Last Updated: MARCH 1, 2019
MASTER SERVICE AGREEMENT
This MASTER SERVICE AGREEMENT is entered into by and between CUSTOMER (as defined in the applicable Order) and OLAPIC, INC. (“OLAPIC” or “US”), effective as of the Effective Date set forth in the applicable Order.
CUSTOMER AND OLAPIC HEREBY AGREE TO THE FOLLOWING:
This Agreement governs Olapic’s provision and Customer’s use of the Olapic Services as identified in one or more Orders executed by Customer and Olapic. This Agreement includes all Orders executed by Customer and Olapic, all attachments, and any other terms referenced herein or in any Order Forms, and represents the parties’ entire understanding regarding the Services. This Agreement shall control over any different or additional terms of any non-Olapic purchase order or other non-Olapic order forms, and no terms included in any such non-Olapic purchase order or other non-Olapic order forms shall apply to the Services. In the event of a conflict between this Master Service Agreement and an Order, the terms of the Order shall control. All capitalized terms not defined herein shall have the meanings attributed in the corresponding Order.
By using the Services and executing an Order, Customer agrees that Customer is bound by the terms of this Agreement. Each time Customer uses the Services, the current version of the Agreement will apply for use of the Services from the date of Customer’s first access. Accordingly, when using the Services, Customer should check the date of the Agreement and review any changes since the last version. If Customer does not agree with this Agreement at any time, Customer should cease use of the Services.
“Agreement” means this Master Service Agreement together with all Orders and any other terms referenced herein or in any Order Forms.
“Customer Content” means any and all audio, video, text, images, data, services, advertisements, promotions, URLs, keywords, navigational elements, links, pointers, technology and software content provided by Customer.
“Customer Properties” means the website(s) and all Customer-branded pages of Social Media Sites and other media channels operated by Customer for which the Services are being used. This includes any software, application, tool, web page, or web service residing on the site, page or media channel.
“Intellectual Property Rights” means all rights, title and interest (whether legal, equitable or otherwise) associated with any and all patents, copyrights, trademarks, trade secrets, trade names, trade dress, database rights, inventions, compilations, know-how and domain names and all other intellectual property rights of any sort throughout the world.
“Marks” means trade names, trademarks, trade dress and service marks of a party.
“Olapic Materials” means those components provided by Olapic under this Agreement, including any source code and object code, software library or API, and any related supporting content and documentation.
“Olapic Site” means olapic.com and any other website owned, operated or controlled by Olapic.
“Order” means a document for placing orders hereunder, including addenda and supplements thereto, entered into by Customer and Olapic. Orders shall be deemed incorporated herein by reference.
“Services” means the products and services that are licensed by Olapic to Customer under a corresponding Order.
“Services Data” means information, whether or not personally identifiable, as collected from end users, influencers, brand ambassadors and other content creators whose User Generated Content is collected for Customer through the Services.
“Social Media Sites” means Twitter, Instagram, Facebook, and any other social networking sites from which the Services may collect User Generated Content.
“Term” means the term of the subscription set forth in an Order for use of Olapic Services.
“User Data” is usage statistics, traffic patterns, and other non-personally identifiable aggregate data collected by Olapic in connection with end users of Customer through the Services.
“User Generated Content” is all text, photographs, images, video, audio, creative designs, information and other content uploaded by end users directly to the Customer Properties, posted on a Social Media Site and collected for upload to the Customer Properties by the Olapic Services, or contributed by influencers, brand ambassadors and other content creators to Customer through the Services.
2. TERM AND TERMINATION
2.1 This Agreement shall commence on the Effective Date set forth in the first Order and, unless earlier terminated as set forth below or as otherwise specified in the applicable Order, shall continue to remain in effect until the expiration or termination of the Term of all Orders of Customer.
2.2 If a party materially breaches any term or condition of an Order, or any term or condition of this Agreement as it relates to an Order, then the non-breaching party may send the breaching party a notice of breach that specifies in reasonable detail the nature of the breach. Upon receipt of such notice, the breaching party shall immediately correct the breach. If the breaching party fails to cure such breach within thirty (30) days after receiving such notice, then the non-breaching party may immediately terminate the Order and/or the Agreement by delivering a written notice of such immediate termination to the breaching party.
2.3 This Agreement may be terminated immediately upon written notice if either party becomes insolvent, is named in a petition for bankruptcy that is not dismissed within sixty (60) days after filing, ceases to function or conduct operations in the normal course of business, or makes an assignment for the benefit of its creditors.
2.4 Termination of this Master Service Agreement will result in the termination of any previously entered into Orders. Terminating this Master Service Agreement terminates the ability of either party to enter into subsequent Orders that incorporate the terms of this Master Service Agreement.
2.5 Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that: (i) all obligations that accrued prior to the date of termination (including but not limited to all payment obligations) and all remedies for breach of this Agreement shall survive; and (ii) the provisions of this Section 2.5, Section 5 (Proprietary Rights), Section 8 (Confidentiality), Section 10 (Limitation of Liability), Section 11 (Indemnification), Section 15 (General Provisions) and any other provisions of this Agreement necessary to give effect thereto shall survive.
3. RIGHT TO USE THE SERVICES AND RIGHT TO USE CUSTOMER CONTENT
3.1 During the Term, Olapic grants to Customer a worldwide, non-transferable, non-sublicenseable, and non-exclusive, license to access the Services subject to the terms of this Agreement. Customer agrees that the purchase of Services under any Order is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Olapic regarding future functionality or features.
3.2 Customer grants Olapic a worldwide, royalty-free, non-exclusive, license to: (i) use, reproduce, distribute, transmit and display Customer Content solely to provide the Services; and (ii) link to and from the Olapic Materials displayed on the Customer Properties and the Olapic Site by means of the attribution described in Section 4.1(iii).
4. USAGE RESTRICTIONS
4.1 Customer shall not: (i) modify, enhance or create derivative works of the Olapic Materials, including but not limited to the source code thereof; (ii) decompile, reverse engineer or disassemble the Olapic Materials, or any component thereof; (iii) remove the attribution “powered by Olapic”, or a similar attribution from the Services; or (iv) use any Marks or Intellectual Property Rights of Olapic except as expressly provided in this Agreement.
4.2 Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Olapic’s provision of the Services. Customer shall be responsible for maintaining the security of its equipment and Customer’s account access passwords. Customer and Olapic agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for all acts and omissions of its authorized users.
5. PROPRIETARY RIGHTS
5.1 The Customer Content, Services Data and Customer Marks may include proprietary and confidential materials of Customer, protected under copyright, trade secret, and other intellectual property laws. Except for the rights and licenses expressly set forth in this Agreement, Olapic acknowledges and agrees that as between Olapic and Customer, Customer owns and shall retain all right, title and interest, including Intellectual Property Rights, in and to the Customer Content, Services Data and Customer Marks.
5.2 The Olapic Materials, Olapic Marks, Services and User Data include proprietary and confidential materials protected under intellectual property laws. Except for the rights and licenses expressly set forth in this Agreement, Customer acknowledges and agrees that Olapic solely owns and shall retain all right, title and interest, including Intellectual Property Rights, in and to the Olapic Materials, Olapic Marks, Services and all User Data. For a period of sixty (60) days after the expiration or termination of an Order, Olapic shall provide Customer with access to all User Data collected by Olapic for Customer set forth in that Order.
5.3 All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services shall be owned by Olapic, and Customer hereby does and shall make all assignments and take all reasonable actions necessary to accomplish the foregoing ownership. Any rights in the Services not expressly granted herein are reserved by Olapic.
6. PRICING, BILLING AND PAYMENT
6.1 Customer shall pay Olapic: (i) a one-time Implementation Fee, (ii) a one-time Platform Fee for each Order, and (iii) such other fees, if any, indicated on the applicable Order.
6.2 Customer shall pay all fees in the amounts and at the times set forth in the applicable Order. All fees are non-cancelable and non-refundable, unless expressly otherwise specified. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Olapic’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless specified otherwise in the applicable Order, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice date.
6.3 All amounts invoiced hereunder are due and payable as specified in the Order.
6.4 Olapic may immediately suspend Customer’s password, account, and access to the Services if Customer fails to make payment due within ten business days after Olapic has provided Customer with notice of such failure. Any suspension by Olapic of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement.
7. NEW VERSIONS AND UPDATES; BROWSER COMPATIBILITY
7.1 Olapic reserves the right to release updates, upgrades or new versions of the Services at any time. Olapic shall own all Intellectual Property Rights to any updates, upgrades or new versions released. The Parties shall use commercially reasonable efforts to assist each other to the extent that any such update, upgrade or new version affects the Customer Properties or requires changes to the Customer Properties in order to be compatible with the Services.
7.2 The publicly available Services will be compatible with the current and one previous versions of the following browsers: Microsoft Internet Explorer and Edge, Apple Safari, Google Chrome, and FireFox. The password-protected Olapic administrative dashboard is not compatible with any version of Microsoft Internet Explorer, but is compatible with the above-stated versions of all other browsers. Optimal browser support requirements are subject to change.
8.1 Olapic or Customer may disclose to the other party certain confidential or proprietary information (“Confidential Information”), including but not limited to all information regarding Customer or Olapic and information relating to the integration of the Olapic Materials and Customer Content. Confidential Information shall include information which a party identifies as confidential or which under the circumstances should reasonably be recognized as confidential, whether shared orally, visually or in writing before or after the date of this Agreement. The party receiving Confidential Information agrees not to disclose such information to any third party other than its employees, agents, advisors, and contractors who have a need to know and who agree to keep such information confidential, take reasonable and prudent steps and security measures necessary to prevent the Confidential Information from being disclosed to any third party, and not to use such information except as necessary to perform its obligations under this Agreement. The obligations of this Section 8 shall not apply to information which: (i) is now in the public domain or which becomes generally available to the public through no fault of the receiving party; (ii) is already known to, or in the possession of, the receiving party prior to disclosure by the disclosing party as can be demonstrated by documentary evidence; (iii) is disclosed on a non-confidential basis from a third party having the right to make such disclosure; or (iv) is independently developed by the receiving party without use of the Confidential Information of the other party as can be demonstrated by documentary evidence. Each party may make disclosures of Confidential Information of the other party as required by law or government authority. The confidentiality provisions of this Section 8 shall continue for a period of five (5) years past the termination of this Agreement.
8.2 Notwithstanding anything else in the Agreement or otherwise, Olapic may monitor Customer’s use of the Services and compile User Data, which is statistical and performance information related to the provision and operation of the Services, provided that such User Data does not incorporate non-anonymized Services Data or identify Customer’s Confidential Information. Olapic retains all Intellectual Property Rights in such User Data.
9. REPRESENTATIONS AND WARRANTIES
9.1 Each party represents and warrants to the other party that (i) it has and shall have all the necessary rights, approvals, consents and permissions to enter into this Agreement and to grant the rights and licenses herein, and (ii) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
9.2 Olapic represents and warrants to Customer that (i) the Olapic Materials and Olapic Site (excluding all User Generated Content residing thereon) do not and shall not infringe the proprietary rights of any third party; (ii) Olapic will use commercially reasonable efforts to perform the Services in accordance with its documentation under normal use; and (iii) Olapic will provide the Services in a manner consistent with generally accepted industry standards. Customer must notify Olapic of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies.
9.3 For breach of the express warranty set forth in Section 9.2(ii), Customer’s exclusive remedy shall be the re-performance of the deficient Services. If Olapic cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to Olapic for such deficient Services, and such refund shall be Olapic’s entire liability for the deficient Services.
9.4 Customer represents and warrants that Customer will use the Services only in compliance with all applicable (i) Social Media Sites’ terms and conditions associated with the procurement and use of User Generated Content; and (ii) laws and regulations, including those related to spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity or defamation. Additionally, Customer represents and warrants to Olapic that (i) Customer owns all rights in and to the Customer Content; or if the Customer Content is subject to third party proprietary rights, Customer has all necessary rights, consents and permissions to provide the Customer Content to Olapic and to permit Olapic to use the Customer Content as necessary to provide the Services; and (ii) Olapic’s use of the Customer Content to provide the Services will not infringe or violate any third party’s Intellectual Property Rights.
10. LIMITATION OF LIABILITY
10.1 NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR: (i) ANY ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (ii) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (iii) ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR LIABILITIES TO THIRD PARTIES PURSUANT TO ANY INDEMNIFICATION OBLIGATION HEREUNDER, BREACH OF A PARTY’S OBLIGATIONS PURSUANT TO SECTION 8.1, OR A PARTY’S WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO OLAPIC IN THE PRECEDING TWELVE (12) MONTHS.
11.1 Olapic shall defend, indemnify and hold harmless (“Indemnify”) Customer and its officers, directors, agents, affiliates, distributors, franchisees and employees (“Representatives”) from and against any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees (“Liabilities”) arising from infringement or violation of a third party’s Intellectual Property Rights by the Olapic Materials or the Olapic Marks.
11.2 Customer shall Indemnify Olapic and its Representatives from and against any Liabilities arising from infringement or violation of a third-party’s Intellectual Property Rights by the Customer Properties, Customer Content, or the Customer Marks.
11.3 If a party entitled to indemnification hereunder becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the indemnified party by any third party, the indemnified party shall give the other party prompt written notice of such matter. The indemnifying party shall have the right to control the defense of any action subject to this indemnification and the indemnified party shall have the right to participate in such defense at its own cost with counsel of its own choosing.
11.4 The indemnification obligations set forth in this Agreement are conditioned upon (i) the indemnified party providing the indemnifying party with prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (at the indemnifying party’s expense); provided, however, that failure to give such notification shall not affect the indemnification provided under this Agreement except to the extent the indemnifying party shall have been materially prejudiced as a result of such failure, and (ii) the indemnifying party having sole control and authority to defend, settle or compromise such claim; except that the indemnifying party shall not enter into any settlement that affects the indemnified party’s rights or interests without the indemnified party’s prior written approval.
12.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, OLAPIC PROVIDES THE OLAPIC SERVICE “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. OLAPIC DISCLAIMS ANY LIABILITY FOR (I) THE ACCURACY OR LEGALITY OF THE USER GENERATED CONTENT; AND (II) ANY CUSTOMER TERMS USED BY CUSTOMER TO OBTAIN PERMISSION TO USE USER GENERATED CONTENT OR PROCESS SERVICES DATA. OLAPIC IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM TO CUSTOMER RESULTING FROM: (I) CUSTOMER’S USE OF THE OLAPIC SERVICE NOT IN ACCORDANCE WITH THIS AGREEMENT; (II) END USERS’ USE OF THE OLAPIC SERVICE; (III) LOSS OF ACCESS TO USER-GENERATED CONTENT CAUSED BY VIRUSES, WORMS, TROJAN HORSES, OR ANY SIMILAR CONTAMINATION OR DESTRUCTIVE PROGRAM; OR (IV) CONTENT POSTED IN ANY FORUM OR COMMUNITY AREA OF THE OLAPIC SITE OR SERVICES OTHER THAN BY OLAPIC.
13. PROCESSING OF PERSONAL DATA
13.1 In the event that Olapic processes Personal Data (as defined in the EU General Data Protection Regulation 2016/679) on behalf of Customer during the course of providing the Services, the parties agree to comply with the terms of the Data Processing Addendum available at: www.olapic.com/dpa/.
14.1 All notices under this Agreement will be in writing and in English and delivered to the parties at their respective physical or e-mail addresses stated herein or at such other address designated by written notice. Olapic may provide general notices applicable to all Olapic customers by means of general notices on customer dashboards of the Services, and notices specific to Customer by electronic mail to Customer’s e-mail address on record with Olapic or by written communication sent by first class mail or pre-paid post to Customer’s address on record with Olapic.
14.2 Customer shall send notices to Olapic, Inc. at 250 Vesey Street, 4th Floor, New York, NY 10281 Attn: Legal. Customer may provide notices by personal delivery, overnight delivery, first class mail or pre-paid post.
14.3 Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
15. GENERAL PROVISIONS
15.1 This Agreement, including all attachments hereto and all Orders, represents the parties’ entire understanding relating to the Services, and supersedes any prior or contemporaneous, conflicting or additional communications. Orders may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/ electronic signature shall be deemed an original and valid signature. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
15.2 In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
15.3 This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. Notwithstanding the foregoing, without consent, Olapic may assign the Agreement to any successor to all or substantially all of its business (whether by sale of assets or equity, merger, conversion, consolidation or otherwise). Any assignment in violation of this section shall be deemed null and void ab initio. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assignees of the parties hereto.
15.4 This Agreement shall be governed by the laws of the United States of America and the State of New York regardless of choice of law principles. The sole jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state and U.S. federal courts located in New York County, New York. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by New York state or U.S. federal law.
15.5 The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
15.6 Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5 or 8, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.