Master Services Agreement
THIS MASTER SERVICES AGREEMENT ("AGREEMENT") IS BY AND BETWEEN ORGSYNC, INC. TOGETHER WITH ITS AFFILIATES, EACH IDENTIFIED OR REFERRED TO IN AN ORDER FORM ("COMPANY") AND YOU, OR, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, (IN EITHER CASE "YOU" OR "YOUR"), (EACH A "PARTY" AND COLLECTIVELY, "PARTIES"). BY SIGNING THE ORDER FORM AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT GOVERNING YOUR USE OF ONLINE SERVICE (THE "SERVICE"). IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT USE THE SERVICE.
1. License Grant & Restrictions
(a). Company hereby grants you and your users a non-exclusive, non-transferable, worldwide right to use the Service, as specified in the Order Form, solely for your own purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by the Company.
(b). You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, entity or assignee, the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to: (1) build a competitive product or service; (2) build a product using similar ideas, features, functions or graphics of the Service; or (3) copy any ideas, features, functions or graphics of the Service.
(c). You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
The Service may be only be used for lawful purposes, and any posting or transmission of data or other use of the Services in violation of any applicable state, federal or other law is strictly prohibited. Company reserves the right to remove material that it deems harmful, obscene or in any way threatening to the safety, security, and enjoyment of its subscribers.
(d). It is your responsibility to protect your security credentials and API keys. Failure to do so could compromise the privacy and security of Customer Data or User Information. Non-institutional entities, service partners, or other persons who you authorize to access the Service through login or API may be exposed to Customer Data or User Information. You should ensure that these entities, partners, or persons are covered under appropriate confidentiality agreements with your institution. Such third party use shall not limit your right or relieve you from any duties or liabilities hereunder. As a best practice, Company recommends that all customers utilize campus authentication protocols for accessing the Service.
(e). You shall have the sole responsibility for securing any necessary rights or permissions from any third party for any Customer Data and for the use of any third-party facility, link, software and feature capabilities of the software structure.
2. Intellectual Property Ownership
Company alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Company Property, the Content, the Service, and any work product; including, but not limited to, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you related to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Company Property or the Intellectual Property Rights owned by Company. The Company name, the logo, and the product names associated with the Service are trademarks of Company, and no right or license is granted to use them. All content included on this site is protected by United States and International copyright laws.
3. Customer Data Ownership and Privacy
(a). Company does not own any Customer Data or User Information, and you shall retain any and all right, title and interest to such data. Company may adapt, modify, add to, translate, manipulate, restructure, and reformat the Customer Data as necessary to create, modify, and maintain the Services hereunder. You, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all Customer Data.
(b). You acknowledge Company has the right to use Aggregated Anonymous Data to: (i) compile statistical and performance information related to the provision and operation of the Services, and (ii) make such information available to use and to supplement the Services. However, Company’s access to Customer Data and User Information shall not be disclosed at the individual identifiable level for any commercial purposes not related to the Services. Company retains all intellectual property rights in the Aggregated Anonymous Data and such data shall be deemed as Company Property.
(c). COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY OF YOUR OR YOUR USERS USE OR MISUSE OF SERVICES ARISING OUT OF OR RELATED TO ANY DAMAGES OR CLAIMS IN CONNECTION WITH ANY CUSTOMER DATA OR USER INFORMATION; INCLUDING, BUT NOT LIMITED TO ANY INTELLECTUAL PROPERTY INFRINGEMENT, DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CUSTOMER DATA.
4. Term, Charges and Payment of Fees
(a). This Agreement shall commence upon the Order Date and shall continue for the initial Term, as identified in the Order Form. You shall pay all fees or charges to your account in accordance with the Order Form which specifies payment and billing terms in effect at the time a fee or charge is due and payable.
(b). All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying all fees for the entire subscription Term, whether or not the Service is actively used. The subscription fee for additional licenses will be the then current, generally applicable subscription fee. Company may not modify its fees and charges for Services for which payment has already been rendered. However, Company reserves the right to modify its fees and charges upon your election to add new functionality and/or features to the Service at any time, upon at least thirty (30) days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party unless required by law.
5. Non-Payment and Suspension
In addition to any other rights granted to Company herein, Company reserves the right to suspend or terminate this Agreement, including your access to the Service, in the event your account becomes delinquent. You will continue to be charged during any period of suspension. If you or Company initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above.
6. Termination for Cause
Any breach of your payment obligations or unauthorized use of the Company Property or Service will be deemed a material breach of this Agreement. Company, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. The following provisions shall survive any termination or expiration of this Agreement: 7, 8, 10, 11, and 13.
7. Representations & Warranties
(a). Each Party represents and warrants that: (i) it has the legal power and authority to enter into this Agreement; and (ii) is the owner of, has a license to use, or has secured necessary rights or permissions from any third party use of copyrights, patents, trademarks, trade secrets, or other intellectual property granted or conveyed herein, and that any rights, licenses, or other uses granted by such party do not infringe or misappropriate any right of any third party.
(b). Company represents and warrants that it will provide the Service in a manner consistent with general industry standards which are reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Company help documentation under normal use and circumstances.
(c). EXCEPT AS PROVIDED HEREIN, THE PARTIES MAKE NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(a). Company shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, partners and agents ("Your Indemnitees") harmless from and against any and all claims, costs, damages, liabilities and expenses, including reasonable attorneys' fees and costs (collectively, "Losses") arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a material breach by Company of its representations or warranties; or (iii) a claim arising from Company’s gross negligence or willful misconduct of this Agreement;
(b). You shall indemnify, defend and hold Company, including its parent organizations, subsidiaries, affiliates, officers, directors, employees, partners, and agents ("Company Indemnitees") harmless from and against any Losses arising out of or in connection with: (i) a claim alleging copyright or other intellectual property infringement relating to any Customer Data and any other data into the Services by you; (ii) any third party claim relating to the Customer Data or relating to your breach of the obligations, set forth in Sections 1 above or otherwise relating to your users use or misuse of the Services; (iii) a claim, which if true, would constitute a material breach by you of your representations or warranties; or (iv) a claim arising from any your gross negligence or willful misconduct of this Agreement.
(c). The foregoing obligations of the indemnifying party are subject to the following by the party seeking indemnification: (i) shall promptly give written notice of the claim to the indemnifying party; (ii) give the indemnifying party sole control of the defense and settlement of the claim; (iii) provide the indemnifying party all available information and assistance; and (iv) not compromise or settle such claim that imposes liability on or admits any wrongdoing without the indemnifying party’s prior written consent.
9. Internet Delays
Company’s Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Company is not responsible for delays, delivery failures, or other damage resulting from such problems.
10. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Confidential Information
The Parties acknowledge the likely disclosure to each other during this Agreement of Confidential Information, the secrecy of which provides the Party an important commercial benefit. Each Party agrees to protect the secrecy of such information and not to use such information other than in furtherance of this Agreement, nor to disclose such Confidential Information to any other person or entity, other than to its employees or agents who need access to such information, without the written consent of the other Party. All Confidential Information shall remain the exclusive property of the disclosing Party. Confidential Information does not include information that (i) was available to a Party free of any confidentiality obligation to the other Party at the time of disclosure; (ii) is made available by a Party expressly without restriction on disclosure; (iii) is or becomes available to the public on or after the date of this Agreement (other than through prohibited disclosure by a Party); or (iv) is developed by a Party independently of such Confidential Information. If a Party is compelled by law to disclose Confidential Information of the other Party, it shall provide the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure.
No joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this agreement or use of the Service. The parties agree that in the event of a dispute or alleged breach of this Agreement, they will work together in good faith first to resolve the matter internally by negotiating between higher levels of management who have the authority to settle such controversy. If there is no resolution, the parties will submit the dispute to binding arbitration; however, the parties may agree to use a mutually agreed upon non-binding mediation prior to resorting to arbitration. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING INVOLVING AN AGREEMENT RELATED DISPUTE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Company and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Any amendment to the Agreement must be made in written form and signed by duly authorized representatives of each Party. All notices under this Agreement shall be in writing, sent to the addresses set forth in the Agreement, sent via personal delivery (courier service), facsimile or e-mail. Notices will be effective upon confirmed signature and delivery if sent via personal delivery; or upon written confirmation receipt if sent via facsimile or e-mail.