Master Subscription Agreement
CONTACTMONKEY SOFTWARE-AS-A-SERVICE MASTER SUBSCRIPTION AGREEMENT
This ContactMonkey software-as-a-service master subscription agreement (the “Master Subscription Agreement”) forms a binding legal agreement between ContactMonkey Inc. (“ContactMonkey”) and Customer (as defined below). This Master Subscription Agreement governs Customer’s access to and use of the ContactMonkey Solution (as defined below). By using the ContactMonkey Solution in any way, or executing an Order Form (as defined below), Customer hereby agrees to this Master Subscription Agreement. ContactMonkey and Customer together the “Parties” and each a “Party”.
Capitalized terms used in this Agreement (including, for greater certainty, the Order Form, unless the context indicates otherwise) have the meaning ascribed to them in the preamble or in this Section 1 as follows:
(a) “Action” has the meaning set out in Section 10(a)(i).
(b) “Aggregated Data” has the meaning set out in Section 3(a).
(c) “Agreement” has the meaning set out in the applicable Order Form.
(d) “Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
(e) “Anti-Spam Laws” means Canada’s Anti-Spam Legislation and the regulations thereunder and any other Applicable Laws that regulate the same or similar subject matter.
(f) “Applicable Laws” means any domestic or foreign law, rule, statute, subordinate legislation, regulation, by-law, order, ordinance, protocol, code, guideline, treaty, policy, notice, direction or judicial, arbitral, administrative, ministerial or departmental judgment, award, decree, treaty, directive, or other requirement or guideline published or in force at any time during the Term which applies to or is otherwise intended to govern or regulate any Person (including any party), property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any Governmental or Regulatory Authority.
(g) “Business Hours” means 8:00 a.m. – 5:00 p.m. EST Monday to Friday, excluding public holidays in Toronto, Ontario, Canada.
(h) “Confidential Information” has the meaning set out in Section 8(a).
(i) “ContactMonkey Indemnitee” has the meaning set out in Section 10(b).
(j) “ContactMonkey Property” has the meaning set out in Section 3(b).
(k) “ContactMonkey SaaS Services” means: (i) services through which ContactMonkey hosts and makes available the hosted solution as described in an Order Form; (ii) any component or Modification of the services referred to in (i); and (iii) the Support Services.
(l) “ContactMonkey Software” has the meaning set out in Section 2(d).
(m) “ContactMonkey Solution” means the ContactMonkey SaaS Services and the ContactMonkey Software.
(n) “Customer” has the meaning set out in the applicable Order Form.
(o) “Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads or enters into, transmits to, or makes available to the ContactMonkey SaaS Services, including but not limited to Personal Information. The tern “Customer Data” does not include Aggregated Data or any other ContactMonkey Property.
(p) “Customer Indemnitee” has the meaning set out in Section 10(a)(i).
(q) “Customer Systems” has the meaning set out in Section 2(d).
(r) “Customer User Account” has the meaning set out in Section 5(a).
(s) “Data Processing Addendum” means the ContactMonkey’s data processing addendum located at https://www.contactmonkey.com/dpa.
(t) “Discloser” has the meaning set out in Section 8(a).
(u) “Documentation” means documentation relating to the operation and use of the ContactMonkey Solution that are provided by the ContactMonkey to Customer under this Agreement, as updated by ContactMonkey from time to time.
(v) “Feedback” has the meaning set out in Section 3(c).
(w) “Fees” has the meaning set out in Section 7(a).
(x) “Force Majeure Event” has the meaning set out in Section 15(e).
(y) “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity.
(z) “Initial Term” has the meaning set out in Section 12(a).
(aa) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(bb) “Loss” or “Losses” means any and all losses, damages, claims, Actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(cc) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(dd) “Order Form” means any order form that references this Master Subscription Agreement and is executed by both Parties.
(ee) “Permitted User(s)” has the meaning set out in Section 5(a).
(ff) “Permitted Purpose” has the meaning in Section 2(a).
(gg) “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
(hh) “Personal Information” has the meaning in the Data Processing Addendum.
(ii) “Privacy Breach” has the meaning in the Data Processing Addendum.
(jj) “Privacy Laws” has the meaning in the Data Processing Addendum.
(kk) “Processing” has the meaning in the Data Processing Addendum.
(ll) “Prohibited Data” has the meaning in Section 4(b).
(mm) “Proposal” has the meaning in the Order Form.
(nn) “Recipient” has the meaning set out in Section 8(a).
(oo) “Term” has the meaning set out in Section 12(a).
(pp) “Website” means any websites used by ContactMonkey to provide the ContactMonkey SaaS Services, including the website(s) located at www.ContactMonkey.com.
2. The ContactMonkey Solution
(a) Provisioning of the ContactMonkey Solution. ContactMonkey will make the ContactMonkey SaaS Services available to Customer and its Permitted Users on the terms and conditions set out in this Agreement, solely for the Permitted Purpose, during the Term. Customer may access and use the ContactMonkey Solution solely for Customer’s internal business purposes and in accordance with Applicable Laws (the “Permitted Purpose”).
(b) Restrictions on Use. Customer will not itself, and will not permit others (including but not limited to any Permitted Users) to:
(i) sub-license, sell, rent, lend, lease or distribute the ContactMonkey Solution or any Intellectual Property Rights therein, or otherwise make the ContactMonkey Solution available to any third parties other than Permitted Users;
(ii) use the ContactMonkey Solution to permit timesharing, service bureau use or commercially exploit the ContactMonkey Solution;
(iii) use or access the ContactMonkey Solution:
(A) in violation of any Applicable Law or Intellectual Property Right; or
(B) in a manner that threatens the security or functionality of the ContactMonkey Solution;
(iv) use the ContactMonkey Solution to create, collect, transmit, store, use or process any Customer Data that:
(A) Customer does not have the lawful right to create, collect, transmit, store, use or process;
(B) contains any Prohibited Data;
(C) contains unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam”, “chain letters,” “pyramid schemes,” or any other form of solicitation that is not expressly requested by the recipient;
(D) violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity);
(E) is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive to another’s privacy, hateful, racially or ethnically objectionable, encourages criminal behaviour, gives rise to civil liability, or is otherwise objectionable; or
(F) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(v) Modify the ContactMonkey Solution;
(vi) reverse engineer, de-compile or disassemble the ContactMonkey Solution;
(vii) remove or obscure any proprietary notices or labels on the ContactMonkey Solution, including brand, copyright, trademark and patent or patent pending notices;
(viii) access or use the ContactMonkey Solution for the purpose of building a similar or competitive product or service;
(ix) perform any vulnerability, penetration or similar testing of the ContactMonkey Solution;
(x) use any means to discover the source code of the ContactMonkey Solution or to discover the trade secrets in the ContactMonkey Solution or otherwise circumvent any functionality that controls access to or otherwise protects the ContactMonkey Solution;
(xi) use the ContactMonkey Solution to send or cause or permit to be sent any unlawful marketing, sales or commercial messages, including commercial electronic messages defined under Anti-Spam Laws, to any Person; or
(xii) use or access the ContactMonkey Solution in a manner that is contrary to any additional restrictions set out in the Order Form or for any purpose or in any manner not expressly permitted in this Agreement.
(c) Suspension of Access. Modifications. ContactMonkey may, from time to time and in its discretion without limiting any of its other rights or remedies at law or in equity under this Agreement:
(i) suspend Customer’s access to or use of the ContactMonkey Solution:
(A) for scheduled maintenance, which ContactMonkey will use reasonable efforts to conduct outside of Business Hours;
(B) due to a Force Majeure Event;
(C) if Customer fails to pay any amounts due hereunder, and such failure continues more than within five days after ContactMonkey’s delivery of written notice thereof;
(D) if ContactMonkey has reasonable grounds to believe that Customer is utilizing the ContactMonkey Solution for any illegal or disruptive purpose;
(E) to address any emergency security concerns;
(F) if required to do so by a regulatory body or as a result of a change in Applicable Law; or
(G) for any other reason as provided in this Agreement.
Where reasonably practicable in the circumstances and unless prohibited by Applicable Law, ContactMonkey will, prior to suspending the ContactMonkey Solution, inform Customer of the concern as soon as reasonably possible, however, in the event the suspension is due to an emergency security concern or required by a regulatory body or Applicable Law, such advance notice may not be possible.
(ii) make Modifications to the ContactMonkey Solution, provided that such Modifications do not materially decrease the functionality of the ContactMonkey SaaS Services as outlined in the Proposal.
(d) Downloadable Software. Use of the ContactMonkey SaaS Services may require or include use of downloadable proprietary email software applications (each a “ContactMonkey Software”) to be run directly on Customer’s systems (“Customer Systems”). As a result, ContactMonkey Software, including such software, may automatically download and install updates and upgrades from time to time from ContactMonkey. These updates are designed to improve, enhance and further develop the ContactMonkey SaaS Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. Customer consents to the installation of ContactMonkey Software, including updates and upgrades (and authorizes ContactMonkey to deliver these to Customer) as part of Customer’s use of the ContactMonkey SaaS Services. Customer acknowledges that ContactMonkey Software causes Customer Systems to communicate with ContactMonkey for the purposes described above. Notifications will be made in advance of any upcoming significant releases, maintenance or other event that may affect the ContactMonkey SaaS Services. Some emergency updates may be communicated after they are delivered. Customer, at its sole expense, agrees to provide compatible Customer Systems for the activation of ContactMonkey Software and is responsible for upgrading and configuring Customer Systems to remain compatible with any minimum system requirements as required by ContactMonkey, during the Term. Customer is required to accept all patches, bug fixes and updates made by or on behalf of ContactMonkey to the ContactMonkey SaaS Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, ContactMonkey grants to Customer a revocable, non-exclusive, non-transferrable, non sublicensable, limited license to use and run the ContactMonkey Software and Documentation solely for the purpose of facilitating access to certain functionalities of the ContactMonkey SaaS Services, during the Term.
3. Ownership; Reservation of Rights
(a) Except as expressly set forth in this Agreement, nothing in this Agreement assigns or grants to ContactMonkey any right, title or interest including any Intellectual Property Rights in or to Customer Data. Customer shall maintain, protect, and make backups of Customer Data. To the extent permitted by Applicable Law, ContactMonkey will not be liable for any failure to store, or for loss or corruption of Customer Data. Customer grants to ContactMonkey:
(i) a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up licence during the Term to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to provide the ContactMonkey Solution; and
(ii) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to:
(A) improve and enhance the ContactMonkey Solution and its other offerings; and
(B) produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). ContactMonkey may use, Process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer, including to improve and enhance the ContactMonkey Solution and for other ContactMonkey offerings, provided that in all use instances ContactMonkey does not attempt to re-identify the identity of any individual, Permitted User or Customer, as applicable, as the source of such Aggregated Data. Aggregated Data is not Customer Data and is not Customer’s Confidential Information.
(b) ContactMonkey or its licensors retain all right, title and interest including all Intellectual Property Rights in and to:
(i) the ContactMonkey Solution;
(ii) anything used, developed or delivered by or on behalf of ContactMonkey under this Agreement;
(iii) all other ContactMonkey’s Confidential Information, including but not limited to, any reports generated from the ContactMonkey Solution or any Aggregated Data; and
(iv) any Modifications to the foregoing (i), (ii) and (iii),
(collectively “ContactMonkey Property”).
(c) Customer grants to ContactMonkey and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the ContactMonkey Solution, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of ContactMonkey’s or its Affiliates’ services (“Feedback”). Nothing in this Agreement will restrict ContactMonkey’s right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to Customer or Permitted Users and without any obligation to Customer or any Permitted User. ContactMonkey is not obligated to use any Feedback.
(d) All rights not expressly granted by ContactMonkey to Customer under this Agreement are reserved.
(a) The Processing of Personal Information provided to ContactMonkey by Customer under this Agreement will be subject to the obligations set out in the Data Processing Addendum.
(b) Customer will not upload to the ContactMonkey Solution or otherwise submit or make accessible to ContactMonkey any personal health information or any financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social insurance numbers, health card numbers) or other types of sensitive data that is subject to specific or elevated data protection requirements (collectively, “Prohibited Data”).
(c) ContactMonkey will, on not less than an annual basis, obtain from a third-party audit firm a Service Organization Control (SOC) 2 type II Report (or a comparable report) (“SOC Report”) on its systems examining logical security controls, physical security controls, and systems availability as related to the ContactMonkey SaaS Services. ContactMonkey will promptly provide to Customer a copy of its then-current SOC Report upon Customer’s written request. The SOC Report is ContactMonkey’s Confidential Information.
5. Customer User Account; Customer Responsibilities
(a) In order for Customer to access and use the ContactMonkey SaaS Services ContactMonkey will issue one or more accounts (each, a “Customer User Account”) to Customer for use by one or more individuals who are employees of Customer that Customer wishes to have access to and use of the ContactMonkey SaaS Services (each, a “Permitted User”). Customer will not allow any Permitted User to share its Customer User Account with any other person.
(b) Customer will promptly notify ContactMonkey of any actual or suspected unauthorized use of the ContactMonkey SaaS Services. ContactMonkey reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.
(c) Customer is responsible for providing the equipment and services that Customer needs to access, download, install and use the ContactMonkey SaaS Services. ContactMonkey does not guarantee that the ContactMonkey Solution is accessible on any particular equipment or device or with any particular software or service plan.
(d) To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the ContactMonkey Solution to Customer’s authorized users and shall maintain a procedure external to the ContactMonkey Solution for reconstruction of lost or altered files, data or programs.
(e) Customer shall ensure that any and all access and use of the ContactMonkey Solution is in compliance with this Agreement and Applicable Laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to Customer (including applicable sanctions, privacy, data protection and anti-spam laws).
(f) Customer is responsible for identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use ContactMonkey Solution. Customer shall ensure that all Permitted Users comply with this Agreement.
6. Support Services and Service Levels
(a) Support Services. Customer will generally have access to ContactMonkey’s technical support services (“Support Services”) from 9am to 5pm eastern time, on Monday to Friday through email at firstname.lastname@example.org, or as otherwise agreed to by the Parties in writing.
(b) Service Levels. ContactMonkey will use commercially reasonable efforts to provide the ContactMonkey SaaS Services available 24 hours per day, seven (7) days per week, excluding downtime or suspension of the ContactMonkey SaaS Services for scheduled maintenance (which ContactMonkey will use reasonable efforts to conduct outside of Business Hours), unavailability caused by Customer or any software, hardware or service not provided by ContactMonkey, downtime or any unavailability caused by circumstances beyond ContactMonkey’s reasonable control, including, for example, Force Majeure Event, Internet service provider failure or delay or denial of service attack. ContactMonkey may revise the service levels in this Agreement or the features and functions of the ContactMonkey Solution at any time, provided no such revision materially reduces features or functionality provided pursuant to an Order Form.
7. Fees and Payment
(a) Fees. Customer will pay to ContactMonkey the fees described in an applicable Order Form (“Fees”). Unless otherwise noted on an Order Form, all Fees are identified in United States dollars, are non-refundable and are payable in advance.
(b) Usage Limits. ContactMonkey SaaS Services may be subject to usage limits specified in an Order Form, the Documentation or within the ContactMonkey Solution. If Customer exceeds a usage limit, ContactMonkey may: (a) bill Customer for such usage and Customer will pay the additional fees in accordance with this Agreement; (b) work with Customer to seek to reduce Customer’s usage so that it conforms to that limit; or (c) request Customer to execute an Order Form for additional quantities of the applicable ContactMonkey SaaS Services.
(c) Invoicing. ContactMonkey will prepare and send to Customer, at the then-current contact information on file with ContactMonkey, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 calendar days of the invoice date.
(d) Disputed Invoices or Charges. If Customer believes ContactMonkey has charged or invoiced Customer incorrectly, Customer must contact ContactMonkey no later than 30 days after having been charged by ContactMonkey or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
(e) Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Without limiting ContactMonkey other rights, ContactMonkey may suspend Customer’s access to or its performance of the ContactMonkey Solution, until all due and undisputed amounts are paid in full, if Customer if Customer fails to pay any amounts due hereunder, and such failure continues more than within five days after ContactMonkey’s delivery of written notice.
(f) Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including applicable interest and penalties payable in connection with the transactions contemplated in connection with this Agreement), other than taxes based on the net income or profits of ContactMonkey.
(g) Suspension. Any suspension of the ContactMonkey Solution by ContactMonkey pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
(h) Payment Processor. ContactMonkey does not store, process or transmit any of Customer’s credit card data but relies entirely on third party processors such as Stripe, Inc. to handle these functions. Payments due for the ContactMonkey Solution are subject to the terms and conditions of the applicable payment processor. If Customer does not agree to such payment processor’s terms and conditions, then Customer shall not use the ContactMonkey Solution and this Agreement shall automatically terminate forthwith. ContactMonkey is not responsible for changes in currency exchange rates or any processing fees charged by any payment processors. Customer shall pay and be responsible for all such third party payment processor charges.
8. Confidential Information
(a) Definitions. For the purposes of this Agreement, a Party or its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer, Customer’s Confidential Information includes Customer Data and where Discloser is ContactMonkey, ContactMonkey’s Confidential Information includes the ContactMonkey Property. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not:
(i) disclose Confidential Information of the Discloser:
(A) in the case of Customer to any person, except to its Permitted Users that have a “need to know” for the purposes of receiving the ContactMonkey Solution and that have entered into written agreements no less protective of such Confidential Information than this Agreement; or
(B) in the case of ContactMonkey to ContactMonkey’s employees, independent contractors, advisors, consultants, agents and its Affiliates, that have a “need to know” for the purposes of providing the ContactMonkey Solution and that have entered into written agreements no less protective of such Confidential Information than this Agreement and to its subcontractors and contractors to provide the ContactMonkey Solution;
(ii) use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality. Notwithstanding Section 8(b), the Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of ContactMonkey, to potential assignees, acquirers or successors of ContactMonkey if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of ContactMonkey.
(d) Injunction and other equitable relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(e) Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed in the Data Processing Addendum) of the other Party in its possession or control within a reasonable amount of time in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, ContactMonkey may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
9. Warranty; Disclaimer
(a) Customer Warranty. Customer represents and warrants to, and covenants with ContactMonkey that: (i) it shall only send or cause or permit to be sent emails, text messages or other commercial electronic messages to recipients from whom Customer has obtained all necessary consents and provided all necessary notices as required by and in compliance with Applicable Laws, including Anti-Spam Laws; and (ii) the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by Applicable Laws, to enable ContactMonkey to provide the ContactMonkey Solution, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to ContactMonkey and to or from all applicable third parties. Customer acknowledges and agrees that it shall be the sender of any electronic messages sent pursuant to this Agreement. Any template, sample or other notices provided to Customer by ContactMonkey pursuant to this Agreement or otherwise are for reference only and ContactMonkey does not represent that such templates, samples or notices are sufficient to meet Customer’s obligations under Applicable Laws.
(b) ContactMonkey represents, warrants and covenants that: (i) it has the full corporate right, power and authority to enter into the Agreement; and (ii) it shall comply with all Applicable Laws applicable to ContactMonkey in performance of its obligations hereunder.
(c) GENERAL DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 9(B), CONTACTMONKEY DOES NOT WARRANT THAT THE CONTACTMONKEY SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CONTACTMONKEY SOLUTION. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE CONTACTMONKEY SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CONTACTMONKEY TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED IN SECTION 9(B), CONTACTMONKEY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
(d) CONTACTMONKEY SHALL NOT BE LIABLE FOR THE BUSINESS DECISIONS THAT CUSTOMER MAKES AND IMPLEMENTS THROUGH THE CONTACTMONKEY SOLUTION, INCLUDING WITHOUT LIMITATION VIA EMAILS, TEXT, SMS OR ANY OTHER ELECTRONIC COMMUNICATION FUNCTIONALITY PROVIDED THROUGH THE CONTACTMONKEY SOLUTION. WHILE THE SENDING OF TEXT MESSAGES FEATURES MAY BE USED BY CUSTOMER FOR EMERGENCY ALERTS OR OTHER REASONS, CONTACTMONKEY IS NOT LIABLE IF CUSTOMER USES THE CONTACTMONKEY SOLUTION TO SEND COMMERCIAL OR MARKETING EMAILS, TEXTS OR OTHER ELECTRONIC COMMUNICATION OR IF THOSE EMAILS, TEXT MESSAGES OR OTHER ELECTRONIC COMMUNICATIONS VIOLATE ANTI-SPAM LAWS. CUSTOMER IS WHOLLY RESPONSIBLE FOR ALL COMMUNICATIONS TRANSMITTED USING THE CONTACTMONKEY SOLUTION, INCLUDING FOR ANY CLAIMS MADE BY ANY OF CUSTOMER’S EMPLOYEES RELATING TO SUCH COMMUNICATIONS. CONTACTMONKEY SHALL NOT BE LIABLE FOR ANY DELAYS OR ERRORS IN SUCH TEXT MESSAGES OR ANY OTHER ELECTRONIC COMMUNICATIONS SENT BY OR ON BEHALF OF CUSTOMER USING THE CONTACTMONKEY SOLUTION. CUSTOMER BEARS ALL RESPONSIBILITY, AND CONTACTMONKEY WILL HAVE NO LIABILITY FOR DECISIONS BASED ON ANY PROVIDED DATA, OR ANY OTHER INFORMATION PROVIDED TO OR BY CUSTOMER VIA THE CONTACTMONKEY SOLUTION OR BY CONTACTMONKEY.
(a) ContactMonkey Indemnity.
(i) ContactMonkey will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses finally awarded in any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) allegation that the ContactMonkey SaaS Solution infringe any third party Intellectual Property Right in Canada and the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any ContactMonkey SaaS Services into, or any combination, operation, or use of any ContactMonkey SaaS Services with, any products or services not provided or authorized by ContactMonkey; (B) Modification of any ContactMonkey SaaS Services other than by ContactMonkey or with ContactMonkey’s express written approval; (C) unauthorized use of the ContactMonkey SaaS Services; or (D) Customer’s indemnity in Section 10(b). This Section 10(a) states the ContactMonkey’s sole liability to, and the Customer Indemnitees exclusive remedy against, ContactMonkey for any third party claim described in this section.
(ii) If the ContactMonkey SaaS Services are, or in ContactMonkey’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third party Intellectual Property Right, or if Customer’s use of any ContactMonkey SaaS Services is enjoined or threatened to be enjoined, ContactMonkey may, at its option and sole cost and expense:
(A) obtain the right for Customer to continue to use the affected ContactMonkey SaaS Services materially as contemplated by this Agreement;
(B) modify or replace ContactMonkey SaaS Services, in whole or in part, to seek to make the ContactMonkey SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute ContactMonkey SaaS Services under this Agreement; or
(C) if ContactMonkey determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate the provision of the ContactMonkey Solution, in whole or in part, and require Customer to immediately cease all use of the terminated ContactMonkey Solution or part or feature thereof and pro rata refund of any unused prepaid Fees for the terminated ContactMonkey Solution, if applicable.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
(b) Customer Indemnity. Customer will defend, indemnify and hold harmless ContactMonkey, and its officers, directors, employees and agents (each, a “ContactMonkey Indemnitee”) from and against any and all Losses incurred by a ContactMonkey Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a ContactMonkey Indemnitee) that arise from or relate to: (i) Customer Data; (ii) claims made by employees and clients of Customer, or Permitted Users, to the extent not arising out of ContactMonkey’s gross negligence, willful misconduct, or fraud; (iii) the operation of Customer’s business; and (iv) arising out of Customer’s, Permitted Users’ or any Person’s use of or reliance on any text, SMS or other electronic communication functionality of the ContactMonkey Solution.
(c) Indemnification Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying Party of any liability hereunder (except to the extent the indemnifying Party has suffered actual material prejudice by such failure); (b) the indemnifying Party having sole control of the defense or settlement of any claim or suit (provided the indemnifying Party may not settle any claim without the indemnified Party’s consent unless it unconditionally releases the indemnified Party of all liability); and (c) the indemnified Party (at the indemnifying Party’s expense) reasonably cooperating with the indemnifying Party to facilitate the settlement or defense of any claim or suit.
11. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. SUBJECT TO SECTIONS 11(C) AND 11(D), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE CONTACTMONKEY SAAS SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
(b) TYPE. SUBJECT TO SECTIONS 11(C) AND 11(D), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (1) SAVINGS, (2) PROFIT, (3) DATA, (4) USE, OR (5) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
(c) EXCEPTIONS. SECTIONS 11(A) AND 11(B) WILL NOT APPLY TO LIMIT: (I) EITHER PARTY’S LIABILITY OR OBLIGATIONS PURSUANT TO SECTIONS 10 (A)(I) and 10(B) (INDEMNITIES); (II) CUSTOMER’S OBLIGATION TO PAY ANY FEES PAYABLE TO CONTACTMONKEY PURSUANT TO THIS AGREEMENT; (III) CONTACTMONKEY’S LIABILITY FOR CLAIMS IN CONNECTION WITH A PRIVACY BREACH, WHICH IS SUBJECT TO THE LIMIT SET OUT IN SECTION 11(D); (IV) EITHER PARTY’S BREACH OF CONFIDENTIALITY (PROVIDED THAT CONTACTMONKEY’S LIABILITY FOR ANY BREACH OF CONFIDENTIALITY RESULTING IN A PRIVACY BREACH IS SUBJECT TO THE LIMIT SET OUT IN SECTION 11(D)); OR (IV) EITHER PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD.
(d) DATA BREACH CAP. CONTACTMONKEY’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT FOR ALL CLAIMS ARISING IN CONNECTION WITH A PRIVACY BREACH WILL NOT EXCEED TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000.00).
12. Term and Termination
(a) Term. This Agreement will commence on the Effective Date and continue to be in effect for the Initial Term, as set out in the applicable Order Form. The Term will automatically renew for successive periods of 1 year (each a “Renewal Term”), unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term. Initial Term and applicable Renewal Terms, collectively the “Term”.
(b) Termination. A Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, ContactMonkey may terminate this Agreement immediately if: (A) Customer breaches any restrictions on use in Section 2(b); or (B) required by Applicable Law. If this Agreement is terminated by ContactMonkey in accordance with Section 12(b), Customer will remain liable to pay the full Fees outstanding on the effective date of termination. ContactMonkey will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the then current Term. If this Agreement is terminated by Customer pursuant to Section 12(b)(i), ContactMonkey will provide Customer with a pro rata refund of any Fees prepaid by Customer applicable to the period following the effective date of termination.
(c) Effect of Termination. Upon expiration or termination of this Agreement:
(i) Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the ContactMonkey Solution;
(ii) Customer will, as instructed by ContactMonkey, return, delete or destroy ContactMonkey Property in its possession, and certify in writing to the ContactMonkey that the ContactMonkey Property has been returned or deleted or destroyed;
(iii) All Order Forms will also terminate; and
(iv) All Fees due and other amounts due and payable to ContactMonkey are immediately due and are to be immediately paid by Customer to ContactMonkey. No expiration or termination will affect or relieve Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund (except as expressly set out in Section 12(b)).
(d) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Customer Warranty), Section 10 (Indemnities), Section 11 (Limitation of Liabilities), Section 14 (General Provisions) and this Section 12(d) (Survival).
During the Term of this Agreement, ContactMonkey will, at its own expense, maintain and carry industry standard commercial insurance with financially sound and reputable insurers in full force and effect which includes:
(a) Workers’ Compensation and Employers’ Liability – statutory required limits as applicable to ContactMonkey;
(b) Commercial general liability (including product liability) with policy limits of not less than $1 million per occurrence and $2 million general aggregate; and
(c) Cyber insurance in an amount not less than $1 million per occurrence and $2 million in the aggregate covering liabilities for financial loss resulting or arising from acts, errors, or omissions, in connection with the ContactMonkey SaaS Services as well as all costs, including damages it is obligated to pay Customer or any third party, which are associated with any Privacy Breach or loss of Personal Information, regardless of cause.
Upon execution of this Agreement and thereafter upon Customer’s written request, ContactMonkey shall furnish certificates of insurance and any renewals thereof to Customer evidencing such coverages. ContactMonkey shall ensure that the insurance may not be canceled without thirty (30) days prior written notice to Customer.
14. Business Continuity Plan
(a) ContactMonkey shall implement and maintain a business continuity plan appropriate to the nature the ContactMonkey Solution (“Business Continuity Plan”). The Business Continuity Plan will include plans and procedures to recover all critical resources required to provide the ContactMonkey SaaS Services in the event of a disaster or other failure that affects ContactMonkey SaaS Services. ContactMonkey shall annually test its Business Continuity Plan.
(b) Upon request, ContactMonkey will provide Customer with a summary of the then-current Business Continuity Plan. For clarity and avoidance of doubt, the Business Continuity Plan and any summaries thereof are ContactMonkey’s Confidential Information.
15. General Provisions
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent:
(i) if to ContactMonkey, to the following address:
Suite 300, 200 Adelaide St. W.
Toronto, ON M5H 1W7
Attention: Scott Pielsticker (CEO)
and (ii) if to Customer, to the current postal or email address that ContactMonkey has on file with respect to Customer. ContactMonkey may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with ContactMonkey current at all times during the Term.
(b) Assignment. Neither Party may assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of the other Party, except that each Party may assign the Agreement without the consent of the other Party as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions, provided that Customer shall not assign this Agreement to any competitor of ContactMonkey. Any purported assignment or delegation by a Party in violation of this Section will be null and void. ContactMonkey may assign any of its rights or delegate any of its obligations hereunder to its Affiliate without Customer’s consent. Subject to the foregoing, this Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, ContactMonkey may: (i) commence lawsuits to collect unpaid Fees from Customer; and (ii) seek injunctive relief, with respect to a violation of ContactMonkey’s Intellectual Property Rights or Customer’s breach of its confidentiality obligations, in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(d) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
(e) Force Majeure Event. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure Event”), provided such Party gives prompt written notice to the other Party (the “Non-Force Majeure Party”) of the Force Majeure Event and such affected Party exercises all reasonable efforts to eliminate the effects of the Force Majeure Event on this Agreement as soon as possible. If any Force Majeure Event continues for a period longer than 30 days, the Non-Force Majeure Party may terminate this Agreement upon written notice to the other Party.
(f) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(g) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(h) Independent Contractors. ContactMonkey’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of or bind the other Party.
(i) Entire Agreement. This Agreement, including any Order Forms, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(j) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
(k) Customer Lists. ContactMonkey may identify Customer by name and logo as a ContactMonkey customer on ContactMonkey’s website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.
(l) Third Party Communications. The ContactMonkey Solution allows Customer to communicate with an individual or an organization other than ContactMonkey (a “Third Party”). Any communication with a Third Party, including any services and any advice, opinion or information that Customer may obtain by way of such communications through the ContactMonkey Solution, or any payment transaction facilitated or enabled by the ContactMonkey Solution, is between Customer and this Third Party. ContactMonkey is not responsible for the content of these communications and expressly disclaims any responsibility or liability for any claims, losses or damages that may arise as a result of such communications or failure of communications. ContactMonkey reserves the right, but has no obligation, to become involved in any way with any dispute between Customer and another third party arising out of or that is in connection with the ContactMonkey Solution. ContactMonkey is not responsible for the conduct, whether online or offline, of any user of the ContactMonkey Solution.
(m) Communications. ContactMonkey reserves the right, but has no obligation, to review disputes between Customer and other ContactMonkey Solution users. This includes the right to review messages, notes or other content exchanged or posted through the ContactMonkey Solution, based on any reports that ContactMonkey receives alleging the violation of this Agreement through the use of the ContactMonkey Solution, including reports regarding alleged harassment, indecency, and offensive messages.
(n) Communications Not Confidential. ContactMonkey does not guarantee the confidentiality of any communications made by Customer through the ContactMonkey Solution. ContactMonkey does not guarantee the security of data transmitted over the Internet or public networks in connection with Customer’s use of the ContactMonkey Solution.
(o) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
(p) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.