Master Agreement for US (11/2/21)
Effective as of November 2, 2021
CONTENTSTACK MASTER AGREEMENT
BY ACCEPTING THE AGREEMENT, THE ENTITY IDENTIFIED AS “CUSTOMER” IN THE APPLICABLE ORDER FORM (“CUSTOMER”) (WHETHER ONLINE, ELECTRONIC DOCUMENT OR PAPER) AGREES TO THE TERMS AND CONDITIONS OF THIS MASTER AGREEMENT WITH CONTENTSTACK INC. (“CONTENTSTACK”). AS SET FORTH IN SECTION 12.2 BELOW YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THE AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT AND MUST NOT ACCEPT THE AGREEMENT AND MAY NOT USE THE SAAS SERVICES.
1. Key Definitions. “Customer Data” means the content submitted by or for Customer to the SaaS Services purchased or collected and processed by or for Customer using the SaaS Services purchased, excluding Non-Contentstack Applications. “Documentation” means the online knowledgebase digital instructions, on-line help files, technical documentation, parameters, and user manuals made available by Contentstack for the SaaS Services, as updated from time to time. “Law” refers to any applicable statute, regulation, rule, ordinance or ruling by a national, federal, state, provincial or local government. “Onboarding” means consultation and training offered by Contentstack as set forth in an applicable Order Form. “Non-Contentstack Applications” means a Web-based, mobile or offline software application or service, or service that is provided by Customer or a third party and interoperates with a SaaS Service, including, for example, an application that is developed by or for Customer, a third party service that a customer may have access to, subscribe to, or obtain a license to. “Order Form” refers to an online, electronic or paper form issued by Contentstack containing the terms of payment and specifications of the SaaS Service provided under this Agreement detailing fees, deliverables and agreeing to be bound by other related terms, including these Agreement terms, agreed to by both Customer and Contentstack. An Order Form shall be issued pursuant to the terms and conditions of this Agreement, shall require that the Customer agree to be bound by the terms of this Agreement, and shall be executed by Contentstack and Customer. The term “SaaS Service” or “SaaS Services” refers to the Contentstack Software-as-a-SaaS Service or Platform-as-a-SaaS Service services subscriptions that are only ordered by Customer under an Order Form and made available online by Contentstack, including associated offline components, as described in the Documentation. “Services” shall mean the SaaS Services and any associated Services ordered by Customer under an Order Form other than Onboarding and not otherwise excluded under this Agreement. “User” means an individual who is authorized by Customer to use a SaaS Service on Customer’s behalf, and to whom Customer (or Contentstack at Customer’s request) has supplied a user identification and password. Users may include, for example, Customer employees, consultants, contractors and agents, and third parties with which Customer transacts business.
2. Applicability. This Agreement is valid for the Order Form which this Agreement accompanies and any other orders issued pursuant to the terms of this Agreement and which incorporates such terms by reference. Customer and Customer Affiliates may use the SaaS Services for their operations provided that either i) Affiliate acts as a User under Customer’s account and in such cases Customer is fully liable for the acts and omissions of such Affiliates or ii) the Customer Affiliate enters into a written Agreement or Order Form agreeing to be bound by the terms of this Agreement and in such cases Customer is liable for the acts and omissions of all such Customer Affiliates.
3. Incorporated Terms.
3.1 This Agreement includes this Master Agreement, Contentstack’s Use Policy (https://www.contentstack.com/legal/use-policy/) (“Use Policy) any addendum or schedule to this Agreement for other Services mutually agreed to by the parties, and where applicable, the applicable Data Processing Addendum or (collectively the “Agreement”), the terms of which are incorporated by reference herein. All capitalized terms in this Master Agreement shall have the same meaning in all other documents comprising the Agreement. Customer Agrees that Customer will, and will ensure that its Users use the SaaS Services only in accordance with the Agreement terms, Contentstack’s Use Policy and Documentation.
3.2 Resold and Custom Services. Only resellers expressly authorized to do so by Contentstack may resell the Saas Services and in such cases, any customer purchasing the SaaS Services must do so with under terms no less restrictive than the terms set forth in this Agreement. Any provision of customized development services shall be subject to a separate agreement and are not included in this Agreement.
3.3 Onboarding. Any provision of Onboarding shall be set forth in the Order Form. Contentstack retains all right, title and interest in any materials provided or developed in connection with Onboarding (“Onboarding Materials”) and in exchange for payment for Onboarding and continued compliance with the terms of this Agreement, grants Customer a term limited, world-wide, royalty-free license to use the Onboarding Materials in connection with the use of the SaaS Services.
4.1 Payment. In consideration of the Services and Onboarding to be rendered pursuant to this Agreement and Order Form, Fees shall be paid as set forth in each applicable Order Form. Unless otherwise agreed by the parties, payment for Services and Onboarding shall be due thirty (30) days from the date or dates set forth in the applicable Order Form or, if applicable, the date of issuance of the invoice issued therefrom. Reasonable expenses shall be payable pursuant to the terms set forth in the applicable Order Form. Customer is responsible for providing complete and accurate billing and contact information to Contentstack and notifying Contentstack promptly of any changes to such information. At Contentstack’s option in its sole discretion, Contentstack may choose to accept payment through a system with a valid purchase order or alternative document reasonably acceptable to Contentstack. In such case, Contentstack will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Fees for SaaS Services are based on SaaS Services purchased and not actual usage. Except as expressly provided in this Agreement, payment obligations are non-cancelable and fees paid are non-refundable and SaaS Services purchased cannot be decreased during the relevant subscription term. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law that Contentstack must pay based on the Services or Onboarding Services ordered, except for taxes based on Contentstack’s income or taxes for employment of its employees. If Contentstack has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 4.1, Contentstack will invoice Customer and Customer will pay that amount unless Customer provides Contentstack with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer may not withhold any taxes or charges from any amounts due to Contentstack or setoff any amounts due to Contentstack
4.2 Late Payment. If any undisputed invoiced amount is not received by Contentstack by the due date, then without limiting Contentstack rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, (b) Contentstack may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.1 of the Master Agreement and/or (c) may, without limiting Contentstack other rights and remedies, accelerate Customer unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Contentstack services to Customer, until such amounts are paid in full. Contentstack will give Customer at least 10 days’ prior notice before suspending SaaS Services to Customer.
5. Intellectual Property and Licensing
5.1. Ownership and Reservation of Rights. Subject to the limited rights expressly granted hereunder, Contentstack and Contentstack licensors reserve and retain all of their right, title and interest in and to the Services, including but not limited to the SaaS Services and Onboarding, including all of Contentstack/their related intellectual property rights as well as all improvements thereto and derivative works therefrom. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer retains all right title and interest to Customer Data and subject to any Non-Contentstack licenses it may be subject to, the output created therefrom.
5.2. License for SaaS Services. Upon Contentstack’s acceptance of the Order Form and for the duration of the period set forth in the Order Form, Contentstack grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, limited-term license, under Contentstack’s applicable intellectual property rights and licenses, to use the SaaS Services licensed to Customer pursuant to Order Forms and the Agreement.
5.3. License by Customer to Host Customer Data and Applications. Customer grants Contentstack and Contentstack Affiliates a worldwide, limited-term license to access its data (including, without limitation, Customer Data), networks and systems solely for the purposes of providing Services, whether owned or operated by Customer or by third parties contracting with Customer, and to host, copy, transmit and display Customer Data, and any Non-Contentstack Applications and program code created by or for Customer using the SaaS Service, as necessary for Contentstack to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Contentstack acquires no right, title or interest from Customer or Customer licensors in or to Customer Data or any Non-Contentstack Application or program code.
5.4. License by Customer to Use Feedback. Customer grants to Contentstack and Contentstack Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Service or Onboarding any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Services as long as such feedback does not include Customer Data or Customer Confidential Information.
5.5. Changes to Terms. Contentstack reserves the right to change or amend, Contentstack Use Policy at any time. Contentstack will provide reasonable written notice to Customer of any material changes to the aforementioned documents. However, Contentstack may not reduce its written Service Level obligations in the Use Policy without the mutual agreement of the Parties,
5.6. Limitations on access and Changes to Functionality. Contentstack reserves the right to reduce, limit or throttle the number of Users, amount of data, access or throughput in connection with SaaSServices in order to protect the stability and security of the SaaS Services as long as i) Contentstack notifies Customer so they may work together to address the issue and ii) it does not affect the core functionality of SaaS Service. Contentstack reserves the right, in its sole discretion to alter or delete any functionality contained in Onboarding or SaaS Services at any time. In the event such changes materially reduces a material function of SaaS Service (“Critical Changes”), then Customer shall notify Contentstack of such concern so that the parties can work together in good faith to address those concerns, if such Critical Change cannot be addressed to the reasonable satisfaction of both parties within thirty (30) days, then Customer may terminate the Agreement and any Order Forms. For purposes of this Agreement any change to any legal terms in the User Policy that materially reduces Customer’s current use of the SaaS Services may be considered a Critical Change, but any objection under this Section 5.6 may only be raised within thirty (30) days of receiving notice of such change.
6.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential information shall include, without limitations, any (a) information, ideas or materials of a technical or creative nature, such as research and development results, designs and specifications, roadmaps, computer source and object code, patent applications, and other materials and concepts relating to Contentstack’s and Customer’s products, services, processes, technology or other intellectual property rights; (b) information, ideas or materials of a business nature, such as non-public financial information; information regarding profits, costs, marketing, purchasing, sales, customers, suppliers, contract terms, employees and salaries; product development plans; business and financial plans and forecasts; and marketing and sales plans and forecasts; (c) all personal property, including, without limitation, all books, manuals, records, reports, notes, contracts, lists, blueprints and other documents or materials, or copies thereof, received by Contentstack from Customer in the course of Contentstack’s rendering of Services or Onboarding to Customer, including, without limitation, records and any other materials pertaining to Confidential Information; and (d) the terms and conditions of this Agreement, including all Order Forms. Contentstack and Customer Trade Secrets shall be considered Confidential Information. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 6.2 and that Customer notifies them of the confidential nature of the Confidential Information and has substantially similar protections in place as there are in Section 6 of this Agreement. “Affiliates” shall mean Customer or Contentstack as applicable, and their subsidiaries, parents, and companies co-owned by parents as well as their employees, contractors, officers, directors, agents, attorneys and accountants.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6.4. Injunctive Relief. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the Disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
6.5 Aggregation. Contentstack shall and may aggregate, collect and analyze information relating to the provision, use and performance of the Services and Onboarding and may use (during and after the term hereof) such information to develop and improve the SaaS Services and other Contentstack offerings, including disclosure of such information to third parties in an aggregated and anonymized format such that no Customer nor any individual or household can be identified or re-identified.
7. Provision of Services and Service Levels.
7.1 SaaS Service Availability. Upon Contentstack acceptance of the Order Form and for the duration of the period set forth in the Order Form and solely with respect to SaaS Services provided in exchange for Fees, Contentstack will (a) make SaaS Services available to Customer pursuant to the Agreement, and the applicable Order Forms, (b) provide Contentstack's standard support for the purchased SaaS Services to Customer at no additional charge in which Contentstack will provide response and workaround/fix target times as set forth in the Contentstack Use Policy Service Levels, and (c) use commercially reasonable efforts to make the purchased online SaaS Services available 99% of the time, 24 hours a day, 7 days a week calculated monthly, except for: (i) planned downtime (of which Contentstack shall give at least 4 hours electronic notice and which Contentstack shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond Contentstack'sreasonable control, including, but not limited to Force Majeure events, strikes or other labor problems (other than one involving Contentstack's employees), Internet service provider failure or delay, Non-Contentstack Application, or denial of service attacks.
7.2 Security. Contentstack will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data as set forth in the Contentstack Security Addendum (https://www.contentstack.com/securityaddendum). Those safeguards will include, but will not be limited to, reasonable measures for preventing access, use, modification or disclosure of Customer Data by Contentstack personnel except (a) to provide the purchased SaaS Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below, or (c) as Customer expressly permits in writing.
7.3. CURE OF SERVICE AVAILABILITY BREACH. WITH RESPECT TO THE PROVISION OF PURCHASED SAAS SERVICES, IN THE EVENT OF THE BREACH OF SECTION 7.1. OF THIS AGREEMENT INCLUDING BUT NOT LIMITED TO, BREACH OF SERVICE LEVELS, SET FORTH IN SECTION 7 OF THE CONTENTSTACK USE POLICY, ONTENTSTACK WILL REMIT A SERVICES FEE CREDIT TO CUSTOMER CALCULATED AT 10% PER INCIDENT PER MONTH, AND NOT TO EXCEED IN THE AGGREGATE, THIRTY PERCENT (30%) OF PRORATED NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH ANY APPLICABLE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SAAS SERVICES OWED TO CONTENTSTACK, UNLESS THE AGREEMENT OR ORDER FORMS ARE TERMINATED OR EXPIRE WITHOUT BEING UPGRADED OR RENEWED, AND IN SUCH CASE, ANY OUTSTANDING SERVICE CREDITS WILL BE REFUNDED TO CUSTOMER., CUSTOMER AGREES THATTHE REMITTANCE OF SERVICES CREDITS WILL REPRESENT CUSTOMER’S EXCLUSIVE REMEDY, AND CONTENTSTACK’Sack’s SOLE LIABILITY, FOR ALL BREACHES OF THIS SECTION 7.1. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT CONTENTSTACK ISSUES SERVICE CREDITS FOR THREE CONSECUTIVE MONTHS OR FOUR TIMES OVER ANY SIX MONTH PERIOD, THEN CUSTOMER SHALL HAVE THE RIGHT TO TERMINATE THE AGREEMENT UPON NOTICE TO Contentstack AND RECEIVE A PRO-RATA REFUND FOR UNUSED SERVICES.
8. Insurance. Contentstack will, at its own expense, obtain and maintain the following insurance:
(a) General Commercial Liability. Commercial General Liability, with coverage including, but not limited to, premises/operations, contractual, personal and advertising injury, and products/completed operations liabilities, with limits of at least $1,000,000 per occurrence for bodily injury and property damage combined. Customer shall be named as an additional insured, with the standard "separation of Insureds" provision or an endorsement for cross-liability coverage. The policy shall be endorsed with forms CG 20 10 07 04 and CG 20 37 07 04 or their equivalent, to state that coverage is primary, and non-contributory with other available coverage. Except where prohibited by law, the insurance carrier shall waive all rights of subrogation that the insurer may have against Customer. Contentstack warrants that its subcontractors will maintain Commercial General Liability insurance, and Contentstack shall indemnify Customer for any loss, cost, liability, expense and damage suffered by Customer as a result of failure of its subcontractors to maintain such insurance. Contentstack further warrants that, if a subcontractor does not maintain Commercial General Liability insurance, Contentstack's Commercial General Liability insurance shall insure the subcontractor. Limits of liability requirements may be satisfied by a combination of Commercial General Liability and Umbrella Excess Liability policies.
(b) Workers’ Compensation. If any persons are employed, or uninsured independent contractors are hired, by Contentstack at any time during the term of this Agreement, Workers’ Compensation insurance, including coverage for all costs, benefits, and liabilities under Workers’ Compensation and similar laws which may accrue in favor of any person employed by Contentstack, for all states in which Contentstack will perform services for Customer, and Employer’s Liability insurance with limits of liability of at least $100,000 per accident or disease and $500,000 aggregate by disease. Except where prohibited by law, the insurance carrier shall waive all rights of subrogation that the insurer may have against Customer and the Indemnified Parties. Such insurance shall contain an Alternate Employer Endorsement naming Customer as the alternate employer. Contentstack warrants that its subcontractors will maintain Workers’ Compensation and Employer’s Liability insurance, and Contentstack shall indemnify Customer for any loss, cost, liability, expense and damage suffered by Customer as a result of failure of its subcontractors to maintain such insurance. Contentstack further warrants that, if a subcontractor does not maintain Workers' Compensation insurance, Contentstack's Workers' Compensation insurance shall insure the subcontractor. Contentstack may self-insure Workers’ Compensation only in states where the governing state bureau has issued to the Contentstack a qualified self-insurance license for Workers' Compensation.
(c) Professional Liability and Cyberliability. Professional Liability or Errors & Omissions and Cyberliability Insurance with limits of not less than $2,000,000 per claim and $4,000,000 annual aggregate for Professional Liability and $5,000,000 per claim and $10,000,000 in the aggregate for Cyberliability insurance, Coverage shall cover all acts, errors, omissions, negligence, infringement of intellectual property (except patent and trade secret) and network risks (including coverage for unauthorized access, failure of security, breach of privacy perils, as well as notification costs and regulatory defense) in the performance of services for Customer or on behalf of Customer hereunder. The policy shall contain an affirmative coverage grant for contingent bodily injury and property damage emanating from the failure of the SaaS Services or Onboarding rendered or an error or omission in the content/information provided. Such insurance shall be maintained in force at all times during the term of the agreement and for a period of 3 years thereafter for services completed during the term of the agreement. Customer shall be given at least 30 days’ notice of the cancellation or expiration of the aforementioned insurance for any reason.
(d) Policies. Insurance shall be purchased from companies having a rating of A- VII or better in the current Best’s Insurance Reports published by A.M. Best Customer. Insurance policies shall not be cancelled or materially changed without at least 30 days prior written notice to Customer. Evidence of insurance shall be submitted at customer’s request.
(e) Coverage. If Contentstack does not provide Customer with such evidence of insurance or such policies do not afford adequate protection for Customer, Customer will so advise Contentstack, but Customer failure to do so is not a waiver of these insurance requirements. If Contentstack does not furnish evidence of acceptable coverage within 15 days, Customer shall have the right, in its sole discretion, to (i) withhold payments from Contentstack until evidence of adequate coverage is provided, or (ii) immediately terminate this Agreement.
(f) No Modification to Obligations. Failure to obtain and maintain required insurance or failure by Customer to notify Contentstack shall not relieve Contentstack of any obligation contained in this Agreement.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Contentstack. Contentstack will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the provision of Services in accordance with this Agreement and applicable Order Forms infringes or misappropriates such third party’s copyright, trademark or patent (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement of, a Claim Against Customer, provided Customer (a) promptly gives Contentstack written notice of the Claim Against Customer, (b) gives Contentstack sole control of the defense and settlement of the Claim Against Customer (except that Contentstack may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) give Contentstack all reasonable assistance, at Contentstack’s expense. If Contentstack receives information about an infringement or misappropriation claim related to a SaaS Service, Contentstack may in Contentstack’s discretion and at no cost to Customer (i) modify the SaaS Service so that it no longer infringes or misappropriates such third party rights, (ii) obtain a license for Customer’s continued use of that SaaS Service in accordance with this Agreement, or (iii) terminate Customer’s obligations for that SaaS Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from w) Customer content x) use of Contentstack Services with Non-Contentstack Applications or any other third party product or service not embedded into the Services; y) Customer’s breach of this Agreement or any Order Forms; or z) claims arising from the subsequent modification of Contentstack SaaS Services by any party other than Contentstack or its authorized contractors acting on its behalf.
9.2. Indemnification by Customer. Customer will defend Contentstack against any claim, demand, suit or proceeding made or brought against Contentstack by a third party alleging that Customer Data, or Customer’s use of any SaaS Service or Onboarding in breach of this Agreement or any applicable Order Forms, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Contentstack”), and will indemnify Contentstack from any damages, attorney fees and costs finally awarded against Contentstack as a result of, or for any amounts paid by Contentstack under a court-approved settlement of, a Claim Against Contentstack, provided Contentstack (a) promptly give Customer written notice of the Claim Against Contentstack, (b) give Customer sole control of the defense and settlement of the Claim Against Contentstack (except that Customer may not settle any Claim Against Contentstack unless it unconditionally releases Contentstack of all liability), and (c) give Customer all reasonable assistance, at Customer’s expense.
9.3. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT, WHETHER IN ARBITRATION, MEDIATION OR ANY OTHER FORUM FOR DISPUTE RESOLUTION WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR (i) ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY OR (ii) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. CONTENTSTACK MAKES NO WARRANTY AND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF A PARTY, INCLUDING WITHOUT LIMITATION CUSTOMER OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR ANY CLAIM ARISING FROM CUSTOMER’S INDEMNITY OBLIGATIONS UNDER SECTION 9, OR A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN MEDIATION, ARBITRATION OR IN ANY OTHER FORUM WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 4. ANY CAUSE OF ACTION BY CUSTOMER ARISING FROM THE USE OF THE ANY SERVICE OR ONBOARDING, WHETHER SOLD DIRECTLY OR RESOLD, MUST BE BROUGHT AGAINST CONTENTSTACK ONLY, AND EXCEPT FOR THOSE RELATING TO INDEMNIFICATION OR ARISING FROM NON-PAYMENT OF FEES, MUST BE BROUGHT WITHIN TWO YEARS OF ITS OCCURRENCE.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms hereunder have expired or have been terminated.
11.2. Termination. A party may terminate this Agreement for cause (i) upon thirty (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. Violation of the Contentstack Use Policy may result in the immediate termination or suspension of the Agreement and all Order Forms
12. WARRANTY AND DISCLAIMER
12.1. Contentstack warrants and represents that the SaaS Services shall not infringe upon any Patent, copyright, trade secret.
12.2. The party executing this Agreement on behalf of Customer warrants and represents that they are authorized to enter into this Agreement and bind Customer.
12.3. Customer warrants and represents that i) its use of the SaaS Services will comply with all Laws; ii) it will not use the SaaS Services to infringe or violate any third party rights; iii) the billing and contact information provided by Customer in this Agreement is accurate, true, correct and up to date and Customer will promptly notify Contentstack of any changes.
12.4. Disclaimers. CONTENTSTACK DOES NOT GUARANTEE THAT THE SAAS SERVICES OR ONBOARDING WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT CONTENTSTACK WILL CORRECT ALL SERVICE ERRORS. CUSTOMER ACKNOWLEDGES THAT CONTENTSTACK DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE OR ONBOARDING MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CONTENTSTACK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR PROVISION OF THE SERVICES IN ACCORDANCE WITH CUSTOMER INSTRUCTIONS . ONBOARDING, SAMPLE CODE AND ANY ONLINE FORUMS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OR CONTENTSTACK LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, THE WARRANTIES AND ANY WARRANTIES IDENTIFIED AS AN EXPRESS WARRANTY IN THIS AGREEMENT ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY BREACH OF WARRANTY MUST BE REPORTED TO CONTENTSTACK WITHIN ONE YEAR AFTER THE INITIAL PROVISION OF THE SAAS SERVICES.
13. GENERAL PROVISIONS
13.1. Surviving Provisions. The Sections titled “Applicability,” “Incorporated Terms,” "Payment," "Intellectual Property" "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," “Disclaimers” and "General Provisions" and any subsections thereof will survive any termination or expiration of this Agreement.
13.2. Notice. All notices to Contentstack shall be valid only if sent via pre-paid first class certified mail or overnight courier to Contentstack attn: Chief Operating Officer, 49 Geary St, Suite 238 San Francisco, CA 91408, via facsimile transmission with proof of transmission or, for notices excluding notice of indemnification obligations, through email address or portal to a designated person approved in writing by Contentstack. Contentstack may give notice applicable to Contentstack SaaS Services customer base by means of a general notice on Contentstack portal for the SaaS Services, and notices specific to Customer by electronic mail to Customer e-mail address on record in Contentstack account information or by written communication sent by first class mail or pre-paid post to the most recent Customer address provided by Customer to Contentstack. Customer’s current address shall be the address provided on the Order Form.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of California, without reference to its conflicts of law principles, and to the extent any cause of action is permitted to be brought before a court under this Agreement, consents to the exclusive jurisdiction of the of the State of California, the County of San Francisco and the Federal courts located within such jurisdiction and waives any objection to forum. In the event that there are any changes in law that materially and adversely affect Contentstack’s ability to perform the S Services or Onboarding Services under the Agreement and Order Form (a “Regulatory Change”), then the parties shall negotiate in good faith to amend the applicable Order Form in order to enable Contentstack to continue to render the required SaaS Services or Onboarding Services in accordance with the law as changed.
13.4. Mediation and Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. CLAIMS SHALL BE HEARD BY A SINGLE ARBITRATOR, UNLESS THE CLAIM AMOUNT EXCEEDS $500,000, IN WHICH CASE THE DISPUTE SHALL BE HEARD BY A PANEL OF THREE ARBITRATORS. WITHIN 15 DAYS AFTER THE COMMENCEMENT OF ARBITRATION, EACH PARTY SHALL SELECT ONE PERSON TO ACT AS ARBITRATOR AND THE TWO SELECTED SHALL SELECT A THIRD ARBITRATOR WITHIN TEN DAYS OF THEIR APPOINTMENT. IF THE ARBITRATORS SELECTED BY THE PARTIES ARE UNABLE OR FAIL TO AGREE UPON THE THIRD ARBITRATOR, THE THIRD ARBITRATOR SHALL BE SELECTED BY THE AMERICAN ARBITRATION ASSOCIATION. THE PLACE OF ARBITRATION SHALL BE SAN FRANCISCO, CALIFORNIA. THE ARBITRATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA. DEPOSITIONS SHALL BE LIMITED TO A MAXIMUM OF 2 PER PARTY AND SHALL BE HELD WITHIN 15 DAYS OF THE MAKING OF A REQUEST. ADDITIONAL DEPOSITIONS MAY BE SCHEDULED ONLY WITH THE PERMISSION OF THE ARBITRATORS, AND FOR GOOD CAUSE SHOWN. EACH DEPOSITION SHALL BE LIMITED TO A MAXIMUM OF 6 HOURS DURATION. IN MAKING DETERMINATIONS REGARDING THE SCOPE OF EXCHANGE OF ELECTRONIC INFORMATION, THE ARBITRATOR(S) AND THE PARTIES AGREE TO BE GUIDED BY THE SEDONA PRINCIPLES, THIRD EDITION: BEST PRACTICES, RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC DOCUMENT PRODUCTION. LEAVE THE ARBITRATION CLAUSE SILENT REGARDING IN WHAT MANNER HEARINGS WILL BE CONDUCTED, MEANING HEARINGS WILL TAKE PLACE PURSUANT TO THE STANDARD PROCEDURES OF THE COMMERCIAL ARBITRATION RULES THAT CONTEMPLATE IN PERSON HEARINGS. PURSUANT TO THE COMMERCIAL ARBITRATION RULES, THE ARBITRATORS WILL HAVE THE AUTHORITY TO ALLOCATE THE COSTS OF THE ARBITRATION PROCESS AMONG THE PARTIES, BUT WILL ONLY HAVE THE AUTHORITY TO ALLOCATE ATTORNEYS' FEES IF A PARTICULAR LAW PERMITS THEM TO DO SO. EXCEPT AS MAY BE REQUIRED BY LAW, NEITHER A PARTY NOR AN ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT, OR RESULTS OF ANY ARBITRATION HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF BOTH PARTIES. THE PARTIES AGREE THAT FAILURE OR REFUSAL OF A PARTY TO PAY ITS REQUIRED SHARE OF THE DEPOSITS FOR ARBITRATOR COMPENSATION OR ADMINISTRATIVE CHARGES SHALL CONSTITUTE A WAIVER BY THAT PARTY TO PRESENT EVIDENCE OR CROSS-EXAMINE WITNESS. IN SUCH EVENT, THE OTHER PARTY SHALL BE REQUIRED TO PRESENT EVIDENCE AND LEGAL ARGUMENT AS THE ARBITRATOR(S) MAY REQUIRE FOR THE MAKING OF AN AWARD. SUCH WAIVER SHALL NOT ALLOW FOR A DEFAULT JUDGMENT AGAINST THE NON-PAYING PARTY IN THE ABSENCE OF EVIDENCE PRESENTED AS PROVIDED FOR ABOVE. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION.
13.4 Export Compliance. The SaaS Services, other technology Contentstack makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any SaaS Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
13.5. Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Contentstack employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Contentstack Legal Department at email@example.com. Contentstack will comply with any anti-corruption or codes of ethics provided by company in writing, as effective as of the Effective Date.
13.6. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Contentstack regarding Customer’s use of Service and Onboarding and, , supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form (2) the Master Agreement, (3) the Use Policy, and (4) the Documentation.
13.7. Assignment. Neither party may assign any of its rights or obligations hereunder in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in whole or in party, (including Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer agrees that Contentstack may perform its obligations through an Affiliate, provided that Contentful remains responsible for its obligations hereunder and liable for such Affiliate’s performance as if it were Contentstack.
Notwithstanding the foregoing, subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8. Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever. Neither party shall have any obligation or duty to the other party except as expressly and specifically set forth herein, and no such obligation or duty shall be implied by or inferred from this Agreement or the conduct of the parties hereunder. Customer shall not withhold, setoffs or make payments or contributions therefor or obtain benefits for Contentstack or its employees, contractors or agents or for any other reason. Contentstack shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Contentstack’s performance of any services and receipt of fees under this Agreement.
13.8. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.10. Remedies Cumulative. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
13.11. UCITA and CISG. Neither Uniform Computer Information Transactions Act nor the United Nations Covenant for the International Sale of Goods applies to this Agreement or orders placed under it. Customer understands that Contentstack business partners, including any third party firms retained by Customer to provide computer consulting services, are independent of Contentstack and are not Contentstack agents.
13.12. Force Majeure. Neither of party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; pandemic, act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for programs delivered or services provided. In no circumstances shall the Customer's inability to pay constitute a force majeure event
13.13. Publicity. Unless expressly set forth otherwise in an Order Form, Contentstack may, upon Customer’s review and approval (which approval shall not be unreasonably withheld or delayed), reference Customer’s name and trademark, as well as other information pertaining to the provision and results of the services provided, in case studies and other Contentstack marketing materials.
13.14. Non Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, except as may be otherwise agreed in writing, Customer and its affiliates shall not, either directly or indirectly, on behalf of Customer or any other person or entity, solicit, entice, hire or offer employment to, enter into any independent contractor relationship with or otherwise directly or indirectly use the SaaS Services or Onboarding, on a full-time, part-time or temporary basis:
- Any Contentstack personnel, including employees and subcontractors (“Contentstack Staff”) or former Contentstack Staff who has provided Services or Onboarding to Customer;
- Any Contentstack Staff or former Contentstack Staff who has been introduced to, recommended to or interviewed by Customer through Contentstack; or
During the term of this Agreement and for one year hereafter, except as may be otherwise agreed in writing, Contentstack shall not, either directly or indirectly, on behalf of Customer or any other person or entity, solicit, entice, hire or offer employment to, enter into an independent contractor relationship with or otherwise directly or indirectly use the SaaS Services or Onboarding, on a full-time, part-time or temporary basis any employee or former employee of Customer with whom Contentstack has had contact in connection with the performance of SaaS Services, or Onboarding under this Agreement. The above restrictions shall not apply to any response to an advertisement or posted directed at or made available to the general public.
13.15 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.