This Master Service Agreement (“Agreement”) is entered into as of the Effective Date by and between LoudCrowd Inc. (“LoudCrowd”) and Client Name (“Client”). The Order Forms attached to this Agreement (each, an “Order Form”) describe, among other things, the Services (as herein defined) to be provided to Client by LoudCrowd. The Services described on the Order Forms are governed by the terms and conditions of this Agreement, but to the extent of a conflict between an Order Form and this Agreement, the Order Form shall control.2. Definitions
Capitalized terms used in this Agreement and the Order Forms have the following meanings:
- “Client Content” means the content of any postings, text, or data inputted by Client or LoudCrowd on the Client’s behalf for the purpose of using or facilitating Client’s use of the Platform or Services.
- “Personally Identifiable Information” means the information of end users of Client’s website(s) that is collected, aggregated, processed or otherwise managed by LoudCrowd or the Platform in connection with this Agreement and that can be associated with or traced to any individual.
- “Platform” means LoudCrowd’s proprietary, Internet-accessible software platform, applications, APIs, databases, algorithms, and custom reports described in an Order Form. The Platform includes without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein.
- “Records” means any data collected, aggregated, processed or otherwise managed by LoudCrowd or the Platform for or on behalf of Client in connection with this Agreement.
- “Results” means the materials and reports generated through use of the Platform and Services.
- “Services” means providing Client with access to certain features and functionalities of the Platform, including technical support and maintenance, and any other services as more particularly described in each Order Form attached to this Agreement.
- “Third Party Site” means Twitter, Facebook, LinkedIn, Instagram, Pinterest, Google and other websites or services that solicit content from users and makes such content available for re-syndication and/or publication via an API.
- “LoudCrowd IP” means LoudCrowd’s proprietary technology, including software tools, hardware designs, algorithms, the Platform (in source and object forms), including, without limitation, the look, feel, and user interface designs, architecture, class libraries, objects and documentation (both printed and electronic, network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by LoudCrowd or licensed to LoudCrowd from a third party) and also including any derivatives, improvements, enhancements or extensions of LoudCrowd IP conceived, reduced to practice, or developed during the term of the Agreement.
- “User Generated Content” or “UGC” means all information submitted by Client’s end users via the Platform, including actively submitted content and associated transactional information.
Client shall pay LoudCrowd the fees set forth in each Order Form (“Fees”). All Fees are exclusive of applicable sales, excise, or use taxes. Client shall pay the Fees payable to LoudCrowd hereunder within 30 days of receipt of invoices submitted by LoudCrowd. Any unpaid and uncontested balance due and owing will incur a penalty charge of 1% per month. In addition, if any invoice remains unpaid for more than 30 days, LoudCrowd may suspend Services after giving 10 days’ written notice to Client, until LoudCrowd has been paid all amounts due. In the event of any dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein, and Client shall notify LoudCrowd in writing of the reason for Client’s dispute. Unless provided otherwise on the applicable Order Form, LoudCrowd shall be reimbursed by Client for all reasonable expenses incurred by LoudCrowd in the performance of the Services, including, but not necessarily limited to, reasonable travel and lodging expenses and communications charges. At Client’s request, LoudCrowd shall submit reimbursement requests, together with back-up receipts, in a form reasonably acceptable to Client.
4. Proprietary Rights
a. LoudCrowd Ownership. Subject to the limited rights granted to Client hereunder, LoudCrowd reserves all right, title and interest in and to the Platform, including all visual information and related intellectual property rights. The intellectual property rights in and to the Platform as well as any LoudCrowd intellectual property that may be used in the performance of any Services for Client (not including any Client Content or UGC which may be included therein) is LoudCrowd’s or its licensors’ exclusive property. LoudCrowd grants to Client a non-exclusive, non-transferable, royalty free, non-sublicensable right to use the LoudCrowd IP as included in the Platform only during the applicable Order Form term. All rights to the Platform and the LoudCrowd IP not expressly granted herein or an Order Form are reserved by LoudCrowd. Client agrees that LoudCrowd is free to use and incorporate into the LoudCrowd IP any suggestions, ideas, recommendations, or other feedback that Client provides to LoudCrowd without payment of compensation to Client.
b. Client Ownership. As between LoudCrowd and Client, Client owns all rights, title and interest in and to all Client Content and Results. Client grants LoudCrowd a non-exclusive, non-transferable, royalty free, non-sublicensable (except as set forth herein) right to access and use the Client Content solely to provide the Platform, Services and technical support to Client at Client’s request. As between Client and LoudCrowd, Client owns all UGC. Client grants LoudCrowd a limited, non-exclusive, royalty-free, revocable, world-wide license to use and display UGC as necessary to provide, improve, and monitor the Services for the duration of this Agreement, and an irrevocable license to use UGC for analytics purposes in perpetuity. LoudCrowd may use any publicly-available UGC for any lawful purposes. No other rights or implied licenses in Client are granted to LoudCrowd other than as expressly set forth herein.
5. Confidential Information
During the term of this Agreement, each party may be given access to information that (i) relates to the other’s past, present, and future research, development, business activities, products, services, and technical knowledge, and (ii) has been identified as confidential or that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself (“Confidential Information”). Facebook User IDs shall be deemed Confidential Information under this Agreement. In connection therewith, the following subsections shall apply:
a. Neither party shall disclose or use the Confidential Information of the other party except as expressly provided herein or as required in connection with this Agreement;
b. Each party agrees to protect the confidentiality of the Confidential Information of the other in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but with no less than a reasonable degree of care;
c. The Confidential Information may not be copied or reproduced without the discloser’s prior written consent;
d. Each party shall return to the other or destroy all Confidential Information made available hereunder, including copies thereof, whether contained in notes, documents, computer programs, or other materials upon the first to occur of (a) termination of this Agreement or (b) request by the discloser. Each party will, within five days of written request from the other party, provide the requesting party with a certificate signed by an officer, verifying that all such materials have been returned or destroyed. Notwithstanding the foregoing, neither party is required to return, destroy, or delete archive copies of the Confidential Information of the other party made in connection with automatic backup procedures so long as such copies are destroyed upon the normal expiration of backup files;
e. Nothing in this Agreement shall prohibit or limit either party’s use or disclosure of information (including, but not limited to ideas, concepts, know-how, techniques, and methodologies) (i) previously known to it without obligation of confidentiality, (ii) independently developed by it without any use of the other party’s Confidential Information, (iii) acquired by it from a third party which is not, to its knowledge, under an obligation of confidentiality with respect to such information, or (iv) which is or becomes publicly available through no breach of this Agreement; and
f. If either party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, it shall provide prompt notice to the other of such receipt, and shall cooperate at the other party’s expense, with any efforts to prevent the disclosure of the Confidential Information. The party receiving the subpoena shall thereafter be entitled to comply with such subpoena or other process to the extent required by applicable law.
6. Data Protection Representations and Warranties
With respect to Personally Identifiable Information, LoudCrowd agrees, covenants, represents and warrants that it shall:
a. take, at its sole expense, all appropriate technical and organizational measures: (i) against accidental loss, destruction or damage to, or unlawful disclosure of the Personally Identifiable Information; (ii) to secure the confidentiality of the Personally Identifiable Information in accordance with Section 6; and (iii) to prevent unauthorized or unlawful processing of Personally Identifiable Information;
b. use Personally Identifiable Information solely for the purpose for which it was provided and only in accordance with the lawful instructions of Client;
c. comply with all applicable laws and legislation, including without limitation, all applicable local laws, rules, and regulations to which LoudCrowd is required to, or has voluntarily agreed to, comply relating to the protection of Personally Identifiable Information (“Privacy Laws”); and
7. General Representations and Warranties; Disclaimer
c. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
Each party agrees to defend the other party, its corporate affiliates, and their respective agents, officers, directors, shareholders, partners, employees and licensees, and each of their successors and permitted assigns (collectively, the “Indemnified Parties”) and hold each of them harmless from and against any and all claims and demands (collectively, “Claims”), brought by a third party based upon or arising in any manner, directly or indirectly, out of or in connection with such party’s breach of its representations, warranties or obligations as provided in this Agreement. The indemnifying party shall pay all damages finally awarded or paid in settlement of any such Claims. The Indemnified Parties must notify the indemnifying party promptly in writing of any claim for indemnification hereunder, and provide, at the indemnifying party’s expense (to the extent of out-of-pocket expenses only), all reasonably necessary assistance, information and authority to allow the indemnifying party to control the defense and settlement of such claim; provided that the failure of the Indemnified Parties to promptly inform the indemnifying party of any Claim shall not excuse the indemnifying party of its obligations hereunder except to the extent such failure materially prejudices the indemnifying party. Notwithstanding the foregoing, the indemnifying party shall not enter into any settlement of the defense of such action, other than with respect to the payment of monies, without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. The Indemnified Party may participate in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense.
9. Client Responsibilities; Restrictions.
Client shall provide LoudCrowd with all information and assistance as reasonably requested and required for LoudCrowd to activate and operate the Services. If an Order Form includes access to the Platform, Client will access the Platform using username and passwords. User names and passwords will only be issued to employees of Client or third parties that LoudCrowd approves in writing. Client shall immediately notify LoudCrowd of any unauthorized disclosure or use of the passwords or access to the Platform or the need to deactivate passwords and provide to LoudCrowd its reasonable cooperation to remedy such unauthorized disclosure or use. Passwords are subject to cancellation or suspension by LoudCrowd upon the misuse of passwords by Client. Client shall not, and shall not allow third parties, to: (a) sublicense or distribute the LoudCrowd IP in any manner; (b) create derivative works of the LoudCrowd IP; (c) reproduce or copy the LoudCrowd IP in any manner; (d) rent, lease, or sell the LoudCrowd IP; (e) modify, decompile, disassemble, or otherwise reverse engineer the LoudCrowd IP; (f) use the LoudCrowd IP for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (g) transfer the LoudCrowd IP or the limited license granted herein to another party.
To assist Client in operating and improving the user experience on its website or application, Client hereby appoints LoudCrowd as its agent solely for purposes of collecting, aggregating, managing and processing Records or on Client’s behalf. Subject to the terms, conditions, and limitations of this Agreement, Client grants to LoudCrowd a perpetual, non-exclusive right and license to analyze, process, reproduce, and prepare derivative works based upon the Records solely for the purpose of generating and displaying volume statistical information in connection with LoudCrowd’s business operations; provided that such data does not identify any person and is aggregated with the data from other LoudCrowd customers or users in a manner that does not allow Client’s data to be separated from the aggregate data and identified as relating to Client. All rights to the Records not expressly granted herein are reserved by the Client.
11. Term and Termination
This Agreement is effective as of the Effective Date and will remain in effect so long as any Order Form remains in effect, unless otherwise terminated as provided herein. If the Agreement terminates as a result of there being no active Order Forms, the Agreement will automatically become effective again in the event that a new Order Form is entered into by and between the parties. If either party materially breaches a material provision of this Agreement, the other party may terminate this Agreement upon 30 days advance written notice to the other party unless the other party cures the breach within 10 days of receipt of such notice of material breach. Sections 4, 5, 6, 8, 10, 12, and 17 shall survive termination of this Agreement and any remedies for breach of the Agreement shall survive termination or expiration.
12. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL DAMAGES (INCLUDING LOST PROFITS) OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CLAIMS CONCERNING INDEMNIFICATION, CONFIDENTIALITY, AND LOUDCROWD’S OWNERSHIP OF INTELLECTUAL PROPERTY, EACH PARTY’S TOTAL LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, AND NOT WITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID OR PAYABLE TO LOUDCROWD BY CLIENT DURING THE TWELVE MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
All notices under this Agreement shall be in writing and shall be deemed given upon delivery with confirmation of receipt.
14. Independent Contractors.
Neither party has any ability to bind the other party to any agreements or other obligations and will not attempt to do so. This Agreement does not grant any party any right or authority to, and neither party will make any statements, representations, or commitments on behalf of the other party. LoudCrowd and Client are independent contractors, and except as provided herein, nothing in this Agreement creates any partnership, joint venture or agency relationship. As between each other, each party is fully responsible for all persons and entities it employs or retains.
15. Force Majeure.
Except for the obligation to pay money, neither party shall be liable for any delays or failures in performance to the extent such delays are caused by labor strikes, war, civil unrest, natural disasters, or other similar circumstances beyond its control.
Neither party may assign its rights or obligations under this Agreement without the advance written consent of the other party, except in the event of a merger or a sale involving all, or substantially all, of a party’s stock or assets. Any attempted assignment in violation hereof shall be voidable at the other party’s discretion.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement, an Order Form or the scope of the Services will be effective unless in writing and signed by both parties. LoudCrowd shall have no obligation to commence work in connection with any change until the fee and/or schedule impact of the change is agreed upon by the parties in writing. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement (along with any Order Forms) constitutes the entire, complete and final understanding and agreement by and between the parties with respect to the subject matter of this Agreement, and supersedes any prior oral or written agreements with respect to the subject of this Agreement. The person signing this Agreement represents that they have authority to bind Customer to the terms of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the conflicts of laws provisions thereof.