This Master Services Agreement (this “Agreement”) is made and entered into as of the transaction date, by and between Knowingly Inc. (DBA GigaOm), a Delaware corporation ( “GigaOm”), and the “Corporate User”.
WHEREAS, GigaOm owns the GigaOm analyst network website (the “GigaOm Site”) and provides certain services through or on the GigaOm Site (collectively, the “Services”), and Corporate User desires to obtain, and GigaOm wishes to grant, a license to use the GigaOm Site subject to the terms set forth herein.
NOW, THEREFORE in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency which are hereby acknowledged by the parties hereto, the parties agree as follows:
(a) GigaOm Site. Subject to the terms of this Agreement and during the Term (as defined herein), Corporate User shall be granted a license to access and use the Service and the GigaOm Site as set forth herein (the “Subscription Services”).
(b) Additional Services. From time to time, Corporate User may make a written request to GigaOm to provide Additional Services (as defined herein). Such written request (each a “Services Request”) shall be in the form attached hereto, as applicable, and made in and made according to GigaOm’s guidelines, as may be amended by GigaOm from time to time in its sole discretion. For the purposes of this Agreement: (i) “Custom Research” shall mean any research that is commissioned by Corporate User and delivered by GigaOm to Corporate User pursuant to the terms of this Agreement; (ii) “Webinar” shall mean a webinar organized and presented by GigaOm on a topic specified Corporate User; (iii) “Analyst Services” shall mean the services of certain analysts, authors, and/or contributors to the GigaOm Site (each such individual, an “Analyst” and collectively, the “Analysts”); and (iv) “Additional Services” shall mean, collectively, any Custom Research, Webinar, Analyst Services, and any other services mutually agreed upon by the Parties.
(c) Compliance with Law. Corporate User represents and warrants that the performance of Additional Services will not cause GigaOm, or anyone acting on its behalf, to violate any law or regulation or to breach any contractual obligation entered into in connection with providing the Additional Services.
2. Intellectual Property Rights.
(a) Content. The GigaOm Research Site is proprietary to GigaOm and is protected by intellectual property laws and international intellectual property treaties. The entire contents of the GigaOm Research Site (the “Content”) are copyrighted as a collective work under the laws of the United States and other copyright laws. GigaOm holds the copyright in the collective work. The collective work may include works that are the property of other third parties, which are also protected by copyright and other intellectual property laws. Corporate User may display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the Content from the different areas of the GigaOm Research Site solely for Corporate User’s own non-commercial use, unless otherwise permitted. Any redistribution, retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. Corporate User agrees not to change or delete any proprietary notices from materials downloaded from the GigaOm Research Site. Corporate User may not use any GigaOm logo or any other proprietary graphic or trademark without GigaOm’s express written permission. As between the parties, title, ownership rights, and intellectual property rights in the Services, and any copies or portions thereof, shall remain in GigaOm and/or its content providers. Third-party trademarks, service marks and logos contained in the GigaOm Research Site are owned and licensed by their respective owners. GigaOm reserves any rights not expressly granted herein. All GigaOm content that is made available to view and/or download in connection with the GigaOm Research Site is owned by and is the copyrighted work of GigaOm and/or its suppliers and is licensed, not sold. Corporate User may not lend, lease, rent or sublicense the GigaOm Research Site.
3. Grant of Limited License.
(a) Limited License to GigaOm Site. Corporate User’s access to the GigaOm Site is licensed and not sold. During the Term (as defined herein) and subject to Corporate User’s compliance with this Agreement, GigaOm agrees to provide Corporate User with an online account (the “Corporate Research/Webinar Account”) and a personal, revocable, non-transferable and non-exclusive account enabling Corporate User to access and use the Service and the GigaOm Site, by the number of Concurrent Users as defined and specified in an applicable Statement of Work (“SOW”), subject to the restrictions set forth herein. In the event Corporate User desires to obtain licenses for additional Concurrent Users, Corporate User shall deliver a written request to GigaOm. The grant of any such additional license shall be subject to acceptance by GigaOm and payment of the applicable license fees.
(b) Terms of Service. Corporate User and its Concurrent Users’ use of the Services through the Corporate Research Account is subject to the Terms of Services (currently accessible at https://gigaom.com/terms-of-service/ (the “Terms of Services”)); provided, however, if any of the terms in the Terms of Services conflict with any terms in this Agreement, the terms in this Agreement shall prevail. The Terms of Services are incorporated into this Agreement. All terms used in this Agreement not defined herein are given the meaning as defined in the Terms of Services. Corporate User acknowledges and agrees that it and each of its Concurrent User shall use the Services in compliance with the Terms of Services; provided, however, that GigaOm shall provide Corporate User with written notice of any material changes to the Terms of Services, and such material changes shall not be incorporate herein without Corporate User’s written consent.
4. User Agreement.
Corporate User hereby agrees to: (i) maintain the security of user identification, password and other confidential information relating to its Corporate Research Account and its Concurrent Users; (ii) be solely responsible for the security, confidentiality and integrity of all messages and the content that Corporate User and/or its Concurrent Users receive, transmit through or store on the Service; (iii) be responsible for all charges resulting from use of its Corporate Research Account, including unauthorized use prior to notifying GigaOm in writing of such use and taking steps to prevent its further occurrence by changing the password(s) for the Corporate Research Account; (iv) comply with the terms and conditions set forth herein; and (v) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding Corporate User’s use of the Services or GigaOm Site. Corporate User expressly agrees that: (i) it will not share any account information or allow access to its Corporate Research Account by any third party (other than the Concurrent Users), and that the Corporate Research Account is personal to Corporate User; and (b) it shall not share with any third party any information and content provided through the Services that is not made generally available by GigaOm.
5. Fees; Payment Terms.
(a) Fees. Corporate User agrees to pay GigaOm (i) the fees for the use of the Subscription Services and, as applicable, (ii) the fees for any Additional Services as set forth on the respective exhibits ((i) and (ii) collectively, the “Fees”). Unless otherwise stated, all Fees are stated in U.S. Dollars. The Fees do not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access and use the Services. All Fees, Taxes (as defined herein) and other charges will be invoiced to Corporate User at the current international currency conversion rate. Corporate User is responsible for and shall pay GigaOm all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, “Taxes”) for the use of the Services or resulting from this Agreement, whether imposed now or hereinafter by any governmental entity. Corporate user may only use research subscription licenses for the paid licenses listed in the SOW. Subscription licenses and research access may not be shared with non paid users if not listed in the SOW. If corporate user shares licenses, research or analyst time with non paid users, the corporate user is responsible for payment of the research subscription and analyst time fee for the additional users for the annual term beginning on the date of the sow execution. If corporate user does not comply with payment of additional users Gigaom will immediately suspend services and all fees due and payable shall be due within 10 days. Interest of 2% per month will be charged for late payments.
(b) Payment Terms. Except as set forth on the applicable exhibit(s) attached hereto, all Fees shall be paid in advance and shall be non-refundable. All Fees due and payable shall be invoiced to Corporate User and shall be due within 10 days of receipt of invoice. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused. GigaOm reserves the right to deactivate access to the Services and the Corporate Research Account for failure to pay applicable fees. In the event Corporate User fails to pay any amount when due, GigaOm may immediately suspend or terminate this Agreement and Corporate User’s access to the Services.
(c) Payment Address: Please remit payment to:
3905 State Street #7-448 Santa Barbara, CA 93105-5107 Refer all payment inquiries to: accountingdept@GigaOm.com
(a) Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for one (1) year, unless sooner terminated pursuant to Section 6(b) below (the “Initial Term”).” The Agreement shall automatically renew for succeeding terms of one (1) year each unless unless either party gives written notice to the other at least ninety (90) days prior to the expiration of any term.
(b) Termination. This Agreement may be terminated by either party in addition to the termination described in 6(a) above: (i) upon thirty (30) days after written notice has been given of a material breach of this Agreement by the other party which remains uncured; (ii) in the event a Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such Party, or if a receiver or trustee is appointed for all or any part of the property or assets of such Party; or (iii) by a written agreement executed by the Parties.
THE GIGAOM RESEARCH SITE AND SERVICES (INCLUDING ANY SUBSCRIPTION SERVICES AND ADDITIONAL SERVICES) ARE PROVIDED BY GIGAOM ON AN “AS IS” BASIS AND GIGAOM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE GIGAOM SITE, ANY SERVICES (INCLUDING ANY SUBSCRIPTION SERVICES AND ADDITIONAL SERVICES) OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE GIGAOM RESEARCH SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, GIGAOM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE AND/OR THE GIGAOM SITE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT. GIGAOM CANNOT AND DOES NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. GIGAOM CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THIS ONLINE SITE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. GIGAOM DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICES ACCESSED THROUGH THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE GIGAOM SITE WILL BE CORRECTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. GIGAOM MAY CHANGE THE SERVICE OR THE FEATURES IN ANY WAY, AND AT ANY TIME AND FOR ANY REASON.
CORPORATE USER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS GIGAOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES, ARISING OR RESULTING FROM ANY VIOLATION OF THIS AGREEMENT, A BREACH OF ANY WARRANTY, OR ANY USER SUBMISSION POSTED OR SUBMITTED BY CORPORATE USER AND/OR ITS CONCURRENT USERS (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT OR INFRINGEMENT OF ANY THIRD PARTY’S WORLDWIDE INTELLECTUAL PROPERTY RIGHTS).
9. Liability Limitation.
(a) EXCEPT FOR INDEMNIFICATION SET FORTH IN SECTION 8 ABOVE, NEITHER PARTY WILL BE LIABLE UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA OR COSTS OF REPLACEMENT GOODS, ARISING OUT OF THE USE OR INABILITY TO USE THE GIGAOM SITE, ANY SERVICES (INCLUDING ANY SUBSCRIPTION SERVICES AND ADDITIONAL SERVICES), OR RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENTED, EVEN IF GIGAOM MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) In the event of a claim against GigaOm, or any of its officers, directors, employees, or agents, arising from or related to content created for, or delivered to, Corporate User or any of its Concurrent Users, GigaOm may, in its sole discretion, demand that any such content be removed from public access (a “Content Takedown”). In the event of a Content Takedown, GigaOm and Corporate User will mutually agree on any refund due to Corporate User provided that any such refund shall not exceed the amount of compensation received by GigaOm from Corporate User specifically for the content that is the subject of the Claim Takedown.
(c) The GigaOm Site is controlled and offered by GigaOm from its facilities in the United States of America. GigaOm makes no representations that the GigaOm Site is appropriate or available for use in other locations. Those who access or use the GigaOm Site from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Corporate User consents to be referenced as a GigaOm Corporate client, including, but not limited to
inclusion of Corporate User’s logo to be placed on the GigaOm Site. Except as specifically set forth herein, any
other use of Corporate User’s name or logo including, without limitation, in a press release, shall be subject to
Corporate User’s prior approval in writing.
(a) Relationship of Parties. GigaOm and Corporate User are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party is an agent or representative of the other or is authorized to make any warranties or assume or create any other obligations on behalf of the other.
(b) Insurance. GigaOm will only carry these policies relevant to this Agreement: general liability of $1,000,000 USD per occurrence, $2,000,000 USD in aggregate; umbrella of $1,000,000 USD, professional liability / errors and omissions of $3,000,000 USD per occurrence, $3,000,000 USD in aggregate, and workers’ compensation coverage in compliance with applicable laws.
(c) Governing Law. This Agreement, and the rights of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Delaware as such laws apply to agreements among Delaware residents made and to be performed entirely within the State of Delaware.
(d) Contractors and Subcontractors. Corporate User acknowledges and approves GigaOm to use contractors and subcontractors as part of this Agreement.
(f) Severability. If any provision of this Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
(g) Assignment. Corporate User may assign and transfer this agreement or all or any part of its rights hereunder to any person, firm or corporation without limitation, and this agreement shall be binding upon and inure to the benefit of the parties hereto and their successors, representatives and assigns forever.
(h) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto and its respective heirs, successors, assigns, administrators, executors and other legal representatives.
(i) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together shall constitute one and the same agreement.
(j) Notice. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the Party to whom notice is given, as evidenced by written and dated receipt of the receiving Party. The mailing address for notice to either Party will be the address shown on the signature page of this Agreement and, in the case of Corporate User, a copy (which shall not constitute notice) shall be addressed to “General Counsel” at the same address. Either Party may change its mailing address by notice as provided by this Section.
(k) I agree to my information being processed by GigaOm and its partners to contact me via phone or email regarding information relevant to my professional interests.