This Service Subscription Agreement (“Agreement”) is by and between Masterswitch 3 Ltd and its Affiliates (collectively, “MS3”) and the subscriber set forth on the applicable Service Order (“Subscriber”). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of MS3’s web-based and community services. The parties agree as follows:
- “Account” means a unique account created for Subscriber to access the Subscription Services.
- “Add-On Services” means additional services that may be added to the Subscription Services.
- “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
- “Effective Date” means the date the Service Order is executed by both parties.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world, in each case, for their full term and together with any renewals or extensions.
- “Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services specified in one or more applicable Service Orders.
- “Sensitive Information” means any passwords, credit card or debit card information, personal financial account information, personal health information, social security numbers, passport numbers, driver’s license numbers, employment records, physical or mental health condition or information, any information that would classify as “Special Categories of Information” under EU data protection laws, or any other information that would be subject to Health Insurance Portability and Accountability Act (HIPAA), the Payment Card Industry Data Security Standards (PCI DSS), or other laws, regulations, or industry standards designed to protect similar information.
- “Services” means, collectively, Subscription Services, Add-On Services and Community Services.
- “Service Order” means purchase of a Subscription Service or Add-On Service.
- “Sites” means https://intelligentcontent.marketing.
- “Subscriber Data” means the data inputted to the Services by or on behalf of the Subscriber for the purpose of using the Services or facilitating Subscriber’s use of the Services.
- “Subscription Services” means the subscription services provided by MS3 to Subscriber, as identified in one or more Service Orders.
- “Subscription Term” means the Subscription Term set forth in the applicable Service Order for the Services.
2. USE OF THE SERVICES
- Access and Users. Subscriber is responsible for managing access to its Account and for all information, data, text, video. Audio messages or other materials that Subscriber posts or otherwise transmits via the Services. Subscriber ensures that any person or entity using its Account comply with the terms of this Agreement, and that Subscriber remains responsible for any action taken using its Account. If the Scope Limitations include limits on the number of users, Subscriber will ensure that each user is issued its own credentials and that credentials are not shared by more than one user. Subscriber hereby represents and warrants that any Subscriber Data has not been collected, stored, and transferred to MS3 in violation of any law, regulation, or contractual obligation applicable to Subscriber. Subscriber shall have sole responsibility for the accuracy, quality, and legality of the Subscriber Data and the means by which it acquired the Subscriber Data. Subscriber shall be responsible for establishing the lawfulness of processing under Article 6 of the General Data Protection Regulation 2016/679 and complying with all applicable laws related to privacy and data protection in respect of its use of the Services, its processing of personal data, and any processing instructions it issues to MS3.
- Compliance with Laws. Subscriber will use the Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party or violate any third party’s privacy rights.
- Prohibition on Sensitive Information. Subscriber represents and warrants that neither Subscriber nor Subscriber’s users will transmit, upload, collect, manage, or otherwise process any Sensitive Information through the Services. Subscriber acknowledges and agrees that MS3 will not be liable for any damages that may result from Subscriber’s use of the Services in transmitting, uploading, collecting, managing, or otherwise processing any Sensitive Information.
- Protection Against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Services and immediately notify MS3 in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by MS3 to prevent or terminate unauthorized use of the Services.
- Right to Suspend Services. MS3 may suspend Subscriber’s use of the Services if MS3 reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of the Services or to prevent an ongoing violation of any applicable laws or regulations. MS3 will use commercially reasonable efforts to notify Subscriber prior to any such suspension and will only suspend the Services to the extent necessary to prevent such unauthorized use or violation. In addition, if Subscriber fails to timely pay any fees in accordance with the terms of this Agreement and/or any Service Order, MS3 may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
- Reservation of Rights. MS3 grants to Subscriber a limited right to use the Services under this Agreement. Subscriber will not have any rights to the Services except as expressly granted in this Agreement. MS3 reserves to itself and its licensors all rights to the Services not expressly granted to Subscriber in accordance with this Agreement. MS3 and its licensors retain all Intellectual Property Rights in and to the Services not otherwise manifestly vesting in third parties.
- Statistical Data. Subscriber acknowledges and agrees that MS3 shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally and non-Subscriber identifiable data or information resulting from Subscriber’s use of the Services (“Statistical Data”). Statistical Data may be collected by MS3 for any lawful business purpose without a duty of accounting to Subscriber, provided that the Statistical Data is used only in an anonymized, deidentified, or aggregated form, without specifically identifying the source of the Statistical Data. On creation, MS3 shall own all Intellectual Property Rights in the Statistical Data.
- Feedback. MS3 shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback or Subscriber generated content MS3 receives from Subscriber.
3. THIRD PARTY SERVICES
- External Sites. The Services may contain links to, or otherwise may allow Subscriber to connect to and use, certain third party products, service or software under separate terms and conditions (collectively, “Third-party Service”) in conjunction with the Services, including certain social media networks and other integration partners. If Subscriber decides to access and use such Third-party Service, Subscriber acknowledges that its use of said Third-party Service is governed solely by the terms and conditions of such Third-party Service (including, but not limited to, the Twitter Terms of Service located at twitter.com/tos and the YouTube Terms of Service located at www.youtube.com/t/terms), and MS3 does not endorse, is not responsible for, and makes no representations as to such Third-party Service, its content or the manner in which such Third-party Service handles Subscriber’s data. MS3 is not liable for any damage or loss arising from or in connection with Subscriber’s access or use of any such Third-party Service, or Subscriber’s reliance on the privacy practices or other policies of such Third-party Service. Subscriber acknowledges that MS3 does not control the features and functionality of any Third-party Service and that such Third-party Service may change its features and functionality without any notice to MS3. MS3 shall not be liable to Subscriber for any refunds or any damage or loss arising from or in connection with any changes made by a Third-party Service or any resulting changes to the Services.
- Integration. The Services may contain features that enable various Third-party Services (such as a social media service like Facebook and Twitter) to be directly integrated into Subscriber’s Account. To take advantage of these features, Subscriber will be required to register for or log into such Third-party Service on their respective websites. By accessing/enabling a Third-party Service within the Services, Subscriber is allowing MS3 to pass Subscriber’s log-in information to the Third-party Service for this purpose.
4. FEES AND PAYMENT
- Fees. Subscriber will pay MS3 the fees specified in each applicable Service Order. If Subscriber orders additional Services or changes the Services it is receiving, the fees for such additional or changed services will be charged at the then-current pricing for such additional or changed services and commence on the activation date listed in the Service Order. Any resulting change in fees shall be reflected in future invoices. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. Except as otherwise provided in this Agreement, fees are non-refundable. There are no refunds or credits for partial months of Services, plan downgrades, or refunds for unused time if Subscriber closes its account before the end of the term of any Service Order. Unless otherwise specified in the Service Order, the Services and any Add-On Services purchased by Subscriber during the Subscription Term, will automatically renew for additional periods equal to the length of the Subscription Term unless either party provides written notice to the other party at least thirty (30) days prior to the expiration of the Subscription Term. MS3 reserves the right to increase fees upon renewal; provided, however, that such increase shall not exceed 7% over the fees related to the immediately preceding Subscription Term.
- Payment Terms. Unless otherwise specified in the applicable Service Order, Subscriber will pay all amounts upon presentation of the applicable request for payment.
- Taxes. Other than net income taxes imposed on MS3, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from its purchase or use of the Services. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Order or invoice.
5. TERM AND TERMINATION
- Agreement Term. This Agreement commences on the Effective Date and will remain in effect while any Service Orders are outstanding.
- Service Order Term. Each Service Order will be valid for the term specified on such Service Order unless the Service Order is terminated earlier in accordance with the terms of this Agreement.
- 30 Day Money Back Guarantee. Either party may terminate a Service Order or this Agreement within 30 days of payment and Subscriber can receive the entire fee paid unconditionally with no questions asked.
- MS3 shall have the right to terminate a Service Order or this Agreement at any time if MS3 reasonably determines that Subscriber is acting or has acted in a way that could present substantial reputational harm to MS3 or its current or prospective partners or customers.
- Post-Termination Obligations. If this Agreement or a Service Order is terminated for any reason MS3 shall have the right to remove Subscriber’s account information and account settings and Subscriber will not be able to recover this data or content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions). All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) will remain in effect.
- Definition of Confidential Information. For the purpose of this Agreement, “Confidential Information” means non-public information of MS3 or Subscriber disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which (i) a reasonable person would consider confidential or (ii) is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of this Agreement by the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
- Protection of Confidential Information. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations hereunder and who agreed to be bound by these obligations of confidentiality and non-disclosure.
7. WARRANTIES AND DISCLAIMER
- Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
- Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, MS3 MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. MS3 EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS. MS3 RELIES ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES OR THIRD PARTY DATA WILL ALWAYS BE AVAILABLE. MS3 DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICES OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITES NOT WITHIN MS3’S REASONABLE CONTROL.
8. INTELLECTUAL PROPERTY INFRINGEMENT
- Indemnification. Subscriber will, at its expense, defend MS3 or MS3’s officers, directors, employees, agents, permitted successors and assigns from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Services infringes or misappropriates any Intellectual Property Rights of any third party, and indemnify MS3 from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim.
- Limited Remedy. In any event, MS3’s sole and exclusive liability under this section 8 is delimited to the cost of the service fee paid to MS3 by the Subscriber for any actual or alleged infringement or misappropriation of any third party Intellectual Property Right by the Services.
9. SUBSCRIBER INDEMNIFICATION
- Subscriber will defend MS3 and its officers, directors, employees, agents, successors and assigns from any actual or threatened third party Claim arising out of or based upon (a) Subscriber’s breach of any of its obligations under this Agreement, (b) Subscriber’s use of a Third-party Service, or (c) any of the exclusions stated in this Agreement, and indemnify MS3 from all damages, costs, and attorneys’ fees finally awarded in any such Claim or all amounts that Subscriber agrees to pay to any third party to settle any such Claim. Subscriber’s obligation under this section is contingent on: (a) MS3 giving Subscriber prompt written notice of the Claim; (b) MS3 granting Subscriber full and complete control over the defence and settlement of the Claim, provided that Subscriber may not settle or defend any Claim unless Subscriber unconditionally releases MS3 of all liability and such settlement does not affect MS3’s business or Services; and (c) MS3 providing assistance in connection with the defence and settlement of the Claim as Subscriber may reasonably request. MS3 will not defend or settle any Claim eligible for indemnification under this section without Subscriber’s prior written consent.
10. LIMITATIONS OF LIABILITY
- Exclusion of Consequential and Related Damages. NEITHER PARTY OR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF MS3 AND ITS RESPECTIVE AFFILIATES OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY SUBSCRIBER TO MS3 UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE FOREGOING LIMITATIONS WILL NOT IN ANY WAY LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES.
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MS3 TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- State Prohibition of Limitation of Liability and Disclaimer of Implied Warranties. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11. MOBILE TERMS
- Additional Mobile Application Terms. Use of a Mobile Application requires a mobile device that is compatible with the mobile service. MS3 does not warrant that the Mobile Applications will be compatible with any mobile device. Subscriber acknowledges that MS3 may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications. Subscriber consents to such automatic upgrading. Standard carrier data charges may apply to use of the Mobile Applications. The additional terms and conditions set forth here shall apply with respect to any Mobile Application that MS3 provides for use.
- Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
- Subcontractors. MS3 may utilize a subcontractor or other third party to perform its duties under this Agreement so long as MS3 remains responsible for all of its obligations under this Agreement.
- Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by fax, e-mail, international airmail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of the applicable Service Order. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier or sending an email or fax.
- Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
- Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of Hong Kong and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the courts of Hong Kong for any action arising out of or in connection with this Agreement.
- Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Services will immediately terminate.
- Entire Agreement. This Agreement, including the applicable Service Orders, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. MS3 may amend this Agreement from time to time, in which case the new Agreement will supersede prior version. MS3 will notify (notice within the application to be deemed sufficient) Subscriber of material changes and direct Subscriber to the latest version of this Agreement. MS3 will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, invoice, acceptance, purchase order, confirmation, correspondence, or otherwise, regardless of MS3’s failure to object to such terms, provisions or conditions. This Agreement may be executed in multiple counterparts, and may be signed electronically or via facsimile
- Survival. All relevant sections will survive any termination of this Agreement.