Master service agreement


AGREEMENT FOR SERVICES The following is an Agreement for Services (“Agreement”), dated as of the calendar day you click “Accept” at the end of the Agreement (the “Effective Date”) made by and between you (as more fully defined at the end of the Agreement, “Client”) and Roistat, Inc., a Delaware corporation (“Company”). 1. Company and its affiliates maintain a website through which Company's clients may access the Roistat™ software-as-a-service platform (the “Service”) for the purpose of, among other things, obtaining marketing analytics data and reports based on Client’s website, CRM system, and third-party advertising channels on which Client’s marketing content and/or name or reference thereto appears (“Channels”), call tracking services. Company agrees to grant Client access to the Service pursuant to the terms and conditions set forth below, and Client agrees to use the Service in strict conformity with such terms and conditions. 2. Login ID: Company will provide Client with information and instructions for using and uploading data to the Service, including, without limitation, one or more user ID’s, initial passwords, and/or other devices (collectively, “Login IDs”). Client may access the Service only by using such Login IDs. No individual user Login ID may be shared or used by anyone except the one individual to whom such Login ID is assigned. Client authorizes Company to act on any instructions Company receives from users and agents who present valid Login IDs and such individuals shall be deemed authorized to act on behalf of Client, including, without limitation, to change such Login IDs. It is Client’s sole responsibility to keep all Login IDs and other means of access within Client’s direct or indirect possession or control both confidential and secure from unauthorized use. 3. Account: Along with assignment of Login ID, Client creates a Client account ("Account"). Account may also include billing information Client provides Company with for purchase of the Service. Client may not sell or charge others for the right to use Account, or otherwise transfer Account. 4. Integration: , Client shall (a) identify to Company in writing or other form acceptable to Company those Channels which Client desires to monitor and analyze using the Service. Client acknowledges that as between the parties, Client is solely responsible for determining the worthiness and suitability of any Channel, for the means and methods by which data are collected and processed within each Channel, and for the terms, enforceability, and performance of any transaction or agreement between Client and any third party relating to the use and operation of a Channel. Client represents and warrants that it is authorized to make the Channels and data collected and processed therein available to Company under the terms of this Agreement, and to use the Service to monitor, track and record use of the Channels and their respective systems. Company provides marketing analytics services only and does not advise, recommend, or render an opinion with respect to any information communicated through the Service and shall not be responsible for Client's or any third party's use of any information obtained through the Service. Client further acknowledges and agrees that Company may utilize the resources of any Company affiliate in its performance of its obligations hereunder. 5. Client shall obtain and maintain, at its own expense, computers, computer systems (including but not limited to servers and peripheral equipment), operating systems, applications, communications software, Internet browser, telecommunications equipment, third-party application services and other equipment and software (“Equipment”) required for Client to access and use the Service (the Service being accessible to users through a standard internet browser). Company shall not be responsible for any problem, error or malfunction relating to the Service resulting from Client error, data entry errors by Client or any Channel, or the performance or failure of Equipment or any telecommunications service, internet connection, internet service provider, or any other third-party communications provider, or any other failure or problem not attributable to Company. 6. General Rule: Client shall never: send spam, obtain and use third party lists of emails and/or phone numbers, record phone calls without a consumer consent, promote or incite harm toward others, promote discriminatory, hateful, or harassing content. 7. Right to suspend or terminate: Company may suspend or terminate Client’s account with no refund, if Client sends, promotes or distributes any harmful, discriminative, hateful, or harassing content. Company determine content as being harmful, discriminative, hateful, or harassing at its sole discretion. Company may also suspend or terminate Client’s account with no refund, if Company determines at its own discretion, that Client is an organization or an individual that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor harm toward others, discrimination, inmiditation, abuse, or harassment. 8. Free Trial and Term: If applicable, Services will be provided initially for a free trial period of fourteen (14) days after registering or such other period as specified in Client's pricing plan (the “Trial Period”). Company may shorten or extend the Trial Period at any time in its discretion. After expiration of the Trial Period, Company charges a fee to continue using the Services. This Agreement may be terminated in Client's discretion at any time during the Trial Period by written notice to Company. If this Agreement is not terminated at or before completion of the Trial Period, then the Agreement will continue for an initial term of twelve months following the end of the Trial Period (the “Initial Term”). Unless otherwise agreed in writing by the parties, after the Initial Term, this Agreement will automatically renew for successive terms of 12 months each (a “Renewal Term”), subject to the right of either party to cancel renewal at any time upon at least 30 days' written notice. Either party also may terminate this Agreement immediately upon written notice if the other party: (i) becomes insolvent; (ii) becomes the subject of a petition in bankruptcy which is not withdrawn or dismissed within 60 days thereafter; (iii) makes an assignment for the benefit of creditors; or (iv) materially breaches its obligations under this Agreement and fails to cure such breach within 30 days after the non-breaching party provides written notice thereof. 9. Upon termination, Client shall cease use of the Service and all Login IDs then in Client’s possession or control and Company shall cease to use and shall immediately delete all Account Data, as that term is hereinafter defined, subject to Section 9(b). This Section 6 and Sections 8 through 11 and 15 through 25 hereof shall survive any termination or expiration of this Agreement. Payment and Fees: Client may choose from the service plans described here in the pricing section of this site or as otherwise offered in writing by Company. Client agrees to pay the fees Client chooses for use of those Service features available as of the Effective Date. Should Client request any customized configurations/coding or services specific to Client only, the parties will negotiate and execute a separate Statement of Work (SOW) specifying the Services to be provided. All such Services and SOWs shall be governed by the terms and conditions of this Agreement. Company may charge separately for new Service features offered from time to time after the Effective Date, subject to Client’s acceptance of the terms of use and fees associated with such features. Client shall be responsible for the payment of all taxes associated with provision and use of the Service (other than taxes on Company’s income). Subject to the foregoing, pricing is valid through the Initial Term and may be adjusted prospectively thereafter by Company no more than once per year upon at least 30 days' prior written notice. Fees are payable in full on a monthly basis; no fees are refundable for partial months. Payment authorization: By providing payment information to Company or to one of its payment processors, Client represents to Company that Client is the authorized user of the card, PIN, key or account associated with that payment, and Client authorizes Company to charge Client’s credit card or to process payment with the chosen third-party payment processor for the service plan or or SOW incurred by you. Company may require Client to provide with address or other information in order to meet its obligations under applicable tax law. For the monthly based fees, where recurring payments are made in exchange for continued use of the Service, by continuing to use the Service Client agrees and reaffirms that Company is authorized to charge Client credit card (or Account, if funded), or to process Client’s payment with any other applicable third-party payment processor, for any applicable recurring payment amounts. Client agrees to notify Company promptly of any changes to credit card account number, its expiration date and/or billing address, and Client agrees to notify Company promptly if credit card account expires or is cancelled for any reason. 10. Account balance: Company may make available an account balance associated with your Account (Account balance). Account is neither a bank account nor any kind of payment instrument. It functions as a prepaid balance to purchase Services. You may place funds to your Account up to a maximum amount determined by Company, by bank transfer, credit card, or any other payment method accepted by Company. You may use Account balance to pay monthly fees and purchase the Service. Account funds do not constitute a personal property right, have no value outside Account and can only be used to pay monthly fees and purchase the Service (including SOW). Account funds have no cash value and are not exchangeable for cash. Account funds that are deemed unclaimed property may be turned over to the applicable authority. 11. No payment or compensation arrangement between Client and any Channel shall affect Company's right to payment or Client's obligations to Company. As between the parties, Client is solely responsible for the performance and enforcement of any compensation arrangement between Client and any Channel. If Client fails to pay any fee or other amounts due under this Agreement, whether by cancelling its credit card, initiating an improper charge back, or any other means, Client’s Roistat account may be suspended. Without limiting other available remedies, Client will be liable to reimburse Company for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. 12. Refunds: Company may offer a Client a refund for a prepaid but unused month by Client’s request. Company may, at its sole discretion, offer a refund, discount or credit. 13. Company and its affiliates own and shall retain all right, title, and interest in and to the Service, all components thereof, including without limitation all related applications, APIs, user interface designs, software and source code, images, text, graphics, logos, trademarks, trade secrets, trade dress, copyrights, and any and all future enhancements or modifications thereto howsoever made and all intellectual property rights therein. Except as expressly provided in this Agreement or as otherwise authorized in advance in writing by Company, Client, its representatives, employees, agents and assigns shall not copy, distribute, license, reproduce, decompile, disassemble, reverse engineer, publish, modify, or create derivative works from, the Service; provided, however, that nothing herein shall restrict Client’s use of Account Data (as defined in Section 9(b) below). Client is and shall be, the sole and exclusive owner of all right, title and interest in and to the Deliverables. As used herein, "Deliverables" means any physical reports, printouts and exports of data generated or created by Client or its affiliates using the Roistat™ platform in accordance with this Agreement. Notwithstanding the foregoing, Client shall not own any third-party licensed materials which may be incorporated within the Deliverables. 14. (a) “Confidential Information” means any and all information disclosed by either party to the other which is marked “confidential” or “proprietary,” Without limiting the foregoing, all information relating to the Service and associated software and the terms of this Agreement shall be deemed Company's Confidential Information.Without limiting the foregoing, all information relating to the Service and associated software and the terms of this Agreement shall be deemed Company's Confidential Information. Notwithstanding the foregoing, “Confidential Information” does not include any information that the receiving party can demonstrate (i) was known to it prior to its disclosure hereunder; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure without restriction; (iv) is independently developed by the receiving party, without the use of any Confidential Information of the other party; (v) has been approved for release by the disclosing party's prior written authorization; or (vi) is required to be disclosed by court order or applicable law, provided that the party required to disclose the information provides prompt advance notice thereof to enable the other party to seek a protective order or otherwise prevent such disclosure. Notwithstanding the exception to confidentiality contained in Section 9 (a)(vi), above, that exception is only as to the limited disclosure envisioned in that subsection whereafter the confidentiality requirement herein shall again apply to such information. (b) All data and information uploaded to or transmitted through the Service by Client relating to Client’s marketing and advertising plans, spends, budget, and transactions with Channels (collectively, “Account Data”) shall be considered the Confidential Information of Client. At all times throughout the term of the Agreement, Client shall have access to its Account Data and upon termination may retrieve all current Account Data in the form furnished to Company. Client grants to Company a limited, non-exclusive, worldwide, royalty-free right and license to process and use the Account Data solely in connection with the performance of the Service. Notwithstanding the foregoing, nothing in this Agreement shall restrict Company from maintaining, using and providing anonymous analytics, statistics and benchmarking data based on Account Data, provided that (i) Account Data shall not be used by Company (or permitted by Company to be used by a third party) in competition with Client and (ii) no Client is identified, and no other specific company or policy information is revealed from such data. 15. Each party hereby agrees that it shall not use any Confidential Information belonging to the other party other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party's Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances with less than reasonable care. Neither party shall disclose the other party's Confidential Information to any person or entity other than its employees, agents or consultants who need access thereto in order to effect the intent of this Agreement and in each case who have been advised of the confidentiality provisions of this Agreement, have been instructed to abide by such confidentiality provisions, entered into written confidentiality agreements consistent with Sections9 through 11 or otherwise are bound under substantially similar confidentiality restrictions. 16. Each party acknowledges and agrees that it has been advised that the use or disclosure of the other's Confidential Information inconsistent with this Agreement may cause special, unique, unusual, extraordinary, and irreparable harm to the other party, the extent of which may be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which the nonbreaching party may be legally entitled, the nonbreaching party shall have the right to seek to obtain immediate injunctive relief, without the necessity of posting a bond, in the event of a breach of Section 9 or 10 by the other party, any of its employees, agents or consultants. 17. COMPANY REPRESENTS AND WARRANTS THAT IT SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICE BASED ON CLIENT'S SUBMISSION OF DATA WITHOUT INTRODUCING ERRORS OR OTHERWISE CORRUPTING SUCH DATA AS SUBMITTED BY CLIENT. OTHER THAN THE FOREGOING, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR AVAILABLE AT ALL TIMES, NOR DOES COMPANY WARRANT THAT THE SERVICE WILL REMAIN COMPATIBLE WITH, OR OPERATE WITHOUT INTERRUPTION ON, ANY EQUIPMENT PROVIDED BY CLIENT. 18. EXCEPT AS SET FORTH ABOVE IN SECTION 12, NEITHER COMPANY NOR ANY OF ITS AFFILIATES MAKE ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE ACCURACY, ADEQUACY, OR COMPLETENESS REGARDING OR RELATING TO THE SERVICES PROVIDED HEREIN. COMPANY SPECIFICALLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING WITHOUT LIMITATION THE SERVICE, NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH SERVICES. Without limiting the generality of the foregoing, Company makes no representation or warranty with respect to systems, products, services or information owned, operated or provided by third parties (including any Channel) which Client may link to, access or learn about through the Company Service. 19. Client represents and warrants that Client is authorized to use the Service, and will only use the Service, as permitted under this Agreement and in accordance with the laws and regulations applicable to Client and Client’s business with Channels. Further, Client acknowledges and agrees that Account Data shared with Company will be hosted in servers outside of the United States, including Europe, in Company’s sole discretion. By using the Services, Client consents to the transfer of such Account Data outside of the United States, and acknowledges that it provided any required notice to, and obtained any required consent from, all data subjects for such transfer, where applicable. 20. Compliance with Legislation: Client shall agree and warrant that use of Service will comply with all applicable laws and regulations. Client is responsible for determining whether the Service is suitable for Client to use in light of Client’s obligations under any regulations like HIPAA, GLB, US data privacy policy (including CAN-SPAM Act), EU data privacy laws (including the General Data Protection Regulation), United States export control laws and regulations and economic sanctions laws and regulations, or other applicable laws. If Client is subject to regulations (like HIPAA) and Client uses the Service, then Company won’t be liable if the Service doesn’t meet those requirements. Client shall never use the Service for any unlawful or discriminatory activities. Client shall agree and warrant that Client complies with applicable data protection laws, including but not limited: Client shall apply and implement privacy policy, which complies with applicable data protection laws; Client shall clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that the requirements of applicable data protection laws and describes use of the Service by Client; Client shall get and maintain all necessary permissions and valid consents required to lawfully transfer data to Company and to enable such data to be lawfully collected, processed, and shared by Company for the purposes of providing the Service or as otherwise directed by Client; Client shall provide and obtain all notices and all necessary consents required by applicable data protection laws to enable Company to deploy cookies and similar tracking technologies lawfully on and collect data from the devices of contacts and end users. If Client uses Call tracking services by Company, Client shall agree and warrant that Client complies with applicable telephone call records laws. Client shall clearly notify and get end users’ consent to record calls. 21. Failure to comply with data privacy legislation: Any violation, breach of applicable data privacy law, or misconduct commited by Client shall always be at Client’s sole responsibility. Company won’t be liable for any of those violation commited by Client unless Company was directly and voluntary involved in such violation. Company may suspend or terminate Client’s account with no refund, once received any information or complaint that Client fails to comply with applicable data privacy law. 22. Failure to comply with applicable telephone call records laws: Any violation, breach of applicable telephone call records law, or misconduct commited by Client shall always be at Client’s sole responsibility. Company won’t be liable for any of those violation commited by Client unless Company was directly and voluntary involved in such violation. Company may suspend or terminate Client’s account with no refund, once received any information or complaint that Client fails to comply with applicable telephone call records law. 23. Indemnification by Company: Company will indemnify, defend and hold harmless Client from and against any and all damages, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, “Losses”) resulting from any third-party claim, suit, action, investigation or proceeding (each, an “Action”) brought against Client based on: (a) the infringement by Company of any third-party issued patent, copyright or registered trademark, except to the extent such Action is based on Client’s Account Data or Client’s combination or integration of the Service with any Client or third-party method or system; or (b) Company’s gross negligence or willful misconduct. 24. Indemnification by Client: Client will indemnify, defend and hold Company harmless from and against any and all Losses arising from or relating to: (i) any breach by Client of Section 8 or 14 hereof; or (ii) any Action based on the nonperformance or breach by Client of any duty to any client of Client or any agreement or transaction with a Channel, or the use of the Service by Client in violation of applicable law or any third party’s rights, except to the extent such Losses are subject to Section 15 above. 25. Such indemnification under Sections 15 and 16 will be provided only on the conditions that: (a) the indemnifying party is given written notice within 20 days after the indemnified party receives notice of such Action; (b) the indemnifying party has sole control of the defense and all related settlement negotiations, provided any settlement that would impose any monetary or injunctive obligation upon the indemnified party shall be subject to such party’s prior written approval; and (c) the indemnified party provides assistance, information and authority as reasonably required by the indemnifying party. 26. Limitation of Liability: EXCEPT FOR THE OBLIGATIONS OF THE PARTIES UNDER SECTIONS 15 THROUGH 17 INCLUSIVE, AND EXCEPT FOR CLAIMS FOR PERSONAL INJURY DUE TO NEGLIGENCE, WRONGFUL DEATH OR FRAUD, NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE OBLIGATIONS OF THE PARTIES UNDER SECTIONS 15 THROUGH 17 INCLUSIVE, AND EXCEPT FOR CLAIMS FOR PERSONAL INJURY DUE TO NEGLIGENCE, WRONGFUL DEATH OR FRAUD, NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF THE GREATER OF (A) THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO COMPANY WITHIN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, OR (B) $1,000. 27. All notices, requests, demands or consents under this Agreement must be in writing, and be delivered personally, by facsimile followed by written confirmation, or by internationally recognized courier service to the addresses of the Parties set forth in this Agreement. 28. Except as otherwise provided below, neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party. Client may authorize the Services to be made available for use pursuant to the terms of this Agreement by any affiliate of Client (i.e., any entity that controls (by virtue of ownership of a majority of outstanding voting securities) Client or that is controlled directly or indirectly by either Client or any entity directly or indirectly in control of Client); provided that Client shall remain primarily responsible for the performance of all obligations to Company arising from the use of the Services by any such affiliate. Company may assign this Agreement or any rights or obligations hereunder to any Company affiliate or in connection with the merger or acquisition of Company or the sale of all or substantially all of its assets, provided that, if such assignment is to a direct competitor of Client, Client shall have the right within 90 days following receipt of notice of such assignment to terminate this Agreement by written notice to Company’s successor. Any purported assignment in violation of this Agreement shall be void and without force or effect. This Agreement shall be binding upon and inure to the benefit of the Parties, their respective successors and permitted assigns. 29. Dispute Settlement and Arbitration: This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without application of any choice of laws principles and excluding the United Nations Convention for the International Sale of Goods. Except with respect to claims for injunctive relief, ALL CLAIMS, CONTROVERSIES OR OTHER DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE FINALLY AND EXCLUSIVELY SETTLED BY BINDING ARBITRATION before a single arbitrator in the State of Delaware, such arbitration to be conducted pursuant to the American Arbitration Association rules for commercial disputes then in effect. A judgment upon any award rendered in such arbitration may be entered in any court having jurisdiction of the Parties. 30. Any modification, amendment or waiver to this Agreement shall not be effective unless in writing and signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy hereunder shall operate as a waiver of such right, power, or remedy. 31. The Parties are independent contractors with respect to each other, and neither shall be deemed an employee, agent, partner or legal representative of the other for any purpose or shall have any authority to create any obligation on behalf of the other. Neither party intends to grant any third-party beneficiary rights as a result of this Agreement. 32. Any delay in or failure of performance by either party under this Agreement will not be considered a breach and will be excused to the extent caused by any event beyond the reasonable control of such party including, but not limited to, acts of God, acts of civil or military authorities, strikes or other labor disputes, fires, interruptions in telecommunications or Internet or network provider services, power outages, and governmental restrictions. 33. This Agreement supersedes all prior agreements, understandings, representations, warranties, requests for proposal and negotiations, if any. Each provision of this Agreement is severable from each other provision for the purpose of determining the enforceability of any specific provision. If you are consenting on behalf of an entity, you are authorized to, and do, consent to this Agreement for Services on behalf of yourself, your company, the company’s other employees, users, agents, authorized representatives, and assigns. In all cases, you are over 18 years of age.
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