Services. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, software, networking, communications services and web-based services (collectively, “Equipment”). Customer shall be responsible for its use of any third party Equipment, and compliance with its own, and any and all applicable third party terms of service and privacy policies.

2.4

Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.

2.5

“Customer Data” shall mean all data means any data transmitted by Customer to Service Provider in connection with its use of the Service. As between Customer and Service Provider, Customer shall retain all right, title and interest in and to the Customer Data.

2.6

Upon approval by Customer, Service Provider may (i) produce and publish a case study on its website regarding the Customer’s use of the Services, and (ii) create self-promotional materials such as press releases, advertisements, brochures, etc. Customer shall provide a mutually agreeable quote with respect to Service Provider and the Services, to be used for Service Provider’s marketing and publicity purposes.

3.

CONFIDENTIALITY

3.1

As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed 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, including the terms and conditions of this Agreement, the Services (including the Results and all data provided by the Services), and all Customer Data, each party’s business and marketing plans, technology and technical information, pricing, product designs and business processes.

3.2

The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use any Confidential Information except to provide or use the Services as expressly permitted in this Agreement, or divulge any Confidential Information to any third party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party, or (b) was rightfully in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party, or (e) is required by law to be disclosed (provided that the Receiving Party gives Disclosing Party prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that portion of the information strictly required by such court, government agency or legal process). In the performance of the Service, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Service’s use and performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.

4.

PAYMENT OF FEES

4.1

Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the then current Subscription Term.

4.2

If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than ten (10) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider shall use reasonable efforts to respond to Customer within three (3) business days after receiving such inquires.

4.3

Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes, tariffs, levies or duties associated with Services other than U.S. taxes based on Service Provider’s net income.

5.

TERM AND TERMINATION

5.1

Subject to earlier termination as provided below, this Agreement is for the Trial Period (if any) plus, unless this Agreement is terminated by the Customer providing written notice to Service Provider during the applicable Trial Period, the Subscription Term specified in the applicable Order Form. Thereafter, this Agreement shall be automatically renewed for additional successive Subscription Terms of the same duration as the initial Subscription Term, unless either party provides written notice requesting termination at least forty five (45) days prior to the end of the then current term.

5.2

In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within ten (10) business days of notice. If this Agreement is terminated as a result of a material breach by Customer, Customer will pay in full all remaining Fees payable through the remainder of the then-current Subscription Term.

5.3

Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any Order Form.

5.4

The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”) shall survive termination. Provided however, upon termination each party shall cease using and promptly destroy all copies of the other party’s Confidential Information in its possession.

6.

INDEMNIFICATION

6.1

Service Provider agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, U.S. trademark or U.S. patent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance to Customer specifications, or (z) combined with other products, services, processes or materials where the alleged infringement would not have occurred without such combination. In any action based on a claim of infringement or misappropriation, Service Provider may, at its sole option and expense: (i) procure for Customer the right to continue using the Services under the terms of this Agreement; (ii) replace or modify the affected Services so that they are non-infringing and substantially equivalent in function to the infringing Services; or (iii) if options (i) and (ii) above cannot be accomplished despite Service Provider’s reasonable efforts, then Service Provider may terminate Customer’s rights and the Service Provider’s obligations hereunder with respect to the affected Services and refund to Customer a prorated portion of the pre-paid Fees paid for such Services for the remainder of the then-current Subscription Term. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.

6.2

Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2.1 to 2.4, or otherwise from Customer’s use of Services excluded from Service Provider’s aforementioned indemnity obligations in (x)-(z) of the second sentence of Section 6.1, above.

6.3

A party’s obligation to indemnify the other party is contingent upon (i) the indemnified party promptly notifying the indemnifying party in writing of the claim, provided that the indemnifying party is excused from their indemnification obligations only to the extent such party has suffered actual material prejudice by any delay; (ii) the indemnifying party having sole control of the defense and of any negotiations for its settlement; and (iii) the indemnified party providing the indemnifying party with reasonable assistance, information, and authority necessary to perform the above. The indemnified party may participate in the defense of any action at its own expense.

7.

WARRANTY AND DISCLAIMER

SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Service Provider will have no responsibility or obligations with respect to: (a) the use of the Service other than in accordance with this Agreement and its documentation, (b) any element of the Service which has been modified by anyone other than Service Provider, (c) failure of the Service through accident, abuse or misapplication, or (d) causes beyond Service Provider’s reasonable control, including without limitation any act of god, war, terrorism, government action, or the failure of any Customer or third party service or equipment on which the Service relies.

8.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID, OR ARE PAYABLE, BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF HOSTING OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.

9.

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Sections 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Sections 2 or 3 in additional to any other relief to which the owner of such Confidential Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.