MASTER SERVICES AGREEMENT
This Master Services Agreement (“Master Agreement”) is entered into by and between Continuous Technologies, Inc., a corporation organized under the laws of Delaware (“Continuous,” “we,” “us,” or “our”) and the customer (“you,” or “your”) identified on the corresponding mutually executed Order Form (as defined below) and is effective upon the first to occur of: (1) the latest date set forth on the signature page of the first Order Form, (2) you clicking “Accept” or (3) you accessing or using any of our Services (the date of such occurrence, the “Effective Date”). Continuous and you may be referred to in this Master Agreement individually as a “Party” and collectively, as the “Parties”.
THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CONTINUOUS AND YOU. YOU ARE RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT,” OR ACCESSING OR USING ANY OF OUR SERVICES. BY SIGNING AN ORDER FORM, OR ACCESSING OR USING OUR PLATFORM AND SERVICES, YOU CONFIRM THAT YOU HAVE READ AND ACCEPT THIS MASTER AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS, YOU MAY REFERENCE OR PROVIDE, OUR OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH YOU WITH RESPECT TO ANY OF OUR SERVICES IS EXPRESSLY LIMITED TO THE TERMS OF THIS MASTER AGREEMENT AND CONDITIONED ON YOUR CONSENT TO THIS MASTER AGREEMENT.
TERMS AND CONDITIONS
1.1. License to the Platform. Subject to your compliance with the terms of the Agreement, we hereby grant you, during the term of the applicable Service Period, a non-exclusive, limited, non-transferable right to access and use the Platform [via its web applications, user interfaces, Application Programming Interfaces (API), first or third-party integrations, plugins, and extensions], solely (i) for use by you and/or your Authorized Users and no other users, (ii) in support of your internal business purposes, and (iii) in strict accordance with the Agreement. Subject to your compliance with the terms of the Agreement, we hereby grant you a non-exclusive, limited, non-transferable right to use and copy the Documentation, solely for the purpose of using the Platform pursuant to this Section 1.1 (“License to the Platform”).
1.2. Availability of Platform. We will use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, subject to (i) planned downtime (of which we will give advance electronic notice), (ii) emergency maintenance, and (iii) the occurrence of force majeure events, as described in Section 9.2 (“Force Majeure”). Notwithstanding the foregoing, to the extent that we utilize a third-party application or interface to provide access to our Platform and associated Services, we are not responsible for any downtime caused by such third-party application or interface. We may utilize the services of any subcontractor that we deem appropriate to perform our obligations under the Agreement; provided, however, that we will require our subcontractors to comply with all applicable terms and conditions of the Agreement.
1.3. Support. We will provide Support Services, as further detailed in the Knowledge Center accessible via information provided in the Order Form.
1.4. Usage Limits. The Platform and Content are subject to usage limits specified in the applicable Order Forms. You may not exceed the usage limits established in the applicable Order Form. If you exceed a contractual usage limit, we may reduce your access to the Platform so that it conforms to that contractual limit. If you are unable or unwilling to abide by a contractual usage limit, you will execute an Order Form for additional usage of the Platform or Content promptly upon our request, and/or pay any invoice for excess usage in accordance with Section 1.9 (“Payment”).
1.5. Restrictions. You will not use, or allow others to use, the Services in any manner other than as expressly allowed in this Master Agreement, the Documentation and the applicable Order Form. You may not:
(i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to discover or create the source code of the Platform or its structural framework;
(ii) make any Service or Content available to anyone other than its Authorized Users, or use any Service or Content for the benefit of anyone other than you;
(iii) sublicense, subcontract, translate, distribute, make available, rent, lease or sell any rights to the Services or Content, or include any Service or Content in a service bureau or outsourcing offering;
(iv) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Platform;
(v) harvest or collect information about or from other users of the Platform;
(vi) probe, scan or test the vulnerability of the Platform, nor breach the security or authentication measures on the Platform or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Platform;
(vii) modify or create derivative works of the Platform;
(viii) use a Service or Third-Party Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
(ix) attempt to gain unauthorized access to the Platform or its related systems or networks;
(x) use a Service or Third-Party Application to store or transmit Malicious Code;
(xi) use the Services in whole or in part for benchmarking purposes, or for any illegal purpose, or any other purpose except as expressly provided under the Agreement;
(xii) facilitate or encourage any violations of this Section 1.5 (“Restrictions”);
(xiii) interfere with or disrupt the integrity or performance of the Platform;
(xiv) create Internet “links” to the Platform or “frame” or “mirror” any content therein; or
(xv) use, or permit the use of, the Services in connection with the development of any product or service that is in competition with services or features provided by the Services.
1.6. Customer Responsibilities. You will be responsible for (i) your Authorized Users’ compliance with this Master Agreement, the Documentation and Order Forms, (ii) for the interoperation of any Third-Party Applications that you use with the Platform or Content, (iii) using commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Content, and notify us promptly of any such unauthorized access or use, (iv) using the Platform and Content only in accordance with this Master Agreement, the Documentation, and Order Forms, and (v) compliance with the terms of service of any Third-Party Applications that you use in connection with our Platform or Content. Any use of the Services in breach of the foregoing by you or your Authorized Users that in our judgment threatens the security, integrity or availability of our Services may result in our immediate suspension of the Services, however, we will use commercially reasonable efforts under the circumstances to provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension.
1.7. Violations of Law. If you receive notice that Content or a Third-Party Application must be removed, modified and/or disabled to avoid violating Applicable Law or third-party rights, you will promptly do so. If requested by us, you will confirm such deletion and discontinuance of use in writing and we will be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. Notwithstanding the foregoing, we may immediately suspend provision of the Services at any time, without notice to you and without liability, if we suspect or receive notice that the Services or the use thereof actually or allegedly infringes or violates any third party’s rights or violates any Applicable Laws. We may immediately suspend you and your Authorized Users’ access to and use of the Services in order to comply with Applicable Laws, or upon having reason to believe that any improper activity or potential damage to our products or Services or other customers is associated with you or your Authorized Users’ use of or access to the Services.
1.8. Security. You and your Authorized Users will, ensure the security of all account IDs and passwords associated with you and your Authorized Users’ access to and use of the Platform, which may not be shared with any other individual. If any account ID or password is stolen or otherwise compromised, you will immediately change the password and inform us of the compromise. We may change the authorization method for access to the Platform if we determine in our sole discretion that there are circumstances justifying such changes. We are not responsible for loss of any data in transmission or improper transmission by you or your Authorized Users and you are solely responsible for maintaining an appropriate backup of Customer Data. We will adhere to industry standard security processes in hosting the Platform and will promptly respond to any security breaches of the Platform of which we become aware.
1.9. Payment. You must pay us all Fees as described in this Master Agreement and each applicable executed Order Form. Unless stated otherwise in the applicable Order Form, all invoiced amounts will be due and payable to us within thirty (30) days after your receipt of an invoice, and all subsequent amounts outstanding beyond thirty (30) days from the invoice date will be subject to a late payment charge at the lesser of one and one half percent (1.5%) per month or the highest rate permissible under Applicable Law for the actual number of days elapsed. All billing and payment terms, including currency and payment method, will be set forth in the applicable Order Form. If you fail to make payments when due, we may, upon notice to you, suspend your access and use of the Platform until such payments are made. If your Fees are subscription based, you will continue to be charged Subscription Fees during any period of suspension. We may impose a reconnection fee if you are suspended pursuant to this Section 1.9 (“Payment”) and thereafter request access to the Services. You agree and acknowledge that we have no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is delinquent for thirty (30) days or longer. You will maintain complete and accurate records of Fees paid to us regarding Services provided under each Order Form. You will retain such records for three (3) years after the completion or termination of the Services to which they pertain and will make such records available to us upon twenty (20) days advance written notice. You will participate in any audit of such records that we undertake. If applicable, you will receive an invoice for Fees applicable to the first Service Year of the Subscription Period upon or before the effective date of the applicable Order Form. Thereafter, we will invoice you for the applicable Fees annually in advance, or if this Master Agreement is terminated in accordance with the terms of this Master Agreement, from the date of the last billing to the effective date of termination. To the extent your use of the Services exceeds the Authorized User Cap, we will invoice you, beginning in the month such use exceeds the cap, Additional User Fees for each additional Authorized User beyond the cap for the remainder of the Service Year. Subscription renewal fees will be equal to the subscription pricing in effect during the last month of the prior Subscription Period, unless we have given you at least [thirty (30)| days prior written notice of a fee increase, which shall be effective upon renewal of the Subscription Period. Fees for additional or out of scope services will be charged on an as-quoted basis.
1.10. Taxes. All Fees and payments hereunder are nonrefundable and exclusive of all taxes, including, but not limited to, sales, use, excise, value- added, goods and services, consumption, and other similar taxes or duties (except taxes on our income), and you agree to pay such taxes, whether federal, state, local, or municipal. The Fees are exclusive of all taxes, levies, withholdings, deductions or duties imposed by taxing authorities in connection with any Order Form. You are responsible for paying all such taxes, levies, withholdings, deductions or duties except any taxes based solely on our income or which do not arise from any Order Form. If we have the legal obligation to pay or collect taxes for which you are responsible, that additional amount will be invoiced to, and paid by you, unless you provide us a valid tax exemption certificate authorized by the appropriate taxing authority. If you have the legal obligation to withhold or deduct any amount from the Fees, the sum payable by you (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that we receive a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made. Unless prohibited by the applicable taxing jurisdiction, the tax jurisdiction will be your business contact address as set forth in the applicable Order Form. You may update such address by providing written notice to us pursuant to the terms set forth in Section 9.7 (“Notices”) of this Master Agreement, and taxes will be updated on a prospective basis.
2. Term and Termination.
2.1. Term. The term of this Agreement will commence on the Effective Date and continue until the date when all Order Forms hereunder have expired or until terminated in accordance with this Section 2 (“Term and Termination”). The term of each Order Form will be specified as the Service Period in the applicable Order Form.
2.2. Termination for Cause. A Party may terminate this Master Agreement or the applicable Order Form for cause (i) upon [forty-five (45) days ]written notice to the other Party if the other Party materially breaches this Master Agreement or the applicable Order Form, and such breach has not been cured by the end of such [forty-five (45)] day period, or (ii) immediately upon written notice to the other Party if the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors. For the avoidance of doubt, failure to make payment in accordance with Section 1.9 (“Payment”) will be considered a material breach of the Agreement.
2.3. Termination for Convenience. Either Party may terminate this Master Agreement or any Order Form for convenience upon [ninety (90) days’] written notice to the other Party; provided, however, that if you are the terminating Party, you will pay all outstanding Fees you have incurred through such termination date, including any Fees owed to us through the remainder of the applicable Service Period, and if there are any prepaid Fees, such prepaid Fees will not be refundable to you unless otherwise set forth in an applicable Order Form.
2.4. Effect of Termination. Upon any termination of the Agreement, (i) you and your Authorized Users’ right to access or use the Customer Data and the Platform will immediately cease and [except as otherwise provided herein,] we will have no obligation to maintain, deliver or provide access to any Customer Data, (ii) all Order Forms will immediately terminate, and (iii) you will pay any balance due to us pursuant to Section 1.9 (“Payment”). [At your request, and for a period of up to sixty (60) days after the end of the applicable Order Form, we will make available to you the Customer Data as existing in the Platform on the date of termination. At the end of such sixty (60) day period, and except as may be required by Applicable Law, we will delete or otherwise render inaccessible any of the Customer Data that remains in the Platform.]
2.5. Survival. Your payment obligations, and [Sections 1.5 (“Restrictions”), 1.9 (“Payment”), 2.5 (“Survival”), 3 (“Ownership and Licenses”), 5 (“Confidentiality”), 6 (“Limited Warranties”), 7 (“Indemnification”), and 8 (“Limitations of Liability”)] will survive expiration or termination of the Agreement.
3. Ownership and Licenses.
3.1. Reservation of our Rights. All rights not expressly granted to you herein are expressly reserved by us. As between the Parties, the Platform are and will remain our exclusive property, and we will retain ownership of all Intellectual Property Rights relating to or residing in the Platform and any updates, improvements, modifications and enhancements (including error corrections and enhancements) thereto, and all derivative works thereof, and you will have no right, title, or interest in or to the same except as expressly granted in Section 1.1 (“License to the Platform”). Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of our or our licensors’ existing or future rights in or to the Platform except as expressly granted in Section 1.1 (“License to the Platform”). our trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, will be owned exclusively by us and will inure solely to our benefit; you will not use any of the foregoing for any purpose without our prior written consent in each instance.
3.2. Customer Data. As between the Parties, you have and will retain sole and exclusive title and ownership of all Customer Data. [You grant to us a limited and non-exclusive license to use, copy, modify, distribute and display any Customer Data and any Third-Party Applications provided by you, in each case, for purposes of providing the Services to you in accordance with this Agreement and as otherwise expressly authorized by this Agreement.] If you choose to use a Third-Party Application with a Service, you grant us permission to allow the Third- Party Application and its provider to access Customer Data and information about your usage of the Third-Party Application as appropriate for the interoperation of that Third-Party Application with the Service. You acknowledge that it is solely responsible for the integrity, completeness, accuracy, and validity of Customer Data, and we will not be responsible for any loss, damage or liability arising out of the Customer Data, including any mistakes contained in the Customer Data, the use or transmission of the Customer Data, or any results obtained from the Customer Data. If you do not want to provide us your Customer Data for use, please opt out by emailing legal at firstname.lastname@example.org.
3.3. Continuous Data. We have and will retain sole and exclusive title and ownership of all Continuous Data, and have the right to use such Continuous Data for any lawful purpose.
3.4. Performance Data. In addition, you acknowledge and agree that we may monitor and gather data and information related to your use of the Platform, including, for example, data regarding memory usage, connection speed and efficiency. You acknowledge and agree that such data and information is considered Continuous Data and is not considered Confidential Information of Customer.
3.5. License by Customer to Use Feedback. You grant us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your Authorized Users relating to the operation of our Platform and Services.
4. Specifications and Requirements.
4.1. Requirements for the Services. As between the Parties, you are responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the Services, and for paying all associated third-party access charges.
4.2. Changes to the Platform. We may make upgrades and improvements to the Platform available to you from time to time. We may modify or delete any features of the Platform. We may, at any time, modify the Platform, or substitute old features with new features that have similar or improved functionality, as may be necessary to meet Applicable Laws or industry-standard requirements or demands or requirements of third-party service providers.
4.3. Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
4.4. Professional Services. To the extent any Professional Services are to be performed by us, such Professional Services will be defined in and performed pursuant to the Knowledge Center and any applicable Order Form. We will perform such Professional Services in a reasonable and workmanlike manner.
5.1. Confidential Information. Each Party acknowledges and understands that, except as set forth in Section 5.2 (“Exceptions”), any and all technical, trade secret, or business information, including, without limitation, financial information, business or marketing strategies or plans, product development or customer information, which is disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or is otherwise obtained by the Receiving Party, its affiliates, employees, representatives or other agents that is designated as confidential or which should be reasonably understood as confidential under the circumstances, during the term of this Agreement (or during any negotiation or evaluation of our Services in connection with this Agreement) (the “Confidential Information”) is confidential. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. Without limiting the foregoing, the Platform and all related technology, and the Documentation, is our Confidential Information.
5.2. Exceptions. Confidential Information does not include any information that is (i) already known to the Receiving Party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the Receiving Party; (iii) subsequently disclosed to the Receiving Party on a non-confidential basis by a third party not having a confidential relationship with the Disclosing Party and which third party rightfully acquired such information; or (iv) was independently developed by the Receiving Party through no wrongful act or failure of the Receiving Party.
5.3. Obligations. The Receiving Party will maintain as confidential and will not disclose (except to those employees, subcontractors, attorneys, accountants and other advisors, or agents of the Receiving Party who need to know such information for purposes of this Agreement and who have in turn been advised of the confidentiality obligation hereunder), copy, or use for purposes other than in connection with use or provision of the Services as authorized hereunder, the Disclosing Party’s Confidential Information. Each Party agrees to protect the other Party’s Confidential Information with the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Neither Party will disclose the terms of this Master Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other Party’s prior written consent. The Receiving Party will be liable under this Agreement to the Disclosing Party for any use or disclosure of the Disclosing Party’s Confidential Information in violation of this Agreement by the Receiving Party’s employees, subcontractors, attorneys, accountants or other advisors, or agents.
5.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Applicable Law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by Applicable Law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
5.5. Personal Data. Capitalized terms used but not otherwise defined herein shall have the meaning given to them or like terms in applicable Data Protection Laws. To the extent that Customer Data includes Personal Data, you shall act as a Controller and we shall act as a Processor of such Personal Data. We shall process such Personal Data on your behalf, in accordance with your documented instructions and applicable Data Protection Laws, as otherwise necessary to provide the Services, or as otherwise agreed in writing by the Parties. The scope of such instructions are set out by this Agreement. In your role as a Controller of Personal Data, you shall ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to us for purposes of providing the Services. We shall provide all information and assistance reasonably requested by you to enable you to comply with applicable Data Protection Laws, including in relation to data subject requests, security, breach notifications, and privacy impact assessments. Where we act as a Service Provider under applicable Data Protection Laws, we shall not: (i) sell your Personal Data; (ii) collect, retain, use, or disclose your Personal Data for any purpose other than providing the Services; (iii) collect, retain, use, or disclose your Personal Data outside of the direct business relationship between the Parties; or (iv) combine your Personal Data with Personal Data that we obtain from other sources. At your direction, we shall securely delete or return your Personal Data to you within fourteen (14) days of termination of the Services. To the extent that you transfer Personal Data to us that is subject to Data Protection Laws outside the U.S., you agree to cooperate with us to comply with applicable requirements, including as related to cross-border transfers of Personal Data.
6. Limited Warranties.
6.1. Mutual Warranties. Each Party warrants to the other Party that (i) such Party has the right to enter into this Agreement and perform its obligations hereunder in the manner contemplated by this Agreement; and (ii) this Agreement does not conflict with any other agreement entered into by such Party.
6.2. Customer Warranties. You represent, warrant and covenant that you (i) will comply with all Applicable Laws with respect to you and your Authorized Users’ access to and use of the Platform and Services; (ii) have received all third- party consents and certifications necessary for (a) the transmission of Customer Data into the Platform, and (b) us to use the Customer Data as permitted herein. We are not responsible for ensuring that the Services or any portion thereof is in compliance with your criteria for legal compliance.
6.3. Continuous Warranties. We warrant to you that, when used in accordance with the Documentation, the Platform will perform materially in compliance with the Documentation during the Service Period (“Services Warranty”). Our sole obligation under the Services Warranty, and your sole and exclusive remedy for any breach of the Services Warranty, will be for us to perform Support Services, as further detailed in the Knowledge Center as set forth in Section 1.3 (“Support”).
6.4. Disclaimers. EXCEPT FOR THE SERVICES WARRANTY PROVIDED IN SECTION 6.3 (“CONTINUOUS WARRANTIES”), WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, THE PLATFORM ANY OTHER APPLICABLE PLATFORM THROUGH WHICH THE SERVICES ARE PROVIDED, AND ANY INFORMATION, MATERIALS AND OTHER SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF OR DAMAGE TO CUSTOMER DATA, LOSS OF BUSINESS OR LOST PROFITS. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE AVAILABLE, ERROR FREE, COMPLETELY SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS, OR THAT PROGRAM DEFECTS OR ERRORS ARE CAPABLE OF CORRECTION OR IMPROVEMENT. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
6.5. Third-Party Data and Third-Party Applications. The Platform may allow access to Third-Party Applications, Content, data, information, materials or services disseminated by third-party sources. You acknowledge that Continuous and our suppliers and licensors do not warrant or support, and disclaim responsibility for the use, content, accuracy, timeliness, completeness or availability of, such Third-Party Applications, Content, data, information, materials or services. You are responsible for obtaining the licenses required for you access and use any such Third-Party Applications, Content, data, information, materials or services; and any acquisition by you of such products or services, and any exchange of data between you and any third-party provider, product or service, is solely between you and the applicable third-party provider. YOU USE SUCH THIRD-PARTY APPLICATIONS, CONTENT, THIRD-PARTY DATA, INFORMATION, MATERIALS AND SERVICES AT YOUR OWN RISK.
6.6. Integration with Third-Party Applications. The Platform may contain features designed to interoperate with Third-Party Applications. we cannot guarantee the continued availability of such Platform features, and may cease providing them without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform features in a manner acceptable to us.
7.1. By Continuous. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the Platform infringes or misappropriates such third party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, a Claim Against Customer, provided you:
(i) promptly give us written notice of the Claim Against Customer, but failure to provide such notice will not relieve us of its indemnity obligations hereunder unless it is materially prejudiced thereby;
(ii) give us sole control of the defense and settlement of the Claim Against Customer (except that we may not settle any Claim Against Customer without your approval unless it unconditionally releases you of all liability);
(iii) will have the right to, at your cost, to employ counsel of your choice to participate in the defense of such claim; and
(iv) give us all reasonable assistance, at our expense.
If we receive information about an infringement or misappropriation claim related to the Platform, we may at our discretion and at no cost to you:
(a) modify the Platform so that they are no longer claimed to infringe or misappropriate;
(b) obtain a license for your continued use of the Platform in accordance with this Agreement; or
(c) terminate your use of the Platform upon thirty (30) days’ written notice and refund you any prepaid Fees covering the remainder of the term of the applicable terminated Service Period.
The above defense and indemnification obligations do not apply if:
(1) the allegation does not state with specificity that the Platform are the basis of the Claim Against Customer;
(2) a Claim Against Customer arises from the use or combination of the Platform or any part thereof with software, hardware, data, or processes not provided by us, if the Platform or use thereof would not infringe without such combination;
(3) a Claim Against Customer arises from Platform under an Order Form for which there is no charge; or
(4) a Claim against Customer arises from Content, a Third-Party Application or your breach of this Agreement, the Documentation or applicable Order Forms.
This Section states our sole liability to you, and your exclusive remedy against us, for any third-party claim described in this Section.
7.2. By Customer. You will defend us and our affiliates against any claim, demand, suit or proceeding made or brought against us by a third party alleging:
(i) that any Customer Data or your use of Customer Data with the Platform;
(ii) a Third-Party Application provided by you, or
(iii) the combination of a Third-Party Application provided by you and used with the Platform, infringes or misappropriates such third party’s Intellectual Property Rights, or arising from your use of the Platform or Content in an unlawful manner or in violation of the Master Agreement, the Documentation, or Order Form (each a “Claim Against Continuous”).
Furthermore, you will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of, a Claim Against Continuous, provided we:
(a) promptly give you written notice of the Claim Against Continuous, but failure to provide such notice will not relieve you of your indemnity obligations hereunder unless it is materially prejudiced thereby;
(b) give you sole control of the defense and settlement of the Claim Against Continuous (except that you may not settle any Claim Against us without our approval unless it unconditionally releases us of all liability);
(c) have the right, at our cost, to employ counsel of our choice to participate in the defense of such claim; and
(d) give you all reasonable assistance, at your expense.
The above defense and indemnification obligations do not apply if a Claim Against Continuous arises from our breach of this Master Agreement, the Documentation or applicable Order Forms. This Section states your sole liability to us, and our exclusive remedy against you, for any third-party claim described in this Section.
8. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES AND/OR ANY OTHER SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY IS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITYOFSUCHDAMAGES. OURTOTALCUMULATIVELIABILITYTO YOU IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED AMOUNTS ACTUALLY PAID BY YOU TO US DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ANY SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN WILL LIMIT (I) YOUR LIABILITY ARISING FROM YOUR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF OURS OR YOUR BREACH OF THE LICENSE TO THE SERVICES SET FORTH IN SECTION 1.1 (“LICENSE TO PLATFORM”) OR (II) EITHER PARTY’S LIABILITY ARISING FROM SUCH PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.
9.1. Assignment. Neither Party may assign this Agreement without prior written consent of the other, except in the event of a merger, consolidation or sale of all or substantially all of such Party’s assets to which this Agreement relates. Any attempt to assign this Agreement not in accordance with this Section 9.1 (“Assignment”) will be null and void.
9.2. Force Majeure. Except with respect to the obligation of payment, neither Party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, disease or pandemic, act of terror, strike or other labor problem (other than one involving our employees), Internet service provider failure or delay, a Third-Party Application, or denial of service attack. The Parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.
9.3. Limitation of Actions. You may not bring any action, regardless of form, arising out of this Agreement more than one year after the cause of action has been or reasonably should have been discovered.
9.4. Governing Law. This Agreement is deemed to be made under and will be interpreted in accordance with the laws of the State of Delaware, excluding its conflict of laws provisions.
9.5. Arbitration. The Parties agree that any dispute, claim or controversy directly or indirectly relating to or arising out of this Agreement, the termination or validity hereof, any alleged breach of this Agreement or the engagement contemplated hereby (any of the foregoing, a “Claim”) will be submitted to Judicial Arbitration and Mediation Services (“JAMS”), or its successor, in San Francisco, California, for final and binding arbitration in front of a panel of three arbitrators with JAMS in San Francisco, California, under the JAMS Comprehensive Arbitration Rules and Procedures (with each Party choosing one arbitrator, and the chosen arbitrators choosing the third arbitrator). The arbitrators will, in their award, allocate all of the costs of the arbitration, including the fees of the arbitrators and the reasonable attorneys’ fees of the prevailing Party, against the Party who did not prevail. The award in the arbitration will be final and binding. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§1–16, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The Parties agree and consent to personal jurisdiction, service of process and venue in any federal or state court within the State and County of San Francisco, California in connection with any action brought to enforce an award in arbitration.]
9.6. Independent Contractors. Customer and Continuous are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the Parties. Except as otherwise specifically provided in this Agreement, neither Party will have or represent that such Party has the right, power or authority to bind, contract or commit the other Party or to create any obligation on behalf of the other Party.
9.7. Notices. All legal notices and consents required or permitted under this Agreement must be delivered to the other Party in writing: (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s corporate headquarters and will be effective upon receipt. You may also email Continuous at email@example.com. Continuous may email your billing contact identified on the applicable Order Form(s) for all legal notices and consents required or permitted under this Agreement; provided, that, any emails received after regular business hours shall be deemed to be effective the following business day. Notices to us should be sent to the attention of our Chief Executive Officer. Each Party may change its address for receipt of notices by giving notice of the new address to the other Party. You must provide us with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized business contact and named Accounts Payable representative. You agree to update this information within [thirty (30)] days of any changes.
9.8. Publicity. You hereby grant to us the right to use your name and logo on our website and in our collateral marketing materials relating to the Platform. You agree to allow us to use your name and logo (in such form as provided by you to us for such purpose) solely as a reference, current customer or user of the Platform in our marketing materials.
9.9. Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the Parties to the fullest extent possible.
9.10. Waivers. The failure of either Party to enforce any provision of this Agreement, unless waived in writing by such Party, will not constitute a waiver of that Party’s right to enforce that provision or any other provision of this Agreement.
9.11. LIMITED REMEDIES. WITHOUT LIMITING ANYTHING IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES (I) ARE A FUNDAMENTAL PART OF THE BASIS OF OUR BARGAIN HEREUNDER, AND WE WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS, DISCLAIMERS AND EXCLUSIONS, AND (II) ARE INTENDED BY THE PARTIES TO BE ENFORCEABLE TO THE MAXIMUM ALLOWED BY APPLICABLE LAW, SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED AS SUCH. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN WILL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW.
9.12. Equitable Remedies. Each Party acknowledges that a breach of its obligations under this Agreement could cause irreparable harm to the other Party and that monetary damages may be difficult to ascertain. Therefore, without prejudice to the rights and remedies otherwise available to it, and notwithstanding anything to the contrary set forth herein, each Party will be entitled to seek relief by way of injunction or specific performance in any court of competent jurisdiction without the need of posting a bond or other security.
9.13. No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto, and no other person or entity will be a direct or indirect beneficiary of or will have any direct or indirect cause of action or claim in connection with this Agreement.
9.14. Remedies Cumulative. Unless explicitly stated otherwise, the enumeration herein of specific remedies will not be exclusive of any other remedies. Any delay or failure by any Party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, will not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor will it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege.
9.15. Entire Agreement. This Agreement supersedes all prior discussions, understandings and agreements with respect to its subject matter. Any terms on prior purchase orders, payment documents, or other documents submitted by you will be void and have no force or effect.
9.16. Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) this Master Agreement, and (3) the Documentation.
9.17. Interpretation. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement.
9.18. Modifications to this Agreement. We may modify this agreement at any time by posting a revised version on the Continuous Site or by otherwise notifying you in accordance with Section 9.7 (“Notices”); provided, however, that we give you [30 day] advance notice of any adverse material changes to this Agreement except when, as a result of regulatory, legal, or governmental action, it will be unreasonable to do so. Modifications to this Agreement will be deemed effective upon posting. By continuing to use the Platform after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Continuous Site regularly for modifications to this Agreement. Any changes to an Order Form during the Subscription Period or other applicable period of Services will require a written amendment to such Order Form signed by you and Continuous.
10.1.“Agreement” means the Master Agreement together with any applicable Order Forms entered into between Parties.
10.2.“Applicable Laws” means all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the Parties, whether those laws, etc., are in effect as of the Effective Date or later come into effect during the term of this Agreement.
10.4. “Consumption Fee” means the rate that we will charge you in consideration for your right to use and access the Platform in accordance with this Master Agreement and as described in the Order Form.
10.5.“Content” means information we have obtained from publicly available sources or our third-party content providers and made available to you through the Platform.
10.6.“Continuous Data” means any data, information and insights generated from, derived from, appended, extrapolated from, modified, altered, transformed, compiled, or otherwise adapted or enhanced from any data, including Customer Data, by us in accordance with this Agreement. For the avoidance of doubt, Continuous Data does not include Customer Data.
10.7.“Continuous Site” means the website located at continuoustech.com, and all affiliate links.
10.8.“Customer Data” means all information and data input by Authorized Users or, if applicable, by our personnel on behalf of an Authorized User, into the Platform, excluding Content and Third-Party Applications.
10.9.“Data Protection Laws” means all Applicable Laws, implementing regulations, regulatory guidance and secondary legislation relating to privacy, data security and data protection, each as updated or replaced from time to time, including but not limited to: (i) U.S. state and local privacy or information security laws (including the California Consumer Privacy Act of 2018) (“CCPA”) and the California Privacy Rights Act (“CPRA”)) (ii) the General Data Protection Regulation ((EU) 2016/679) (the “GDPR”) and any applicable national implementing laws; (iii) the UK General Data Protection Regulation (“UK GDPR”) and the UK Data Protection Act 2018 and (iv) security breach notification laws.
10.10.“Documentation” means any standard user guide, manual or other explanatory materials regarding the Platform as provided or otherwise made electronically available by us to you, including as modified or updated by us from time to time.
10.11.“Fees” means the Consumption Fees, Subscription Fees and/or any other fees and expenses (as applicable) payable by you to us as set forth in this Master Agreement, applicable Order Forms, or the Knowledge Center.
10.12.“Intellectual Property Rights” means all intellectual property rights, including copyrights, patents, trademarks, trade secrets, know-how, databases, designs, software, processes, algorithms, user interfaces, techniques, other tangible or intangible technical material and any other proprietary information.
10.13.“Knowledge Center” means Continuous’ online customer portal that includes feature and functionality descriptions of the Services, accessible via information provided in the Order Form.
10.14.“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
10.15.“Order Form” means an ordering document that will be entered into between the Parties regarding access to the Platform, Services, and Professional Services, including any schedules and supplements thereto.
10.16.“Platform” means, collectively, the platform and any other software-as-a- service products ordered by you under an Order Form, all as made available to you under this Agreement and as may be updated by us from time to time. “Platform” excludes Content and Third-Party Applications.
10.17.“Professional Service(s)” means, collectively, the consulting, development, customization and other professional services which you order from us under an applicable Order Form, including any deliverables described in the Order Form.
10.18. “Service(s)” means, collectively, access to and use of the Platform, Documentation, Professional Services, and Support Services.
10.19.“Service Period” means the term of your access to and use of the Platform and Services as identified in the applicable Order Form.
10.20.“Subscription Fees” mean the annual fees payable by you in consideration for its right to use and access the Platform in accordance with this Master Agreement and as described in the Order Form.
10.21.“Subscription Period” means the term of your subscription to the Platform as identified in the Order Form.
10.22.“Support Service(s)” means bug fixes and any additional technical support as detailed in the Knowledge Center accessible via information provided in the Order Form.
10.23.“Third-Party Application” means a software application that is provided by you, or a third-party that interoperates with the Service.
Updated May 1, 2022