Master Subscription Agreement
Effective Date: 7/30/2012
AddShoppers is a provider of certain online software services and Merchant desires to obtain Online Software Services. AddShoppers desires to provide Merchant with access to certain of these software services pursuant to this Agreement.
2. SOFTWARE SERVICES
2.1 Provision of Software Services. Subject to the terms and conditions of this Agreement, including without limitation Merchant’s payment of all of the fees due hereunder, AddShoppers will provide Merchant with the software services described in one or more addenda that describe the software services (each a “Software Service” and collectively the “Software Services”) together with the pricing and other terms and conditions (each a “Software service addendum”). The Software Services will be provided for the applicable terms set forth in the respective Software service addendum. Merchant may use the Software Services solely for their intended purpose in accordance with this Agreement.
2.2 Merchant Assistance. Merchant shall provide AddShoppers with all information and assistance as reasonably required for AddShoppers to activate and operate the Software Services for Merchant pursuant to this Agreement. Merchant grants AddShoppers all rights or licenses necessary for AddShoppers to use such information in connection with the provision of Software Services.
2.3 Personnel. Merchant shall designate one contact as the responsible party for communication with AddShoppers during provision of the Software Services. Merchant may change such contact upon written notice to AddShoppers.
2.4 Infrastructure. AddShoppers may host the Software Services using its own infrastructure or it may engage a third party to host the Software Services on its behalf. In either case, AddShoppers will use commercially reasonable efforts to make the Software Services reasonably available for use by Merchant through the use of redundant systems, power backups, redundant Internet connections, or other backup systems. Data will be backed up on at least a daily basis. In the event a data restore is required as a result of equipment failure, AddShoppers will bear the costs of such restore.
2.5 Support and Maintenance. AddShoppers will provide Merchant with maintenance and support regarding the use of the Software Services during the Term in accordance with each Software service addendum. AddShoppers, in its sole discretion, may remove or revise any functionality of the Software Services in any new release or update thereof. Maintenance updates to the Software Services including Facebook API maintenance will be provided at no charge to Merchant. However, certain major functional updates or enhancements may, in AddShoppers’s discretion, be considered new products that will be made available to Merchant at an additional charge. A functional update or enhancement to an existing Software Service that Merchant has already purchased that would be considered a new product requiring an additional charge will be comprised of new technology and/or features that were not available for purchase or release at the time the Software Service addendum (containing the applicable Software Service) was signed. Merchant shall be under no obligation to subscribe to such new products. Scheduled system maintenance will take place during a normal maintenance window during minimal-traffic times. During such time, the Software Services may be unavailable. Emergency maintenance may be required at other times in the event of system failure. AddShoppers will use commercially reasonable efforts to notify Merchant of the emergency maintenance event and promptly remedy any system failure and restore the Software Services. Merchant recognizes that delivery of certain functionality may be dependent on services provided by Facebook and that the availability and response time of services provided by Facebook are not the responsibility of AddShoppers.
2.6 Restrictions. Except for the use of the Software Services and the rights granted herein, Merchant will not (a) reproduce, display, download, modify, create derivative works of or distribute the Software Services, or attempt to reverse engineer, decompile, disassemble or access the source code for the software or any component thereof; (b) use, evaluate or view the Software Services for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Software Services; (c) use the Software Services, or any component thereof, in the operation of a service bureau to support or process any data of any party other than Merchant; (d) permit any party, other than the then-currently authorized users to independently access the Software Services; (e) access the Software Services other than through the authorized User IDs and password; and (f) neither Merchant nor an Authorized User shall remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Software Services. Except for the express rights granted herein, AddShoppers does not grant any other licenses, whether express or implied, to any AddShoppers software, software services, or intellectual property.
2.7 Uptime SLA. AddShoppers shall use all reasonable commercial efforts, being no less than accepted industry standards in this regard, to ensure that the AddShoppers technology is available to you 99.9% of the time in any calendar month. If it is not, you may be eligible to receive Service Credits up to one week edit: Includes Seven (7) days of Services added to the end of your billing cycle, at no charge to you, if the Monthly Uptime Percentage for any calendar month is less than 99.99%.
3. FEES, PAYMENT AND REPORTING
3.1 Fees. Merchant shall pay AddShoppers the fees set forth in each Software service addendum. All fees are due and payable in U.S. dollars as of the AddShoppers invoice date and shall be paid via check, credit card, or electronic funds transfer to AddShoppers’s bank in accordance with the instructions on the AddShoppers invoice. All fees are exclusive of applicable sales, excise, or use taxes. Merchant will be liable for all costs and expenses attendant to collection of past due amounts, including Attorneys fees and other fees and cost of collection and/or litigation. AddShoppers shall be reimbursed by Merchant for all reasonable expenses incurred by AddShoppers in the performance of the Software Services, including travel and lodging expenses pursuant to AddShoppers’s then current policy. AddShoppers will maintain complete and accurate accounting records to substantiate AddShoppers’s charges and expenses.
3.2 Late Payments. If payment is not made within thirty (30) days after the AddShoppers invoice date, AddShoppers may charge Merchant a late fee on the unpaid balance at the lesser of two percent (2%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly.
3.3 Reporting. All usage figures shall be based on AddShoppers reporting data, which shall be the only reporting information used for calculation of any additional payments due from Merchant for any usage based fees set forth in each Software service addendum.
4. PROPRIETARY RIGHTS
4.1 Software Services Ownership. AddShoppers shall own all right, title, and interest in and to the Software Services and any related computer programs or applications, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein, as well as all processes, know-how, methodology and the like utilized by or created by AddShoppers in performing under this Agreement. Merchant agrees to assign all right, title, and interest it may have in the foregoing to AddShoppers.
4.3 Confidentiality. Merchant acknowledges that the Software Services, the terms of this Agreement and any Software service addendum, and any other proprietary or confidential information provided to Merchant by AddShoppers (“AddShoppers Confidential Information”) constitutes valuable proprietary information and trade secrets of AddShoppers. AddShoppers acknowledges that the Data provided to AddShoppers by Merchant (“Merchant Confidential Information”) constitutes valuable proprietary information and trade secrets of Merchant. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use (and in AddShoppers’s case, subcontractors and agents who have a need to know in connection with performing software services under this Agreement and who are subject to obligations of confidentiality) subject to AddShoppers’s license to use the Data as provided in this Section above, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this Section. Each receiving party agrees to promptly report any breaches of this section to the disclosing party. The obligations and restrictions contained in this Section do not apply to information: (a) which is now or subsequently becomes publicly available other than by breach of this Agreement; (b) which was already in the recipient’s possession and at its free disposal at the time of disclosure and was not obtained directly or indirectly from disclosure; or (c) which is independently developed by the recipient without use of the other party’s Confidential Information.
5. LIMITATIONS OF LIABILITY
5.1 Warranty and Warranty Disclaimer. AddShoppers warrants to Merchant that it has the requisite corporate power and authority to enter into this Agreement and to provide the Software Services and that its Software Services will be performed in a professional and workmanlike manner. ALL OTHER WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. AddShoppers DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL MEET THE REQUIREMENTS OF MERCHANT OR ANY USERS OR THAT THE OPERATION OR USE OF THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
5.2 Merchant Acknowledgment. Merchant acknowledges that Merchant has control over and is responsible for the Merchant website, system or equipment that utilizes or accesses the Software Services, and the accuracy of or how Merchant may interpret, rely upon, or use the Software Services. In no event shall AddShoppers be responsible for Merchant actions or decisions based upon information or data generated by the Software Services, including without limitation any loss of reputation or loss of traffic on its website; or what actions it may take as a result of having used the Software Services or relied upon any information or data obtained through the Software Services. Merchant further acknowledges and agrees that Facebook may change its technology, policies, approval process or business rules at any time and that these changes may impact AddShoppers’s ability to deliver or support particular features and functionality. Merchant shall remain responsible and obligated to pay all fees and for the full term for each Software Service addendum provided however that in the event there is a material change in the features and functionality of the Software Services that impairs the ability of AddShoppers to deliver substantially the same Software Services, Merchant shall have the right to terminate this Agreement.
5.3 Limitations of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (OR TO ANY PERSON CLAIMING UNDER OR THROUGH THE OTHER PARTY) UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOSS OF GOODWILL, WORK STOPPAGE, LOST OR CORRUPTED DATA, LOST PROFITS, LOST SAVINGS, LOST REBATES, LOST BUSINESS OR LOST OPPORTUNITY (WHETHER ARISING DIRECTLY OR INDIRECTLY) OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, TREBLE OR EXEMPLARY LOSSES OR DAMAGES, IRRESPECTIVE OF THE NATURE OR THEORY OF LIABILITY WHICH MAY GIVE RISE TO SUCH LOSSES OR DAMAGES (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OR WAS AWARE OF THE POSSIBILITY THEREOF. IN NO EVENT WILL AddShoppers AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY MERCHANT TO AddShoppers IN THE LAST TWELVE (12) MONTHS. THESE LIMITATIONS OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT, AND AddShoppers WOULD NOT LICENSE THE SOFTWARE SERVICES TO MERCHANT WITHOUT SUCH LIMITATIONS. THE LIMITATIONS IN THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW.
5.4 AddShoppers’ Indemnity. AddShoppers will indemnify and defend Merchant, and its directors, officers, shareholders and employees from and against any and all third party claims, suits, demands or actions (“Claims”) brought against you alleging that your use of the Software Services in accordance with this Agreement infringes the United States patent, copyright or other United States intellectual property right of such third party and shall indemnify you against losses, damages, expenses, judgments, and costs finally awarded in, or agreed by us in settlement of, any such Claim and for your reasonable legal and other professional fees and expenses in relation to such Claim.
5.5 AddShoppers’ Indemnity Remedies. If the Software Services become, or in AddShoppers’s opinion are likely to become, the subject of an infringement or misappropriation claim, AddShoppers may, at its sole option and expense, either (a) procure for Merchant the right to continue using the Software Services; (b) replace or modify the Software Services so that they become non-infringing or do not use the alleged misappropriated trade secrets; or (c) terminate Merchant’s right to use the infringing Software Services and give Merchant a refund or credit for the unused subscription fees actually paid by Merchant for the infringing components of the Software Services less an allowance for the period of time Merchant has used the Software Services during the Term. This Section states Merchant’s sole and exclusive remedies, and AddShoppers’s entire liability, for any and all infringement and misappropriation claims and actions.
5.6 AddShoppers’ Indemnity Exceptions. AddShoppers has no obligation with respect to any infringement or misappropriation claim based upon: (a) use of the Software Services in combination with Software Services, computer programs, applications, systems or equipment not supplied or directed by AddShoppers if such claim would have been avoided by not combining such use; (b) unauthorized modification of the Software Services if such claim would have been avoided by making no such modifications; (c) continued use of the Software Services after AddShoppers has notified Merchant in writing that such claim would have been avoided by ceasing such use; or (d) the use of the Software Services in violation of this Agreement, or in a manner for which it was not designed or contemplated, where such claim would have been avoided without such use.
5.7 AddShoppers’ Indemnity Conditions. AddShoppers’s obligations under this Section are conditioned on (a) Merchant giving prompt written notice of any action to AddShoppers; (b) Merchant giving AddShoppers sole and exclusive control of the defense of any action, including the choice and direction of any legal counsel, and all related settlement negotiations; and (c) Merchant providing AddShoppers (at AddShoppers’s expense for reasonable out-of-pocket expenses) assistance, information and authority to perform the above.
5.8 Merchant Indemnity. Merchant will indemnify and defend AddShoppers, and its directors, officers, shareholders and employees from and against any and all claims, losses, damages, expenses, suits, judgments, and costs, including reasonable legal and other professional fees and expenses, arising out of or relating to Merchant’s use of the Software Service, including breach of the terms and conditions of this Agreement, excluding those Claims for which AddShoppers is obligated to indemnify Merchant as set forth above.
6.1 Term. This Agreement shall commence on the Effective Date and continue for the Term specified in the Software Service addendum. In the event that the Agreement terminates as a result of there being no active Software Services Addenda, the Agreement will automatically become effective again in the event that a new Software Service addendum is entered into by and between the parties. Agreement will auto-renew at the end of the specified term.
6.2 Termination. In addition to any other remedies it may have, if either party breaches any of the terms or conditions of this Agreement and fails to cure such breach within fifteen (15) business days after written notice from the non-breaching party, the non-breaching party may terminate this Agreement or a specific Software Service addendum upon ten (10) days’ written notice. Notwithstanding the foregoing, AddShoppers may terminate this Agreement immediately if Merchant fails to pay any amount when due and such amount remains unpaid after ten (10) days’ written notice to Merchant. Upon termination of this Agreement or a Software Service addendum for Merchant’s breach, Merchant shall pay in full for the Software Services that have been rendered through the termination date plus all other charges that would have been due under the remaining term of each Software Service addendum.
6.3 Effect of Termination. Upon termination of this Agreement, Merchant and any Authorized Users must immediately stop using the Software Services, return or destroy all documentation, and certify such return or destruction in writing. Upon termination of this Agreement, Sections 3, 4, 5, 6.3 and 7 shall survive and remain in effect.
7. PRIVACY MATTERS
7.3 Updates. AddShoppers may from time to time require Merchant to provide specific additional notice mechanisms consistent with applicable laws or industry self-regulations for the purpose of providing end users with information and choices in connection with online data management and privacy.
8.1 Publicity. Merchant agrees that AddShoppers may include the name, logo, and success stories of Merchant or Authorized Users on AddShoppers’s website, press releases, promotional and sales literature, and advertising materials.
8.2 Independent Contractor. In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint ventures, or agents of one another in any respect.
8.3 Export and Other Laws. Merchant agrees to comply with all applicable laws, including without limitation, export and import regulations of the United States and other countries. Merchant further agrees not to export or re-export any software included with the Software Service, either directly or indirectly, without both parties’ written consent and any required license from the appropriate governmental agency.
8.4 Force Majeure. If performance of any obligation hereunder (except payment of monies due) is prevented, restricted or interfered with by any force majeure, including without limitation acts of God; fire or other casualty or accident; strikes or labor disputes; war or other violence; unavailability of or delays in procuring materials, power or supplies; any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental or intergovernmental agency or body; or any other act or condition whatsoever beyond the reasonable control of the party affected thereby, the party so affected will be excused from such performance during the time such prevention, restriction or interference persists.
8.5 Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other, such consent not to be unreasonably withheld or delayed, provided, however, that either party may assign or transfer its rights without such consent in the event of a transfer of the entire business unit, merger, sale, acquisition, formation of a partnership, or joint venture so long as the successor entity assumes all of the obligations of the assignor and the other party receives notice of the transaction and the successor entity prior to the consummation of the transaction. Any prohibited assignment is void. This Agreement will inure to the benefit of the parties’ respective permitted successors and assigns.
8.6 Notice. Any notice to be given by one party to the other under this Agreement will be in writing and may be sent by trackable express courier delivery service (delivery charge prepaid), to the applicable address set forth in the opening paragraph of this Agreement (or otherwise provided by notice under this Section) and will be deemed to have been served on actual delivery; or by facsimile transmission at the number set forth below, and notice will be deemed to have been served when confirmation of its transmission has been recorded by the sender’s fax machine.
If to AddShoppers:
222 S. Church St. Suite 203
Charlotte, NC 28202
If to Merchant:
(PROVIDED IN CONTRACT)
8.7 Non-Solicitation of Employees. During the Term of this Agreement and for a period of twelve (12) months after termination, neither party will, either directly or indirectly, hire, employ, retain, offer employment to or solicit employment of, nor attempt to do any of the foregoing regarding any employee of the other party or any affiliate of the other party, nor induce, cause, or persuade, nor attempt to do any of the foregoing regarding any such employee to terminate such person’s employment nor to violate any term of such person’s employment with the other party. For each breach by either party of the foregoing restrictions, Breaching party will pay non-breaching party an amount equal to any recruitment or referral fees originally paid for such employee and the base salary and bonus earned by such employee during the preceding twelve (12) months.
8.8 Insurance. AddShoppers will purchase and maintain insurance to reasonably protect AddShoppers and Merchant from the losses and claims that may arise out of or result from AddShoppers’s obligations under this Agreement, including at a minimum: (a) $1,000,000 in commercial general liability coverage (covering bodily injury and tangible property damage liability); (b) $1,000,000 in professional liability/errors and omissions liability coverage; and (c) standard workers’ compensation, as may be required by law. Upon request of Merchant, AddShoppers will provide evidence of this insurance.
Delivery of a copy of this Agreement, any Addendum, notice, or such other document bearing an original signature by facsimile transmission, by electronic mail in “portable document format” (“pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
8.9 Miscellaneous. This Agreement shall be governed by the laws of the state of North Carolina (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). This Agreement, including the exhibits attached hereto, constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. Any amendments to this Agreement shall only be valid if in writing and signed by an executive of both parties. Nothing contained in any purchase order or other document shall in any way modify this Agreement or add any additional terms or conditions. If any provisions of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. This Agreement may be executed in two counterparts and facsimile signatures shall be binding.