Crownpeak Master Services Agreement
This Master Services Agreement (the “MSA”) between the Crownpeak legal entity (“Crownpeak”) and the customer legal entity (“Customer”) each as identified on the Order Form to which this MSA is attached. This MSA, and any exhibits, schedules and/or statements of work agreed between the Parties, governs Customer’s use of the software and/or services set out on the Order Form (collectively, the “Services”).
1. Right to Use the Services
Crownpeak grants to Customer, during the Term, a nontransferable, non-exclusive, worldwide right to use the Services specified in the Order Form for Customer's internal business operations and in accordance with the Agreement. Customer will receive a user ID and a password for each of its users agreed in the applicable Order Form. Customisation, set up, configuration and training are not included in the provision of the Services unless otherwise agreed in the Order Form.
2. Restrictions on the Use of the Services
2.1 Customer shall not, directly or indirectly:
(a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any Crownpeak software, documentation or data related to, provided with, or used to provide the Services (collectively, the “Software”);
(b) modify, translate, or create derivative works based on the Services or Software, or create links to or “frame” or “mirror” any content provided in the Services;
(c) copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software;
(d) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(e) access the Services for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking purposes;
(f) use or access the Services to build or support products or services competitive to Crownpeak;
(g) overburden, impair or otherwise interfere with Crownpeak's provision of the Services or the normal operation of the Software;
(h) exceed any Fair Use Policy, to the extent applicable and referenced in the Order Form.
2.2 Customer agrees that it will use the Services only in compliance with the Agreement and in accordance with all applicable laws and regulations, including but not limited to policies and laws related to spamming, privacy, data protection, intellectual property, consumer and child protection, obscenity and defamation (“Applicable Laws”).
3.1. The Services will be provided in accordance with Service Level Agreement (“SLA”) set out in the Order Form.
3.2. Crownpeak may suspend or limit use of the Services if continued use may result in damage to Customer, third parties or the Services. Customer will be notified promptly of any such suspension or limitation.
3.3. Customer is responsible for its IT network and connections and any issues arising therefrom (e.g. bandwidth issues, excessive latency, network outages) or any other issue outside Crownpeak’s reasonable control.
4. Fees and Payment
4.1. Fees. Customer agrees to pay the fees for the Services (including any overages) specified on the Order Form, by the date specified therein or within thirty (30) days of the date on the applicable invoice. Fees paid are not refundable. Fees are exclusive of all taxes, levies, or duties, for which Customer is responsible (except for taxes based on Crownpeak's income) and which may be added to invoices submitted by Crownpeak. Fees will be paid in the currency set out on the Order Form or in U.S. Dollars, if no currency is specified.
4.2. Overages. Fees for any overages will be invoiced for the remainder of the Term, in the month following the overage. Overage rates are specified in the applicable Order Form.
4.3. Late Payment. If any invoiced amount is not received by Crownpeak by the due date, then without limiting our rights or remedies, Customer shall pay late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher.
5. Customer Data and Data Protection
5.1. Customer retains exclusive ownership of all data, information or material that Customer submits or provides in the course of using the Services (“Customer Data”).
5.2. Customer shall have sole responsibility for: (i) the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use Customer Data; and (ii) maintaining the security of its network, hardware and its account information (including but not limited to administrative and Authorised User passwords). Customer also agrees to make reasonable efforts to prevent unauthorized access to Customer Data, Customer’s network and systems, the Services. Customer is solely responsible for ensuring that any data it collects, stores, transmits or receives complies with Applicable Law and does not violate or infringe any intellectual property or other rights of any third party.
5.3. Customer grants Crownpeak and its affiliates and subcontractors a non-exclusive right to process Customer Data in order to provide and support the Services. Customer Data may be transferred or stored/hosted outside of the country where Customer and its Authorised Users are located. Where required by Applicable Laws, in processing Customer Data, the Parties agree to comply with the Crownpeak Data Processing Agreement (“DPA”) set out in the Order Form.
6. Intellectual Property Rights
6.1. Crownpeak and its affiliates or licensors own all intellectual property rights in and related to the Services, Software, Product Schedules and other documentation, including all derivatives or improvements thereof and any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any other party. Any intellectual rights not expressly granted herein to Customer are reserved by Crownpeak.
6.2. Crownpeak acknowledges that Customer retains sole and exclusive ownership of Customer Data, and Crownpeak does not acquire any interest therein except for the limited right above.
7.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose sensitive information relating to the Disclosing Party's business. “Confidential Information” means: all information disclosed by the Disclosing Party to the Receiving Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Disclosing Party remains the owner of the Confidential Information which it discloses. Customer’s Confidential Information shall include the Customer Data; Crownpeak’s Confidential Information shall include the Services and Software, the terms and conditions of this MSA, all Order Forms and any pricing information, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes.
7.2. The Receiving Party agrees: (i) to protect the Confidential Information it receives to the same extent it protects its own Confidential Information, and in no event using less than reasonable care; (ii) not to divulge such Confidential Information to any person except those who have a need to know for the purpose of its use of the Services, but in no event to any third party.
7.3. The obligations in this Section will cease five (5) years following disclosure of any Confidential Information (except with respect to trade secrets).
7.4. Confidential Information does not include information:
(a) which is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party;
(b) was in its possession or known by it prior to receipt from the Disclosing Party;
(c) was rightfully disclosed to it by a third party; or
(d) was independently developed by it without use of any Confidential Information of the Disclosing Party.
7.5. A Receiving Party may disclose Confidential Information when required by law, provided that, if legally permitted, it shall: promptly notify the Disclosing Party; take reasonable precaution to disclose the minimum amount necessary; and reasonably cooperate with the Disclosing Party’s efforts to protect the confidentiality of such Confidential Information.
8. Anonymous Statistical Information
Notwithstanding anything else to the contrary herein, Crownpeak may compile statistical and performance information related to the provision and use of the Services and derived from Customer Data. Provided such information is aggregated with that of other customers, is wholly anonymous and does not identify or incorporate specific Customer Data, Crownpeak may make it publicly available, and use it for the purposes of: resource planning; performance improvement and product development; benchmarking; training; and security monitoring.
9. Term and Termination
9.1. As used in this MSA, “Term” means the Initial Term and each Renewal Term, as applicable in the context, of Customer’s subscription to the Services. This MSA shall continue in effect from the Effective Date defined on the Order Form until the end of the Term.
9.2. The “Initial Term” is the period specified on Customer’s first Order Form for the Services or, if blank,
thirty-six (36) months. At the end of the Initial Term, Customer subscriptions in the Order Form shall renew automatically for a further thirty-six (36) months (“Renewal Term”), unless either party gives the other written notice of termination at least sixty (60) days prior to the end of the Initial Term or each Renewal Term, as applicable.
9.3. In the event of any material breach (which shall include non-payment) of the MSA by either party, the non-breaching party shall have the right to terminate the MSA if such breach has not been cured within thirty (30) days of written notice from the non-breaching party to the breaching party, specifying the breach in detail. Crownpeak immediately may suspend Customer's passwords, accounts, and access to the Services during such cure period. Any suspension or termination by Crownpeak of the Service under the preceding sentence shall not excuse Customer from its obligation to pay all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for the remainder of the Term, plus all applicable taxes. Upon any termination of the MSA, Customer's right to access and use the Services shall terminate. Reactivation of any suspended or terminated account will be subject to applicable fees.
9.4. If this MSA terminates, Customer must retrieve all Customer Data prior to the date of termination. Except as required by statute, Customer agrees and acknowledges that Crownpeak has no obligation to retain Customer Data beyond termination and it may be irretrievably deleted immediately following the date of termination or if the payment of fees for the Services are late by thirty (30) days or more.
10. Crownpeak Warranties
10.1. Limited warranty. Crownpeak warrants that the Services will comply with Applicable Laws and meet the terms of the SLA during the Term. Your only remedies for breach of the SLA are those in the SLA.
10.2. Limited warranty exclusions. This limited warranty does not cover:
(a) problems caused by misuse of the Services or beyond the reasonable control of Crownpeak;
(b) problems caused by any failure to meet minimum system requirements; and
(c) beta services or free offerings.
10.3. DISCLAIMER. Other than the limited warranty above, Crownpeak disclaims all warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. Any warranties, guarantees, or conditions not able to be disclaimed by Applicable Law are valid for one year from the Effective Date.
10.4. CUSTOMER ACKNOWLEDGES THAT: (I) ANY PRIVACY MANAGEMENT SERVICES ORDERED DO NOT GUARANTEE LEGAL COMPLIANCE BUT ASSIST IT DELIVER NOTICES ABOUT THE USE OF TRACKING TECHNOLOGIES AND PROVIDE A SIMPLE MEANS TO EXERCISE CHOICE ABOUT SUCH TRACKING; (II) CROWNPEAK DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
11. Defense of Claims
11.1. Crownpeak will defend and indemnify Customer and its employees, officers, and directors (“Customer Group”) against any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights; in the event of such a claim, Crownpeak will indemnify Customer Group against all damages finally awarded against Customer and any costs (including reasonable attorneys' fees) incurred in connection with such a claim.
11.2. For any claim covered by Section 11.1, Crownpeak will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace or modify the alleged infringing portion of the Services with a non-infringing alternative, with no material decrease in functionality; or (iii) terminate the allegedly infringing portion of the Services or this Agreement.
11.3. Customer will defend and indemnify Crownpeak and its affiliates and subcontractors (“Crownpeak Group”) against any third-party claim related to Customer Data and Customer’s use of the Services; in the event of such a claim, Customer will indemnify Crownpeak Group against all damages finally awarded against Crownpeak Group and any costs (including reasonable attorneys' fees) incurred in connection with such a claim.
11.4. No party will have obligations or liability under Section 11 arising from infringement caused by modification, misuse or combinations of the Services or Customer Data, as applicable, with any other product, service, software, data, content, or method. In addition, Crownpeak will have no obligations or liability arising from Customer’s or any end user’s use of the Services after notification to discontinue such use.
11.5. The remedies provided in this Section are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services or by Customer Content.
11.6. The obligations under this Section 11 will apply only if the party seeking defense, payment or indemnity from another party: (a) gives that party prompt notice of the claim; (b) permits that party to control the defense and settlement of the claim; and (c) reasonably cooperates with that party (at that party’s expense) in the defense and settlement of the claim. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
12. Limitation of Liability
EXCEPT FOR A BREACH OF THE RESTRICTIONS ON USE OR A PARTY’S INDEMNIFICATION OBLIGATIONS OR CLAIMS RELATING TO DEATH OR PERSONAL INJURY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE UNDER THE AGREEMENT, PURSUANT TO ANY CLAIM IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY FOR: (A) ANY LOSS OF PROFITS OR LOSS OF USE, OR ANY INDIRECT, UNFORESEEABLE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (B) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO CROWNPEAK UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT OR CIRCUMSTANCES THAT GAVE RISE TO THE LIABILITY.
13.1. Crownpeak may give notices applicable to Crownpeak's general customer base, including Customer, by posting to its service portal or Community.
13.2. Crownpeak may give notices specific to Customer by: (i) electronic mail to Customer's e-mail address on record; or (ii) by written communication sent by first class mail or pre-paid post to Customer's address on record.
13.3. Customer may give notices to Crownpeak by first class mail or pre-paid post to: Crownpeak, 707 17th Street, Floor 38, Denver, Colorado 80202 U.S.A. CC: firstname.lastname@example.org.
14. Force Majeure
Neither party shall be responsible for failure or delay of performance (except payment obligations) if caused any event outside their reasonable control. If such event continues for more than thirty (30) days, the party unable to perform may cancel the MSA upon written notice.
15. Governing Law and Jurisdiction
If an Order Form is executed by a Customer based in the USA or Canada, the Agreement is governed by the laws of New York, whose courts have exclusive jurisdiction to settle any dispute except insofar as any application for injunction. If the Order Form is executed by a Customer based anywhere other than the USA or Canada, the Agreement is governed by the laws of England & Wales, whose courts have exclusive jurisdiction to settle any dispute except insofar as any application for injunction. The Parties agree that any other national or international regime governing choice of law will not apply to the Agreement.
16. Entire Agreement
The Agreement is made up of this MSA, the applicable Order Form(s) and documents referenced therein, and represents the Parties' entire understanding relating to the Services, and supersedes any prior or contemporaneous communications. The terms and conditions of the Agreement may be amended by written agreement of the parties, executed by an authorized signatory of each Party. From time to time as technology and the law progresses and changes, at its sole discretion, Crownpeak may modify the Services and/or amend its documentation, if any such amendment represents a material degradation in the Services received by Customer, then within 30 days it may by written notice to Crownpeak, terminate the specific element of the Services affected.
17.1. The exchange of a fully executed Order Form (by electronic signature or otherwise) shall be sufficient to bind the parties to the terms and conditions of the Agreement.
17.2. If any provision of the MSA is held by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be deemed modified to the extent necessary to make it valid and enforceable.
17.3. No joint venture, partnership, employment, or agency relationship exists between Crownpeak and Customer as a result of the MSA or use of the Service. Neither Party shall directly solicit the personnel of the other Party.
17.4. Neither party may assign the MSA without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company.
17.5. The failure of either party to enforce any right or provision in the MSA shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
17.6. Except for actions for nonpayment or breach of Crownpeak's proprietary rights, no action, regardless of form, arising out of or relating to the MSA may be brought by either party more than two (2) years after the cause of action has accrued.
17.7. All sections of this MSA that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
17.8. No person other than a party to the Agreement shall have any rights to enforce any term of the Agreement. Crownpeak may refer to Customer as a Crownpeak customer on Crownpeak’s website and in sales presentations and may use Customer’s trademarks for such purposes.