MASTER SERVICES AGREEMENT
This Rollio Master Services Agreement (this “Agreement”) is between Rollio, Inc. (“Rollio”, “we,” “us,” or “our”) and “You” or “Customer.” This Agreement sets forth the terms and conditions that govern Service Orders placed and professional services rendered under this Agreement.
1. USE OF THE SERVICES
1.1. We will make the Rollio services listed in a fully-executed Order Form (the “Services”) available to You pursuant to this Agreement. Rollio will provide you with the Service Order electronically. Except as otherwise stated in this Agreement or in a Service Order, Rollio grants to You the non-exclusive, non-sublicensable, non-transferable, revocable, limited right and license to use the Services in the United States during the “Services Period” defined in a Service Order, unless earlier terminated in accordance with this Agreement or a Service Order, solely for Your internal business operations. You may allow Customer Users to use the Services for this same purpose, and You are responsible for their compliance with this Agreement and the Service Order.
1.2. The Service Specifications describe and govern the Services. During the Services Period, we may update the Services and Service Specifications to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Materials. Rollio updates to the Services or Service Specifications will not materially reduce the level of performance, functionality, security or availability of the Services during the Services Period.
2. FEES AND PAYMENT
2.1. You agree to pay all fees specified in the Service Orders. Except as otherwise specified herein or in a Service Order, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Services Period.
2.2. Invoices will be issued as set forth in the Service Order. Unless otherwise stated in the Service Order, fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
3. PROPRIETARY RIGHTS AND LICENSES
3.1. Subject to the limited rights expressly granted hereunder, Rollio and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
3.2. You grant Rollio, our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any non-Rollio applications and program code created by or for You using a Service, as reasonably necessary for us to provide the Services in accordance with this Agreement.
4. CONFIDENTIALITY
4.1. “Confidential Information” means all 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. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Service Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
4.2. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not 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, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
5. INDEMNIFICATION
5.1. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You.
5.2. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us.
6. LIMITATION OF LIABILITY
6.1. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
6.2. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. TERM AND TERMINATION
7.1. This Agreement commences on the date You first accept it and continues until all Service Orders granted in accordance with this Agreement have expired or been terminated.
7.2. Term and Renewal. Services shall be provided for the Services Period defined in the Service Order. Unless otherwise stated in the applicable Service Order, the Services Period will automatically renew for successive periods of the same duration (each a “Renewal Term”), unless either party provides the other with written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current Services Period. Pricing for any Renewal Term shall be at Rollio’s then-current standard rates, unless otherwise agreed in writing.
7.3. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8. GENERAL PROVISIONS
8.1. Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
8.2. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Service Orders, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
11. THIRD PARTY MATERIALS & PUBLICITY
11.1. Rollio does not control and is not responsible for Third Party Services.
11.2. Third Party Materials are provided “AS IS” and “AS AVAILABLE” without any warranty of any kind.
11.3. If a Third Party Provider ceases to provide the Third Party Materials or ceases to make the Third Party Materials available to us on reasonable terms, we may cease providing access to the affected Third Party Materials without any liability to You.
11.4. Publicity. Customer grants Rollio the right to use Customer’s name and logo on Rollio’s website and in marketing materials to identify Customer as a user of the Services. Any other use of Customer’s trademarks (e.g., in press releases or detailed case studies) shall require Customer’s prior written consent.