Master Service Agreement
Subject to the terms of this Agreement, EDITED will use commercially reasonable efforts to provide Customer the Services in accordance with the Order Form.
EDITED hereby agrees to provide the Online Services (“Services”) of the EDITED Research & Analytics Product, provided at www.edited.com to the number of paid for users (“Permitted Users”) to grant or procure a right for the Permitted Users to access and use the Application (“Application”) and Software (“Software”) as part of the Services only; to provide ongoing maintenance and, at EDITED’s sole discretion, upgrades and enhancements to the Services.
Provision of Services to Customer shall start on the Order Form Effective Date. Training of Permitted Users shall be scheduled at the earliest convenience following acceptance of this Agreement. EDITED commits to complete training in a timely manner.
As part of the Services, Permitted Users will receive curated industry updates, product and Company updates and may be invited from time to time to events organised by the Company.
Restrictions and Responsibilities
Customer agrees to use the Services solely for its own internal business purposes and for processing its own data, and that it shall not license, sublicense, sell, assign, resell, rent, lease, transfer, distribute, time share or otherwise commercially exploit or make the Services available to any third party as a part of a service bureau arrangement or otherwise; to use all commercially reasonable efforts to prevent unauthorised access to, or use of, the Services, and notify EDITED promptly of any such unauthorised use; to comply with all applicable laws in using the Services. Access to the Services is restricted to Permitted Users, and login sharing is strictly prohibited.
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services or Software; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by EDITED or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
Customer represents, covenants, and warrantCustomer will use the Services only in compliance with EDITED’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless EDITED against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although EDITED has no obligation to monitor Customer’s use of the Services, EDITED may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
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, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer agrees to explicitly allow (“whitelist”) EDITED web crawling activity on its and/or other affiliated web sites. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Confidentiality; Proprietary Rights
Each party (the “Receiving Party&runderstands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of EDITED includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to EDITED to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it 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 Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest to the Customer Data. EDITED shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) all data provided by, or obtained from, the Services or the Software (“Service Data”), and (d) all intellectual property rights related to any of the foregoing.
Edited grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Service Data, during the Term only, in accordance with this Agreement and the Order Form and solely for Customer’s own internal data analysis and demand forecasting purposes, provided always that: Customer shall not license, sublicense, sell, assign, resell, rent, lease, transfer, distribute or otherwise commercially exploit or make the Service Data available to any third party; Customer shall use all commercially reasonable efforts to prevent unauthorised access to, or use of, the Service Data, and notify EDITED promptly of any such unauthorised use; and access and use of the Service Data is restricted to Permitted Users. For the avoidance of doubt, the Software and the Services hereunder are provided as a service under this SAAS Agreement and not a license.
Customer agrees not to publicise work undertaken by EDITED through the use of EDITED’s name without the prior consent of EDITED.
To the extent that any personal data is included in the Customer Data, it shall be processed in accordance with our Data Processing Agreement.
Payment of Fees
Customer will pay EDITED the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. EDITED reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon forty-five (45) days prior notice to Customer (which may be sent by email). If Customer believes that EDITED has billed Customer incorrectly, Customer must contact EDITED no later than 60 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 EDITED’s customer support department.
EDITED may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by EDITED thirty (30) days after the mailing date of the invoice. Unpaid amounts 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 and may result in immediate suspension or termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on EDITED’s net income.
Term and Termination
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and this Agreement, as updated, shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least forty-five (45) days prior to the end of the then-current term.
The Initial Term and any Renewal Terms collectively constitute the “Term” of this Agreement. Any discounts or promotional add-ons applied to the Initial Term will be excluded in all subsequent Renewal Terms.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, crawling obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 5:00 am through 5:30 pm Eastern time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by calling +1 866-450-1549 or any time by emailing email@example.com or through the in-app support feature.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
Warranty and Disclaimer
EDITED shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by EDITED or by third-party providers, or because of other causes beyond EDITED’s reasonable control, but EDITED shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, EDITED does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
EDITED shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided EDITED is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; EDITED will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by EDITED, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by EDITED, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by EDITED to be infringing, EDITED may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT 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 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; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EDITED’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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. This Agreement is not assignable, transferable or sublicensable by Customer except with EDITED’s prior written consent. EDITED may transfer and assign any of its rights and obligations under this Agreement without consent. 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 by both parties, 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 EDITED 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.
All email notices served to EDITED should be sent to firstname.lastname@example.org
The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with EDITED to serve as a reference account upon request. EDITED may refer to the Customer as being a client of EDITED.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of the State of New York without regard to its conflict of laws provisions.
This agreement supersedes all previous understandings, drafts and agreements between the two parties both written and oral, that relate to the subject matter of this agreement
For purposes of this Agreement, each word or phrase listed below shall have the meaning designated below. Other words or phrases used in this Agreement may be defined in the context in which they are used.
“Agreement” shall mean these Software As A Service terms, together with an Order Form.
“EDITED” “the Company” and “Our” shall mean Stylescape Inc trading as EDITED.
“Customer” shall mean the organisation listed on the Order Form only, and does not include any subsidiaries, parent companies or child companies unless otherwise explicitly defined on the Order Form.
“Intellectual Property Rights” shall mean all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Permitted User” shall mean Customer’s paid for and named users authorized to use the Services.
“SAAS” shall mean Software As A Service.
“Service Provider Website” shall mean EDITED’s proprietary website used to support its retail data analytics service and that is made accessible to Customer via one or more uniform resource locators (URLs).
“Services” shall mean, collectively, (a) the Service Provider Website, (b) training (c) any Documentation, and (d) any other services as may be further described in this Agreement.
“Software” shall mean the computer programs and related databases made available to Customer and Permitted Users by EDITED under this Agreement or otherwise used in connection with the Service Provider Website, including, without limitation, any customizations, enhancements, updates, upgrades, new releases, defect corrections and other modifications thereto to which Customer is entitled to pursuant to any support and/or maintenance agreement between EDITED and Customer, if any. Software includes any Installed Applications.