MALOMO, INC.
MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) is made and entered into as of the Effective Date of that certain Service Order executed by Client (the “Effective Date”), to which this Agreement is incorporated into by reference (the “Client” and the “Service Order” respectively), and Malomo, Inc., a Delaware corporation (“Malomo”, “us”, or “we”). This Agreement, together with any documents incorporated herein by reference, governs Client’s use of and access to the Site, Software, and all related documentation and professional services (collectively, the “Services”), provided by Malomo pursuant to any and all Service Orders executed by Client, as such Services are more specifically described in such Service Orders.
Certain defined terms used in this Agreement are set forth in Schedule I (Schedule of Definitions) attached hereto and made a part hereof.
1. Engagement of Malomo. Client hereby retains Malomo to provide, and Malomo hereby agrees to provide Services to Client in accordance with the terms set forth in this Agreement and the Service Order. Unless otherwise provided in the Service Order, Malomo shall provide Client with reasonable technical support services in accordance with Malomo’s then-current Support Policy, which is attached hereto as Exhibit A and incorporated herein by reference (“Support Policy”). Any modifications to the Services listed in the Service Order shall be documented in writing and signed by Client. Client’s use of, and access to, the Services shall at all times be subject to this Agreement, the Service Order, User compliance with Malomo’s then current Terms of Service, as we may establish or amend from time to time, which is available at [LINK] and shall be incorporated herein by reference (the “Terms of Service”), and Malomo’s then current Privacy Policy, as we may establish or amend from time to time, which is available at [LINK] and shall be incorporated herein by reference (the “Privacy Policy”).
2. Access and Registration.
(a) Subject to the terms of this Agreement and payment of the applicable Fees (as defined herein), Malomo grants to Client and its Users, during the Term, a personal, limited, non-exclusive, non-transferable license, in object code format only, to permit Users to use the Software, Services, or Site in accordance with the use parameters, pricing, and payment terms described in this Agreement and the Service Order, solely for Client’s own purposes. The provision of the Services and license hereunder is not contingent upon the delivery of any future features or functionality of the Software, Services, or Site, nor dependent on any verbal or written promises made by Malomo regarding future features, use or functionality of the Software, Services, or Site. This license shall apply to any updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.
(b) In order to access the Services, Client will be required to create a separate User account and password for each User within the Software and Site, as applicable, by completing the required registration form, unless an alternative method of registration is established between Client and Malomo (“Registration”), which requests certain information and data (“Registration Data”), and maintain and update each User’s Registration Data as required. Client shall provide Malomo with accurate, current, and complete information on each User and throughout the Term maintain and promptly update this information if it should change.
(c) Client hereby acknowledges and agrees that we may send Client important information and notices regarding the Services by email or through other means, and that We shall have no liability associated with or arising from Client’s failure to maintain accurate contact or other information, including but not limited to, Client’s failure to receive critical information about the Services. Client acknowledges, consents, and agrees that we may access, preserve, and disclose Registration Data and any other information Client provides if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (i) comply with any legal process; (ii) enforce this Agreement; (iii) respond to claims of a violation of the rights of third-parties; (iv) respond to Client’s requests for Client service; or (v) protect the rights, property, or personal safety of Malomo, the Site, its Users, and the public.
3. Use Restrictions; Client Acknowledgments. Client’s use and access to the Services shall be subject to the following:
(a) Client shall not, and shall not allow any User, to use the Services: (i) in any way that violated any applicable federal, state, local, or international law or regulation, including, without limitation, any laws governing the export of data or software from the United States to other countries; or (ii) to send, knowingly receive, upload, download, use, or re-use any Content that does not comply with Malomo’s Content Policy, which may be amended from time-to-time.
(b) Client understands and agrees that temporary interruptions of the Software, Services, or Site may occur as normal events, and further understands and agrees that Malomo may have no control over third party networks that Client or its Users may access in the course of the use of the Software, Services, or Site, and therefore, delays and disruption of other network transmissions are completely beyond Malomo’s control.
(c) Client understands and agrees that Malomo assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any Client or User Content, communications, or personalization settings. Malomo neither endorses nor assumes any liability for the contents of any material uploaded or submitted by Users. We shall not be responsible for any pre-screening, monitoring, or editing of the Content Users post or provide to Malomo.
(d) Client agrees that the Services may, at Client’s election, automatically download and install updates, upgrades and additional features that Malomo deems reasonable or beneficial and/or reasonably necessary. Client acknowledges and agrees that any obligation Malomo may have to support the previous version(s) may be ended upon the availability of the update, upgrade and/or implementation of additional features.
(e) Client acknowledges that we reserve the right to cooperate fully with investigations of violations of systems or network security owned or controlled by any Third Party Applications, including by cooperating with law enforcement authorities in investigating suspected criminal violations.
(f) We, and our agents, have the right in our sole discretion to remove any Content, Client Data, or communications that, in our sole discretion, do not comply with this Agreement, any other acceptable use standards we implement, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such Content, Client Data, or communications. Client hereby consents to such removal and waives any claim against us arising out of such removal of Content, Client Data, or communications.
(g) Client acknowledges and agrees that it is solely responsible for causing its Users to comply with the Terms of Service, and understands and agrees that Malomo may (i) terminate this Agreement pursuant to Section 7; or (ii) with timely telephonic or electronic notice to Client, suspend access to the Software, Services, or Site if Malomo reasonably concludes that the Software, Services, or Site (A) are being used to engage in denial of service attacks or illegal activity; (B) are causing immediate, material, and/or ongoing harm to Malomo or others; or (C) are being used in violation of the Terms of Service or Privacy Policy. If Malomo suspends Client’s access to the Software, Services, or Site, Malomo shall use commercially reasonable efforts to limit the suspension to the offending portion of the Software, Services, or Site and resolve the issues causing such suspension. Client further agrees that Malomo shall not be liable to Client nor to any third party for any suspension of the Software, Services, or Site under such circumstances as described in this Section.
(h) Malomo may make messaging services available for Client to utilize in communications with its customers (such messages being “Client Messages”). Malomo will not inspect the contents of messages except in the narrowly defined situations provided under the Electronic Communications Privacy Act, or as other required by law or by court or governmental order. Client acknowledges and agrees that Client shall be solely responsible for (i) collecting and maintaining Messaging Data in accordance with all applicable laws, and (ii) providing any required notice, or obtaining any required consent, from the recipients of Client’s messages in accordance with all applicable laws.
4. Client Responsibilities.
(a) Client is responsible for procuring and maintaining the network connections, high-speed internet, and all software and equipment that may be necessary to connect the Client network to the Services, including, but not limited to, “browser” software that supports protocols utilized by the Software, Services, or Site such as the latest versions of Mozilla Firefox, Chrome, Edge, or Safari. Malomo assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by Malomo.
(b) Client shall authorize access to and assign unique passwords and usernames for the Users associated with the Client’s Registration. User logins are for designated Users and cannot be shared or used by more than one User. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software, Services, or Site and shall promptly notify Malomo of any unauthorized access or use and any loss or theft or unauthorized use of any User’s usernames or passwords by emailing Malomo at [email protected]. Client is solely responsible for maintaining the confidentiality of Client’s password, usernames, and account and for any and all statements made and acts or omissions that occur through the use of Client’s password and account, including any mail sent and any charges incurred. Therefore, Client must take steps to ensure that others do not gain access to Client’s password and account. Malomo will never ask Client for Client’s password. Client may not transfer, sell, or share Client’s account with anyone, and we reserve the right to immediately terminate Client’s account in the event of any unauthorized transfer or sharing thereof. We have the right but not the obligation to assume, without further inquiry, that any communication we receive through Client’s account has been made by Client.
5. Representations and Warranties.
(a) Each party represents and warrants, individually, that (i) it has the legal power and authority to enter into this Agreement; and (ii) entering into this Agreement does not conflict with or result in any breach or violation of any of the terms and provisions of any agreement, judgment, order, statute or other instrument or restriction of any kind binding that party.
(b) Client represent and warrant that (i) it has not falsely identified itself nor provided any false information to gain access to the Software, Services, or Site; (ii) that all billing information provided to Malomo is correct.
(c) Client represents and warrants that all information provided in the Registration Data is true, complete, and accurate, and Client agrees to maintain and update this information as required in order to keep it current, complete and accurate.
(d) Client represents and warrants that Client shall cause its Users to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Software, Services, or Site, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
(e) Client represents, warrants, and covenants that Client shall only use the Services, Software, and Site for lawful purposes and directly in connection with the purposes for which the Services are intended to be used.
6. Fees and Payment.
(a) Fees. In consideration for the Services provided by Malomo, Client shall pay to Malomo the amounts specified in the Service Order (“Fee” or “Fees”). The Fee does not include sales, use or similar taxes, which (if due) shall be paid by Client. Malomo shall invoice Client in accordance with the terms of the Service Order for Fees. Payment for any undisputed Fees is due in accordance with payment terms established in the Service Order or upon Client’s receipt of each invoice if such payment terms are not specified in the Service Order. Any fees, payments, reimbursements or credits owing to either party pursuant to this Agreement not paid within thirty (30) days after they become due shall accrue simple interest at the rate of one and one half percent (1.5%) per month, but in no event to exceed the highest lawful rate of interest, calculated from the date such amount was due until the date payment is received by the party to whom debts are owed.
(b) Dispute; Failure to Pay; Suspension. If Client determines, in good faith, that Malomo has invoiced Client incorrectly, Client must contact Malomo customer support at [email protected] no later than thirty (30) days after Client’s receipt of such invoice in order to be eligible to receive an adjustment or credit on such unpaid amounts. Malomo reserves the right to suspend Client’s and any Users’ access to and/or use of the Software, Site, or Services if any undisputed Fee is due but unpaid. Client agrees that Malomo shall not be liable to Client or to any Users or other third party for any suspension of the Services pursuant to this Section. If either Malomo or Client employs an attorney to enforce the payment terms of this Agreement, it may recover its actual attorney’s fees and costs, including expert witness fees.
(c) Modification of Fees. Malomo reserves the right to modify its Fees and charges, upon the delivery of notice to Client at least thirty (30) days prior to the expiration of the then-current Term, which notice may be provided by e-mail. If Client elects to add additional products, services, features, functionalities, or service levels, Malomo may increase the Fees or amounts due from Client, subject to the agreement of both parties, which may be obtained by email. All pricing terms are confidential, and Client shall not disclose them to any third party.
(d) Billing. Malomo may require that Client provide, and Client hereby agrees to provide, complete and accurate information necessary for Malomo to charge Client for Fees, including, but not limited to, valid credit card (or other payment card) information, billing address, and other related information (the “Payment Information”). Payment Information shall be provided to Malomo through Client’s account with the Software or Site, and Client hereby agrees to maintain complete and accurate Payment Information during the Term. Malomo will use the Payment Information to automatically charge Client, or issue an invoice to Client, on a monthly basis, unless otherwise provided in the Service Order. If, for any reason, Client’s credit card company refuses to pay the amount billed for the Service, Client agrees that we may, at our option, suspend or terminate Client’s access to the Software, Services, or Site and require Client to pay the overdue amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts. Client agrees that during the Term, unless earlier terminated pursuant to this Agreement, Client will continue to accrue charges for which Client remains responsible, even if Client does not use the Software, Services, or Site.
For the avoidance of any doubt, by Client’s execution of the Service Order and acceptance of this Agreement, Client hereby authorizes Malomo, or any third-party payment processor utilized by Malomo, to (i) store Client’s Payment Information, (ii) charge Client, using the Payment Information, for the Fees, in accordance with the Service Order and this Agreement, and (iii) authenticate Payment Information provided to Malomo by charging an amount less than One Dollar ($1) to Client and reversing such charge.
(e) Special Projects. If Client requests a feature, enhancement, or third-party integration to the Software, Malomo reserves the right to deliver the request under a special project subject to an hourly rate of one hundred and fifty dollars ($150) per hour. Malomo will quote and obtain written approval from the Client before any special project work commences.
(f) Travel. Travel is not expected and is uncommon in delivering the Malomo Services. If Client requests, and Malomo agrees, in its sole discretion, to travel as part of delivering the Malomo Services, then Client will reimburse Malomo for all reasonable expenses, including but not limited to meals, lodging, air, and ground travel related to delivering the Services. All travel and travel expenses will be pre-approved in writing by Client to be eligible for reimbursement.
7. Termination.
(a) Without Cause. Either party may terminate this Agreement, without cause, upon the expiration of the Initial Term or expiration of a Renewal Term (each as defined in the Service Order), by providing the other party written notice of its intent to terminate the Agreement at least ten (10) days prior to the expiration of the then-current Term.
(b) Termination with Cause. A party may terminate this Agreement for cause: (i) upon a material breach of this Agreement, if such breach remains uncured for thirty (30) days after written notice of such breach was delivered, or (ii) immediately 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. Notwithstanding anything herein to the contrary, the termination rights contained in this Section 7 shall not limit Malomo’s right to suspend Services in accordance with the terms of this Agreement.
(c) Termination Policies. The following policies apply to any termination or expiration of this Agreement:
(i) Upon termination or expiration of this Agreement for any reason, Malomo shall be entitled to all of the Fees due under this Agreement for any Services rendered prior to the date of termination or expiration.
(ii) Upon termination or expiration of this Agreement for any reason, Client shall have no rights to continue use of the Software, Site, or Services.
(iii) Upon termination or expiration of this Agreement, upon written request, Malomo shall make available to Client a copy of the Client Data within thirty (30) days of termination. Client agrees and acknowledges that after thirty (30) days following a termination or expiration of this Agreement, Malomo has no obligation to retain the Client Data or any Content related to Client or Users and may delete or destroy such Client Data or Content in its sole and absolute discretion.
(iv) Upon termination of this Agreement caused by Client’s material breach of this Agreement, Client acknowledges and agrees that Malomo may immediately deactivate or delete Client’s account and all related information and files in that account and/or bar any further access to such files, Client Data or the Services.
(v) Client further agrees that Malomo shall not be liable to Client nor to any third party for deletion or destruction of Client Data, provided that Malomo is in compliance with the terms of this Section. Client agrees to hold us harmless and indemnify us from any third party claims arising for the termination of Client’s account in accordance with this Agreement.
(vi) Client agrees that any material breach of this Agreement will result in irreparable harm to Malomo for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Malomo will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. Client waives any requirement for posting of a bond or other security if Malomo seeks such an injunction.
8. Intellectual Property.
(a) Ownership of Client Data. As between Malomo and Client, all right, title and interest in and to the Client Data is owned exclusively by Client, provided, that, in the event Malomo aggregates and/or anonymizes Client Data resulting from Client’s use of any Services and aggregates such Client Data with that of other Malomo clients in a way that does not reveal Client’s identity or personally identifiable information, Malomo may use such aggregated and/or anonymized Client Data in the manner and for such purposes as are set forth in the Privacy Policy, including, but not limited to, use of such aggregated or anonymized Client Data in marketing and promotional materials.
(b) Responsibility for Client Data. Client shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and content permissions for all Client Data. All Client Data available through the Software or Services by Client and Users has been created, designed, or provided solely by Client or third parties without the participation or involvement of Malomo. Malomo assumes no responsibility and makes no representations, warranties, or guarantees as to the Client Data or any other content available on the Software or Services as to accuracy, relevance, propriety, legality, or usefulness to the Client, Users or any third parties.
(c) License to Client Data. Subject to the terms and conditions of this Agreement, Client grants to Malomo a nonexclusive, paid-up or royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license right to copy, distribute, display, perform, publish, translate, adapt, modify, sublicense, and otherwise use certain Client Data including templates, samples, or information regarding or relating to the Software or Services provided that such materials do not include Client’s Confidential Information. In addition, Malomo shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into Software or Services any suggestions, enhancement requests, recommendations, or other feedback provided by Client, including Users, relating to the operation of the Software or Services.
(d) Malomo Intellectual Property. Client agrees that Malomo, or its licensors, owns all rights, title, and interest in and to (i) the Software, Site, Services, or any other products, applications, designs, tools, frameworks, methods, processes and all other intellectual property developed or created by Malomo (including all updates, enhancements, and derivative works thereof and thereto); and (ii) any and all copyrights, patents, trade names, trademarks, trade secrets, logos (the “Malomo Marks”), and other proprietary and intellectual property rights of Malomo (collectively, the “Malomo IP”). Client agrees that it may not reverse engineer, decompile, or disassemble any Malomo IP. Except as provided in this Agreement, the time-limited access license, granted to Client does not convey any rights in the Malomo IP, Software, or Site, express or implied, or ownership in the Software or Site. Any rights not expressly granted herein are reserved by Malomo. Client agrees not to display or use the Malomo Marks in any manner without Malomo’s express prior written permission. The trademarks, logos, and service marks of third-party application providers (“Marks”) are the property of such third parties. Client shall not use these Marks without the prior written consent of such third party who may own the Marks.
(e) Promotion. Client agrees that Malomo may, in its sole discretion, display Client’s name and logo to identify Client as a Malomo customer in Malomo’s marketing and promotional materials, including, but not limited to, display on the Site and Malomo’s social media accounts.
9. Confidentiality.
(a) Confidential Information. The Client and Malomo, as the case may be, (the “Receiving Party”) shall each hold in trust for the other party hereto (the “Disclosing Party”), shall not disclose to any person, firm or entity other than the Receiving Party’s employees and agents who have a need to know such information in order to perform the Services, and shall not use any Confidential Information (as defined herein) of the Disclosing Party for any purpose other than pursuant to this Agreement. For purposes of this Agreement, “Confidential Information” shall mean any and all data, proprietary information, trade secrets, and other information not generally known outside of the Disclosing Party whether prepared or developed by or for Disclosing Party, either prior to or after the Effective Date, or received by Disclosing Party from any outside source, and includes all technical or proprietary information of Disclosing Party, including but not expressly limited to, all trade secrets, know-how, inventions (whether patentable or not), discoveries and improvements, all source codes and object codes, all software codes and subroutines, all hardware configuration, processing, marketing and business plans, financial data and records, sales records, sales methods, vendor information, reports, report forms, customer files, customer data, customer lists, potential customer lists, and any other data or information relating to the present or future business of the Disclosing Party. Notwithstanding the foregoing, Confidential Information shall not include information that: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the Receiving Party; (iv) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (vi) is aggregate or anonymized data regarding use of Malomo’s products and services that does not contain any personally identifiable or Client-specific information.
(b) Non-Disclosure Obligations. Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (iii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information); and (iv) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.
10. Indemnification.
(a) By Malomo. Malomo agrees to defend, indemnify, and hold harmless Client, and its agents, assigns, directors, employees, officers, successors, and affiliates (the “Client Indemnitees”) against any and all claims, demands, damages, liabilities, losses, or judgments (including reasonable attorneys’ fees) asserted by any third-party (“Claim” or “Claims”), arising out of (i) any third party claim that Client’s use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, or (ii) Malomo’s gross negligence or willful misconduct in the performance of its obligations under this Agreement; provided, that, Malomo’s obligations under this Section 10(a) shall not apply to the extent that the Claim arises out of: (A) Third Party Applications or Client Data; (B) modification of the Service or any Malomo IP other than by Malomo or with Malomo’s prior written consent; or (C) any other act, omission, or matter described in Section 10(b).
(b) By Client. Client agrees to defend, indemnify and hold harmless Malomo, and its agents, assigns, directors, employees, officers, successors, and affiliates (the “Malomo Indemnitees”) against any and all Claims arising out of:
(i) Client Data, including any storage or process of Client Data by or on behalf of Malomo in accordance with this Agreement;
(ii) any other materials or information (including documents, data, specifications, software, content, or technology) provided by or on behalf of Client, or any User, including Malomo’s compliance with any specifications or directions provided by or on behalf of Client, or any User;
(iii) any material breach by Client of this Agreement or the Service Order;
(iv) any material breach by any Users of the Terms of Service or Privacy Policy; or
(v) negligence or willful misconduct of Client, or any User, or any third party on behalf of Client, in connection with this Agreement.
(c) Indemnification Requirements. The obligation to defend, indemnify and hold the Indemnitees, pursuant to Sections 10(a) and (b), harmless is expressly conditioned on the following: (i) the indemnified party shall promptly notify the indemnifying party, in writing, of any Claim or demand for which an indemnified party will seek indemnification; (ii) the indemnifying party shall control the defense of any action, Claim or demand and the negotiations for their settlement or compromise, provided that any settlement or compromise that requires contribution from indemnified party must be approved by the indemnified party; and (iii) the indemnified party shall cooperate with the indemnifying party in a reasonable way to facilitate the negotiation, settlement or defense of any Claim or demand. The provisions of this Section 10 shall survive the termination of this Agreement.
11. Limitation of Liability.
(a) EXCLUSION OF DAMAGES. IN NO EVENT SHALL MALOMO OR ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PROFITS, PRODUCTION, USE, BUSINESS, DIMINUTION IN VALUE, OR REVENUE; (ii) INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT, EXEMPLARY, SPECIAL, OR ENHANCED DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE; (iii) COST OF COVER, COST OF SUBSTITUTE GOODS OR SERVICES; (iv) LOSS OF GOODWILL OR REPUTATION; (v) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (vi) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES.
(b) CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MALOMO AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID BY CLIENT TO MALOMO UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS TO ACHIEVE ITS ESSENTIAL PURPOSE.
12. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SOFTWARE, SITE, SERVICES, AND ALL RELATED CONTENT AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MALOMO MAKES NO WARRANTY THAT: (i) THE SOFTWARE, SITE, OR SERVICES WILL MEET CLIENT’S REQUIREMENTS FOR ITS INTENDED USE, (ii) THE SOFTWARE OR SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE, SITE, OR SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SOFTWARE, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY CLIENT FROM MALOMO WILL MEET CLIENT’S EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS; (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SOFTWARE, SITE, OR SERVICES OR THE SERVER(S) THAT MAKE THE SOFTWARE OR SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SOFTWARE OR SITE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MALOMO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE USE OF THE SOFTWARE, SITE, OR SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE SOFTWARE OR SITE IS DONE AT CLIENT’S OWN RISK AND WITH CLIENT’S AGREEMENT THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM, MOBILE DEVICE, OR ANY OTHER PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
MALOMO IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES, FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, TEXT MESSAGES, OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SITE OR SOFTWARE.
ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY SOFTWARE, SERVICES, PRODUCTS, OR MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THE SOFTWARE OR SERVICES FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY MALOMO. CLIENT ACKNOWLEDGES THAT ALL TRANSACTIONS RELATING TO ANY PRODUCTS OR SERVICES OFFERED BY ANY PARTY ARE AGREED TO SOLELY BETWEEN CLIENT AND SUCH THIRD PARTY. MALOMO MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED BY AND BETWEEN CLIENT AND THIRD PARTIES WHEN FACILITATED THROUGH, OR IN CONNECTION WITH THE SOFTWARE OR SITE, AND CLIENT UNDERSTANDS AND AGREES THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT ITS OWN RISK.
13. Security. Client hereby acknowledges and agrees that Malomo cannot, and does not, guarantee or warrant that content available for download from the internet, Site, or Software will be free of viruses or other destructive code. Client is responsible for implementing sufficient procedures and checkpoints to satisfy Client’s particular requirements for anti-virus protections and accuracy of data input and output, and for maintaining Client Data externally from the Site or Software. Notwithstanding Client’s foregoing responsibility, Malomo shall maintain commercially reasonable administrative, physical, and technical safeguards for the protection, confidentiality, and integrity of Client Data. If the Software or Site are impacted by any failure or incident involving data loss, Malomo shall take all commercially reasonable actions to restore the data. NOTWITHSTANDING THE FOREGOING, MALOMO MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING RECOVERY FROM DATA LOSS.
14. Implementation. Implementation and training services ordered by Client as set forth in the applicable Service Order shall be performed in accordance with Malomo’s customary practices for the level of services purchased. Malomo does not provide dedicated project management for Client during implementation unless separately purchased or provided by Malomo at its sole discretion. Implementation is performed remotely unless otherwise specified. Malomo is not responsible, and shall not be liable, for Client’s configuration decisions or Client’s compliance with all laws and regulations applicable to Client’s unique circumstances, nor for any delays in implementation caused by Client, including but not limited to, Client delays in providing clean and validated data, if needed, or Client delays in making necessary business decisions with respect to the configuration of the Software, Services, or Site.
15. Force Majeure. Except for Client’s obligation to timely pay Fees owed or arising hereunder, no party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from causes beyond the reasonable control of the Impacted Party, including, but not limited to: acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; fire; flood; epidemic; and freight embargoes (each a “Force Majeure Event”).
16. Successors in Interest. This Agreement and all of the provisions of this Agreement shall be binding upon and enforceable by and against the successors in interest and permitted assigns of the Parties.
17. Notices. Any written notice or demand required by this Agreement or the Service Order shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, electronic mail, or other guaranteed delivery to the other party at Malomo’s address provided herein or Client’s address provided on the Service Order, as each may be updated from time to time. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery or electronic mail, provided that such electronic mailing is sent before 5:00 p.m. local Indianapolis time on a day that is not a Saturday, Sunday, or federal holiday (a “Business Day”), and such electronic mailing shall be deemed delivered on the next Business Day if not sent on a Business Day or sent on or after 5:00 p.m. local Indianapolis time on a Business Day, (b) one day after being sent by overnight commercial courier or other guaranteed delivery, or (c) as of the date on the return receipt if the notice is sent by registered or certified mail.
To:
Malomo, Inc.
8520 Allison Pointe Blvd Ste 223, PMB 47356
Indianapolis, IN 46250
With a copy to:
Wormser Casey LLC
5255 Winthrop Ave., Suite 4
Indianapolis, IN 46220
Attn: Barry Wormser
18. Arbitration; Governing Law and Jurisdiction.
(a) Informal Dispute Resolution. The Parties agree to attempt in good faith to resolve and settle all disputes about or relating to this Agreement through informal dispute resolution.
(b) Arbitration. All disputes, controversies and claims of any kind arising out of or relating to this Agreement or the rights and obligations of the parties not resolved through informal dispute resolution shall be resolved through arbitration by the American Arbitration Association in Marion County, Indiana in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules. This provision shall survive the termination or expiration of this Agreement. Nothing contained herein shall prevent a party from applying to and obtaining from any court having jurisdiction, a temporary or preliminary injunction, and/or other emergency relief to enforce its rights and obligations under this Agreement prior to the filing of any arbitration proceeding or pending the trial, or rendering of a decision or award pursuant to any arbitration proceeding conducted hereunder. The foregoing shall not prevent a party from terminating this Agreement as set forth in this Agreement.
(c) Governing Law and Jurisdiction. This Agreement shall be governed, construed, and enforced under and in accordance with the laws of the State of Indiana without giving effect to any choice or conflict of law provisions thereof, and without regard to its place of execution or its place of performance. To the extent that applicable law does not allow for any matters arising under or out of this Agreement to be resolved pursuant to Section 18(b), the jurisdiction and venue for such matters will lie in the State of Indiana and the courts of the United States District Court for the Southern District of Indiana, Indianapolis Division and Marion County, Indiana.
19. Assignment. This Agreement, and all rights and obligations under this Agreement, may be assigned by Malomo provided that the assignee is capable of performing Malomo’s obligations under this Agreement. Client shall not assign this Agreement without the prior written consent of Malomo.
20. Severability. Should any term or provision of this Agreement be held to be unenforceable, invalid, or prohibited under law, then such provision shall be deemed restated to reflect the original intent of Malomo and Client as nearly as possible in accordance with applicable law and the remainder of this Agreement.
21. Interpretation. This Agreement has been freely negotiated and entered by Malomo and Client. This Agreement shall not be construed in any manner against a party because of such party’s role in drafting this Agreement.
22. Waiver. The waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of such right in the future or a waiver of any other rights established under this Agreement.
23. Counterparts. This Agreement may be executed in several counterparts (which may be delivered electronically or by facsimile), each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
24. International Use. Although the Software or Site may be accessible worldwide, Malomo makes no representation that the Software, Services, or Site are appropriate or available for use in locations outside the United States and accessing them from territories where the Software or Site contents are illegal is prohibited. The materials on the Site may not be appropriate or functional for use outside the United States of America. Clients located outside the United States of America who use the Site understand this limitation. Those who choose to access the Software, Services, or Site from other locations do so on their own initiative and are solely responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Software, Services, or Site is void where prohibited.
25. Entire Agreement. This Agreement, including all documents referred to herein and attached hereto, including, but not limited to, the Service Order, Terms of Service, and Privacy Policy, constitutes the entire agreement of the parties on the subject matter hereof and supersedes all prior representations, understandings and agreements between the parties with respect to such subject matter. No provision of this Agreement may be amended, waived, or discharged unless a written amended, waiver or discharge has been signed by duly authorized officers or representatives of both parties.
SCHEDULE I
SCHEDULE OF DEFINITIONS
“Agreement” means this Master Services Agreement.
“Business Day” has the meaning set forth in Section 17.
“Claim” has the meaning set forth in Section 10(a).
“Client” has the meaning set forth in the preamble.
“Client Data” means all electronic data or information, including Messaging Data and Client Messages, submitted by Client or its affiliates to the Software or Site or otherwise used in connection with the Services.
“Client Indemnitees” has the meaning set forth in Section 10(a).
“Client Messages” has the meaning set forth in Section 3(h).
“Content” means any information, data, materials, templates, examples, forms, text, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed by Users.
“Confidential Information” has the meaning set forth in Section 9(a).
“Disclosing Party” has the meaning set forth in Section 9(a).
“Effective Date” has the meaning set forth in the preamble.
“Fee” has the meaning set forth in Section 6(a).
“Force Majeure Event” has the meaning set forth in Section 15.
“Impacted Party” has the meaning set forth in Section 15.
“Messaging Data” means the information relating to the recipients of Client Messages, including, but not limited to personally identifiable information such as names, phone numbers, and email addresses.
“Malomo” or “us” or “we” means Malomo, Inc.
“Malomo Indemnitees” has the meaning set forth in Section 10(b).
“Malomo IP” has the meaning set forth in Section 8(d).
“Malomo Marks” has the meaning set forth in Section 8(d).
“Marks” has the meaning set forth in Section 8(d).
“Payment Information” has the meaning set forth in Section 6(d).
“Privacy Policy” shall mean Malomo’s Privacy Policy found at [INSERT LINK], as the same may be amended from time to time.
“Receiving Party” has the meaning set forth in Section 9(a).
“Registration” has the meaning set forth in Section 2(b).
“Registration Data” has the meaning set forth in Section 2(b).
“Services” has the meaning set forth in the preamble.
“Service Order” has the meaning set forth in the preamble.
“Site” means the access controlled, server-based site made available to Client and Client’s Users located on the internet at www.gomalomo.com.
“Software” means access to and use of certain cloud-based software-as-a-service offering(s) for services utilizing Malomo’s software application.
“Support Policy” has the meaning set forth in Section 1.
“Term” means the [Initial Service Term] specified in the Service Order and any [Renewal Terms].
“Terms of Service” shall mean Malomo’s Terms of Service found at [INSERT LINK], as the same may be amended from time to time.
“Third Party Applications” means online, Web-based applications or services, and offline software products that are provided by third parties and may operate in conjunction with the Services.
“Users” means individuals who are authorized by Client to use the Services, for whom Client has completed Registration.
EXHIBIT A
SUPPORT POLICY
Company will provide Technical Support to Customer on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by:
Sending an email to [email protected]
Using the help icon in the dash.gomalomo.com dashboard
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within two (2) business days.
Prior Terms Versions