BEANSTALK ENGAGE MASTER SOFTWARE SUBSCRIPTION AGREEMENT
(Revised: May 1, 2016)
THIS SUBSCRIPTION AGREEMENT (“SUBSCRIPTION AGREEMENT”) GOVERNS YOUR TRIAL OF THE MODULES. THE LENGTH OF THE TRIAL PERIOD WILL BE DETAILED IN A SEPARATE APPROVED STATEMENT OF WORK. IF YOU CONTINUE USING OUR MODULES, THIS SUBSCRIPTION AGREEMENT WILL ALSO GOVERN YOUR ONGOING USE OF THOSE MODULES. BY ACCEPTING THIS SUBSCRIPTION AGREEMENT, BY LOGGING IN INDICATING YOUR ACCEPTANCE, BY EXECUTING A MASTER SERVICES AGREEMENT THAT REFERENCES THIS SUBSCRIPTION AGREEMENT OR BY EXECUTING A STATEMENT OF WORK THAT REFERENCES THIS SUBSCRIPTION AGREEMENT, YOU AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT. IF YOU ARE ENTERING INTO THIS SUBSCRIPITION AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS SUBSCRIPTION AGREEMENT AND MAY NOT USE THE MODULES. Any conflict or inconsistency between the provisions of this Subscription Agreement, a Master Services Agreement and/or any Approved Statement of Work shall be resolved by giving precedence to the Approved Statement of Work, then to the executed Master Services Agreement and then to this Subscription Agreement. You may not access the Modules if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Modules for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Subscription Agreement was last updated March 1, 2015. It is effective between You and Us as of the date of You accepting this Subscription Agreement.
3.1. PROVISION OF MODULES.
We shall make the Modules available to You pursuant to this Subscription Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. SOFTWARE SUBSCRIPTIONS.
Unless otherwise specified in the applicable Order Form, Modules are purchased as SaaS subscriptions. The software is delivered via SaaS; no title to any product is given or transferred to You.
4.1. ACQUISITION OF THIRD-PARTY PRODUCTS AND MODULES.
We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
4.2. THIRD-PARTY APPLICATIONS AND YOUR DATA.
If You install or enable Third-Party Applications for use with Modules, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data and Registration Data as required for the interoperation of such Third-Party Applications with the Modules. We shall not be responsible for any disclosure, modification or deletion of Your Data or Registration Data resulting from any such access by Third-Party Application providers.
5.1. MODULE FEES.
Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of Module subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Module subscription fees are based on monthly periods that begin on the first day of each month, paid in advance for each monthly anniversary at the end of the prior month. If the Module Subscription start date begins in the middle of a monthly period, the Module Subscription will be charged on a pro-rated basis by taking the monthly subscription fee and dividing by the number of days in the starting month. Prorated fees are charged on the actual start date.
5.2. CONSUMABLES FEES.
The fees for consumables when not bundled as part of a Module subscription, as defined in an Order Form, are billed in arrears at the end of the month when the next month’s service and software subscription fees are being billed in advance unless alternative arrangements have been made in a Master Services Agreement or Approved Statement of Work.
6. PROPRIETARY RIGHTS.
6.1. RESERVATION OF RIGHTS.
Subject to the limited rights expressly granted hereunder, We reserve all rights, titles and interests, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You shall not (i) permit any third party to access the Modules except as permitted herein or in an Order Form, (ii) create derivate works based on the Modules, (iii) copy, frame or mirror any part or content of the Modules, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Modules, or (v) access the Modules in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Modules.
6.3. OWNERSHIP OF YOUR DATA.
As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data, the Campaign & Reporting Data, Client Content, Client Marks and Digital Assets. We exclusively own all rights, title and interest to Aggregated & Anonymized Data and the Marketing Campaigns & Ideas. You grant to Us an irrevocable, perpetual non-exclusive, fully paid, worldwide license to use, copy, store, retain, transmit, reformat, modify, edit, translate, excerpt, and adapt the Client Content, Client Marks and Digital Assets as necessary or appropriate to fulfill Our obligations under this Subscription Agreement or any Approved Statement of Work.
We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Modules any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Modules.
We may endorse any product or service we provide, and any output from either of them, with Our branding (such as, without limitation, a “powered by Beanstalk Engage” logo or “this email sprouted by Beanstalk Engage”).
You shall not make, or attempt to make, any adaptations, modifications, or variations of any software produced by Us.
You shall not decode, disassemble, decompile, reverse translate, or reverse engineer or attempt to decode, disassemble, decompile, reverse translate, or reverse engineer any software produced by Us.
You shall not rent, lend, assign, or transfer any software and/or Modules produced by Us pursuant to this Subscription Agreement and/or an Approved Statement of Work, in whole or in part. Any such attempted rental, lending, assignment, or transfer will be void.
8.1. OUR WARRANTIES.
We warrant that We have full power and authority to grant the licenses and rights granted under this Subscription Agreement or any Approved Statement of Work without the consent or approval of any third party. EXCEPT AS SET FORTH IN THIS SECTION, WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The services and Modules are warranted only to You, and You shall not extend any warranties for or on behalf of Us to any customer, end user, resellers, or any other third parties.
8.2. MUTUAL WARRANTIES.
Each party represents and warrants that (i) it has the legal power to enter into this Subscription Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
8.3 LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOOD WILL, LOSS OF REVENUE OR PROFIT, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
IN ANY EVENT, OUR ENTIRE LIABILITY UNDER THIS SUBSCRIPTION AGREEMENT OR ANY APPROVED STATEMENT OF WORK HEREUNDER WILL BE LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO US PURSUANT TO THE APPLICABLE APPROVED STATEMENT OF WORK OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING SUCH LIABILITY EVENT.
8.4 ACTS AND OMISSIONS
Without limiting the generality of Sections 8.3, We shall not be liable for any claim which arises, in whole or in part, from:
(a) any failure, downtime, or lack of capacity of any telecommunications network;
(b) any act or omission of any third-party;
(c) any act or omission of You; or
(d) any other factor beyond Our reasonable control
NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND WITH TO THE OTHER PARTY WITH RESPECT TO SERVICES PROVIDED UNDER THIS SUBSCRIPTION AGREEMENT, COMPONENTS, DOCUMENTATION, HARDWARE, SOFTWARE, MATERIALS OR OTHER WORK PRODUCT PROVIDED HEREUNDER. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE.
We shall use Reasonable Efforts to deliver each Message, web page, or other data transmission to the intended End User as quickly as possible. However, the time it takes to actually deliver any particular Message, web page, or other data transmission and whether the intended End User actually receives the Message, web page, or other data transmission depends on a number of factors, many of which are not within Our direct control. Accordingly, We make no warranties, express or implied, with respect to whether any Message, web page, or other data transmission will actually reach the intended End User or the time it may take any Message, web page, or other data transmission to reach the intended End User.
8.7 SCRIPTS AND MESSAGES.
If You provide to Us any Content Asset, script or Message used by Us to perform hereunder (such script or Message and any amendments or modifications thereof, a “Script”), You warrant that:
(a) as to each Content Asset provided to Us, the Content Asset does not infringe any rights (including Intellectual Property Rights) of any third-party or give rise to a right of action by any third-party.
(b) the content of the Script and Our use of the Script does not infringe any rights (including Intellectual Property Rights) of any third-party or give rise to a right of action by any third-party;
(c) the Script does not contain any material that is defamatory, offensive, abusive, obscene, menacing, unlawful, harmful, threatening, harassing, or which could incite violence or discrimination based on race, gender, color, religious belief, sexual orientation, or disability;
(d) You have, with respect to each person named, represented, or otherwise identified in the Script, obtained all permission, authority, and licenses necessary or appropriate to permit You and Us use each such person’s name, representation, or identification; and
(e) the Script strictly complies with all applicable law (including, without limitation, all treaties and all domestic and foreign statutes) and regulations.
8.8 PERSONALLY IDENTIFIABLE INFORMATION.
If You provide to Us any Personally Identifiable Information for the purposes of providing You with products or services (including, without limitation, for record keeping, administrative, reporting, billing, or internal business purposes), You warrants that:
(a) all Personally Identifiable Information and all other information supplied by You or used in connection with products or services provided to You by Us was obtained in strict compliance will all applicable law (including, without limitation, all treaties and all domestic and foreign statutes) and regulations; and
(b) You have obtained all consents which are necessary or appropriate with respect to all Personally Identifiable Information and all other information supplied by You or used in connection with products or services provided to You by Us.
8.9 SUBSCRIPTION LISTS.
If a subscription list should become part of any Project:
(a) the only list of subscribers, opt-ins, and opt-outs must be held and maintained by Us. You shall not keep or maintain any separate or independent list of subscribers, opt-ins, or opt-outs; and
(b) any subscriber, opt-in, or opt-out information provided to Us by You must be complete, accurate, and comply with all applicable laws and regulations.
9.2. RETURN OF YOUR DATA.
Upon request by You made within 30 days after the effective date of termination of a Module’s subscription, We will make available to You for download a file of Your Data in an MS Excel, MS Access, or comma separated value (.csv) format along with Your Digital Assets in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
9.3. SURVIVING PROVISIONS.
The rights, obligations, representations, and warranties contained in Sections
5, 6, 8.3, 8.5, 8.8, 9.2, 11, 12.3, 12.4, and 15 through 22 of this Subscription Agreement will survive any termination or expiration of this Subscription Agreement.
12.1. TRANSMISSION OF PERSONALLY IDENTIFIABLE INFORMATION.
You shall transmit Personally Identifiable Information and other sensitive data only by means of Secure Transmission. Notwithstanding any other provision of this Subscription Agreement or Approved Statements of Work hereunder, We shall have no obligation to protect from unauthorized disclosure any data transmitted to Us by You or Your Affiliate by any means other than Secure Transmission.
12.2 AUTHORIZED USERS LIST.
At all times, You shall keep a current list of Authorized Users and shall provide such list to Us immediately upon any change in the list. You acknowledge that We are under no obligation to respond or act on the directions or instructions of any employee, agent, contractor or Your representative of other than an Authorized User.
As to any Sweepstakes, which You may include in a Message and/or cause to interact with the Modules, You shall ensure that the Sweepstakes complies in all respects with all applicable law and regulation. You shall defend, indemnify, and hold Us harmless, Our officers, directors, employees, agents, and Our Affiliates from and against any claims, actions or demands, losses, liabilities, including, without limitation, all reasonable attorney’s fees and costs, made by any third party due to or resulting from such Sweepstakes.
12.4 CONTENT ASSETS.
You shall ensure that You are the sole owner of all rights in and to any and all Content Assets provided to Us and each such Content Asset does not infringe on any Intellectual Property Right of Us, Our Affiliates, or of any third party.
12.5 LEGAL USE.
You shall only access, use, or permit the use of the Modules and/or send Messages in strict compliance will all applicable law (including, without limitation, all treaties and all domestic and foreign statutes) and regulations.