MSYD Master Service Agreement
This MSYD Master Service Agreement (the “Agreement”) is by and between MSYD Inc. (“MSYD”) and the entity or individual (“Company”) identified in the order executed by MSYD and Company or identified in connection with the MSYD Account registration process (in each case, an “ Order”), and governs Company’s use, and MSYD’s provision, of the MSYD Service. Each Order, and any exhibit to an Order, is subject to this Agreement and is incorporated herein by reference. If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind such entity to all of the terms and conditions of this Agreement.
- The MSYD Service. The “MSYD Service” means those online services that Company has ordered from MSYD, including Profolio, VisualCMP and/or such other online services as MSYD makes available to Company from time to time. The various services comprising the MSYD Service enable Company to upload, transcode, manage and distribute Company’s Content online. “Content” means all content, data, images, video, templates or information in any form that is uploaded to or made available in Company’s Account(s) by Company or on Company’s behalf. The MSYD Service does not include Company’s Content or the Content of any other MSYD customer. By using the online, user interfaces or APIs (collectively, the “U/I”) provided as part of the MSYD Service, Company may make choices about its Content, including, depending on the particular MSYD Service being used by Company, the presentation, management and distribution of Content. Company may change its selections as permitted by the MSYD Service. In all cases, however, Company’s most recent selections in the U/I, as reflected in MSYD’s database, shall be conclusive in the event of any dispute concerning Company’s selections.
- Access to the MSYD Service; Free Accounts; Beta Services.
- Access to the MSYD Service. Access to Company’s MSYD Service Account(s) shall be enabled by use of username(s) and password(s) (“Credentials”) selected by Company. An “Account” is a single point of entry via the U/I through which Company accesses and uses the MSYD Service. Except where MSYD has actual notice of loss, theft or unauthorized use of Company’s Credentials, (i) Company is responsible for all activity occurring in Company’s Account(s) and (ii) MSYD shall have the right, without further inquiry, to rely on the provision of Company’s Credentials as sufficient to authenticate Company’s use of the MSYD Service.
- Free Accounts. MSYD may from time to time offer free MSYD Service Accounts, such as trial Accounts. Unless otherwise specified during the Account registration process, the terms and conditions of this Agreement shall govern the use of such free Accounts. MSYD may terminate any free Account at any time without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE MSYD SERVICE IS PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH FREE ACCOUNTS.
- Beta Services. MSYD may from time to time offer products or services that are not generally available to all MSYD customers (“Beta Services”). Unless otherwise indicated, all Beta Services will be offered at no cost and will be identified as “beta” or in a manner that indicates that the Beta Service is in limited release or pre-release. Such Beta Services are still in development and MSYD may change aspects of the Beta Services at any time, including prior to general release. Company will not be obligated or required to use any Beta Services. MSYD may cease offering any Beta Services, or cease offering such services at no cost, at any time and without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BETA SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.
- Company’s Obligations.
- Restrictions on Use. Company covenants that it will not (i) use the MSYD Service in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which is intended to harm MSYD or the MSYD Service. MSYD will not review or screen Content on a regular basis for compliance with this Agreement or applicable law, and MSYD shall have no obligation to do so, provided, however, that in addition to any other rights MSYD may have, MSYD reserves the right to suspend Company’s access to and/or use of the MSYD Service, or any particular Content, to the extent that MSYD reasonably determines, in good faith, that such suspension is necessary to comply with applicable law (including without limitation a take-down notice under the Digital Millennium Copyright Act) or to prevent significant harm to any end user or the MSYD Service; provided further, however, that in such event, MSYD shall use commercially reasonable efforts to suspend only that portion of the MSYD Service, or the particular Content, as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
- Obligation to Pay. Company shall pay MSYD the fees set forth in each Order in accordance with the payment terms set forth in this Agreement and the Order. Company shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Company’s Orders (except for taxes on MSYD’s income). All payments shall be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Company fails to pay applicable fees when payment is due, then in addition to any other rights MSYD may have, MSYD shall have the right to suspend delivery of all or a portion of the MSYD Service to Company, provided that MSYD has supplied Company prior notice and 5 days’ opportunity to cure. If MSYD pursues collection efforts against Company due to Company’s failure to pay fees due under this Agreement, Company shall pay MSYD’s reasonable costs of collection, including any attorneys’ fees related thereto.
- MSYD’s Obligations. MSYD agrees to (a) make the MSYD Service available to Company in accordance with this Agreement, including any current Order; and (b) perform any other obligations expressly identified in any current Order.
- Term of this Agreement. This Agreement commences on the Effective Date and shall remain in effect until all of Company’s Orders have expired or have been terminated in accordance with the terms of this Agreement (the “Term”). The “Effective Date” of this Agreement shall be the date specified in Company’s initial Order or, if such Order was submitted online, the date Company submits the online Order. If Company is using the MSYD Service pursuant to a trial Account and does not submit an Order prior to the conclusion of the trial period, this Agreement will terminate at the end of the trial period or, if later, the date MSYD closes such trial Account.
- Term of Orders. The initial term of each Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Company submits the online Order (the “Order Effective Date”). Unless earlier terminated in accordance with this Agreement, each Order shall remain in effect for 1 month from the Order Effective Date (unless a different term is set forth in Company’s Order) (“Initial Term”), following which the Order shall automatically renew for successive 1-month periods on the first day following the end of the Initial Term (each, a “Renewal Term”) unless either party hereto has provided notice to the other of non-renewal at least 15 days in advance of the end of the Initial Term or, if applicable, the current Renewal Term. Notwithstanding the prior sentence, all Orders for free Accounts, unless earlier terminated by either Company or MSYD, shall remain in effect for the period of time indicated while the Order was submitted.
- Termination. Unless otherwise prohibited by law, either party may terminate this Agreement, including any outstanding Orders: (a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws; or (b) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 30 days after written notice identifying the matter constituting the material breach. In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason, all current Orders shall terminate and, unless such termination resulted from a material, uncured breach of this Agreement by MSYD, all fees and expenses payable under any such Orders shall become immediately due and payable.
- Title. As between the parties, MSYD owns all right, title and interest in and to the MSYD Service. This Agreement does not convey to Company any ownership interest in or to the MSYD Service, but only a limited license to use the MSYD Service that is revocable as set forth in this Agreement. As between the parties, Company owns all right, title and interest in and to the Content. This Agreement does not convey to MSYD any ownership interest in or to the Content, but only a limited license to the Content that is revocable as set forth in this Agreement.
- License to Use the MSYD Service. MSYD hereby grants Company a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 17(b)), non-exclusive, worldwide license to use the applicable MSYD Service for which Company has submitted an Order or registered online. All rights not expressly granted to Company are reserved by MSYD. Except as expressly permitted by MSYD, Company shall not: (i) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the MSYD Service or any part thereof in any way; or (ii) modify or make derivative works based upon the MSYD Service or reverse engineer, decompile or disassemble the MSYD Service.
- License to Content. Company hereby grants MSYD a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 17(b)), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content as are necessary for MSYD to provide the MSYD Service in accordance with this Agreement and Company’s selections made through the U/I. All rights not expressly granted to MSYD are reserved by Company.
- License to Feedback, Suggestions or Recommendations. Company hereby grants to MSYD an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the MSYD Service any feedback, suggestions and/or recommendations provided to MSYD by Company regarding the MSYD Service.
- Representations and Warranties.
- The MSYD Service. MSYD represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the MSYD Service, as used by Company in accordance with this Agreement, does not, and shall not, infringe, violate or misappropriate any third party’s rights.
- Content. Company represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Content, and its use through the MSYD Service, as enabled by Company, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights.
- Indemnification. Each party agrees to indemnify the other party and such other party’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) arising out of a claim, action or demand brought by a third party for a breach of any representation, warranty or covenant made by the indemnifying party in this Agreement (each a “Claim”) upon the entry of a full and final judgment of such Claim against the indemnified party.
The indemnification obligations in this section are conditioned upon: (a) written notice by the indemnified party to the indemnifying party within 30 days of the indemnified party’s receipt of any Claim for which indemnification is sought; (b) counsel for the indemnified party reasonably acceptable to the indemnifying party; (c) approval by the indemnifying party of any settlement of the Claim for which indemnification is sought; and (d) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request. Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.
- DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MSYD MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO COMPANY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE MSYD SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE MSYD SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY COMPANY FROM MSYD SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- EXCLUSIONS/LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE TOTAL FEES PAID AND/OR PAYABLE FOR THE APPLICABLE ORDER FOR THE FULL INITIAL TERM OR RENEWAL TERM IN WHICH THE INCIDENT GIVING RISE TO THE CLAIM HEREUNDER AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING SENTENCE, IF COMPANY IS USING THE MSYD SERVICE VIA A FREE ACCOUNT, COMPANY’S MAXIMUM LIABILITY TO MSYD IN CONNECTION WITH SUCH FREE ACCOUNT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE DAMAGES INCURRED BY MSYD.
- Third-Party Services. MSYD may, from time to time, inform its customers of third-party services that can be used in connection with the MSYD Service. Company’s use of any third-party service in connection with the MSYD Service, and any terms, conditions, representations and/or warranties associated with such use, are solely between Company and such third-party service provider. MSYD makes no representation or warranty with regard to any such third-party service, even if such provider is certified by MSYD or selected as a premier provider (or similar designation) by MSYD, and MSYD shall not be responsible to Company in any manner for any such third-party service. MSYD does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.
- Confidentiality. Each party agrees not to disclose the other party’s Confidential Information without the other party’s prior written consent. “Confidential Information” includes, without limitation: (a) all intellectual property; (b) financial and business information (including pricing); and (c) any other information designated in writing as “Confidential.” Confidential Information does not include (v) Content; (w) information that has become publicly known through no breach by Company or MSYD of these confidentiality obligations; (x) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; (y) information required to be disclosed by law; or (z) the fact that Company is a customer of MSYD.
- Identification Rights. MSYD shall have the right to identify Company as a customer, and to use Company’s logo in MSYD’s general marketing materials, and Company shall have the right to identify MSYD as the provider of the MSYD Service, and to use MSYD’s logo in connection with Company’s use of the MSYD Service.
- Notices. All notices under this Agreement must be in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Company, to the contact identified in Company’s most recent Order and, if to MSYD, to MSYD Inc., 5236 Colodny Dr #207 Agoura Hills, CA 91301, attn: General Counsel or [email protected]
- General. (a) Independent Contractors: MSYD and Company are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship; (b) Assignment: Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other, except that each party may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; (c) Governing Law: This Agreement shall be governed by the laws of the State of California applicable to contracts entered into and wholly to be performed therein; (d) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof shall be brought exclusively in the Federal or state courts in the State of California and the parties hereby waive any objection thereto; (e) Jury Trial Waiver: Company and MSYD each waive any right to a jury trial in connection with any and all disputes arising out of or related to this Agreement; (f) Limitation on Claims: Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Company’s use of the MSYD Service must be filed within 1 year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or such claim or cause of action shall be forever barred; (g) Export Compliance: Each party shall comply with all applicable United States and international export control laws and regulations. Company specifically represents that (i) it is not located in any country or jurisdiction that is subject to U.S. economic sanctions, nor is it acting on behalf of the government of any such country and (ii) it is not identified on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals List, as amended from time to time, nor is it owned or controlled by any such entity; (h) Effect of Waivers: The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision; (i) Survival: All terms of this Agreement which by their nature extend beyond the termination of this Agreement remain in effect until fulfilled and apply to respective successors and assigns; (j) Counterparts; Delivery; Acceptance: This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party, or upon Company’s submission of an online Order (whichever occurs first). Delivery by facsimile or e-mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof; (k) Integration; Amendment: This Agreement, including any Orders entered into hereunder, constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties; (l) No Reliance: No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement; (m) Severability: If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision; (n) Government Entities: The MSYD Service is licensed to the U.S. government or any entity acting on its behalf as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the MSYD Service; (o) Purchase Orders/Instruments: Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties (“Instruments”) shall not add to, supersede or modify, the terms of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement, such term of the Instrument shall be void and without effect; and (p) Foreign Language Translation of Agreement: For Company’s convenience only, MSYD may provide Company with a non-English translation of this Agreement. Any such non-English language version of this Agreement is for reference purposes. Company acknowledges and agrees that the English language version of this Agreement shall, in all instances, govern the parties’ relationship.
- Additional Terms for Credit Card Orders.
If Company is purchasing Profolio or VisualCMP with a credit card, additional terms apply. Credit Card Terms applicable to Profolio credit card orders can be found at http://www.profolio.com/m/profolio-cct. Credit Card Terms applicable to VisualCMP credit card orders can be found at http://www.profolio.com/m/visualcmp-cct.