Review Studio Master Subscription Agreement
(Last Updated March 2019)
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S PURCHASE AND USE OF SERVICES FROM Review Studio, Inc. (“Reputation Studio”).
Access to the Salesforce.com system is governed by the Salesforce Customer Agreement: http://www2.sfdcstatic.com/assets/pdf/misc/salesforce_MSA.pdf
All Salesforce.com related agreements may be found here: http://www.salesforce.com/company/legal/agreements.jsp
This Agreement is effective as of the date Customer executes a Customer Services Agreement and may change from time to time. The most current version will be hosted at www.reputationstudio.com/msa
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Law” means all applicable statutes, laws, regulations, ordinances, executive orders, rules, judgments, orders, decrees, directives, guidelines (to the extent mandatory), policies (to the extent mandatory) and other similar directives, whether now or hereafter in effect, of any federal, state, or local government, any political subdivision, and any governmental, quasi-governmental, judicial, public, or statutory instrumentality, administrative agency, authority, body, or other entity having jurisdiction over Reputation Studio, Customer or the Purchased Services, including without limitation, any laws and regulations relating to access, use, disclosure, storage or transmission of any personal information in connection with the Services.
“Force Major” means an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees)
“Reputation Studio” means Review Studio, Inc. a Utah corporation.
“Customer” means the individual or entity defined as a “Customer” under an applicable Customer Services Agreement.
“Customer Data” means any information that Reputation Studio or its agents may have access to, receive, create, transmit, store or maintain on behalf of Customer under this Agreement, including without limitation any information relating to an identified individual (or an individual whose identity could be discovered based on such information).
“Customer Services Agreement” means the supplemental contract for purchases hereunder, including addenda thereto, that are entered into between Customer and Reputation Studio from time to time. Customer Services Agreements shall be deemed incorporated herein by reference. Unless otherwise specified, the Customer Services Agreement is included on the order form and is approved electronically by the customer.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, programs, including, without limitation, any code that is intended to cause undesired effects, security breaches or damage to a system.
“Purchased Services” means Services that Customer purchases under a Customer Services Agreement.
“Services” means the online, Web-based applications and platform provided by Reputation Studio pursuant to this Agreement and any applicable Customer Services Agreements executed by Customer and Reputation Studio.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Reputation Studio at Customer’s request). Users may include but are not limited to Customer’s employees, consultants, contractors and agents; or third parties with which Customer transacts business.
“User Subscriptions” shall have the same meaning as “Licenses” under the Customer Services Agreement.
“We,” “Us” or “Our” if used herein, means Reputation Studio.
“You” or “Your” if used herein, means the Customer as defined in a duly executed Customer Services Agreement.
- PURCHASED SERVICES
2.1. Provision of Purchased Services. Reputation Studio shall make the Purchased Services available to Customer pursuant to this Agreement during the term provided for in a duly executed .Customer is purchasing the right to use the Services listed above for the Term of this Agreement (the “Services” or “Purchased Services”). The Services include versions currently offered by Reputation Studio in section along with any upgrades which may be offered during the above term of service. Any products Reputation Studio may develop in the future, or which are not currently offered, are not covered by this Agreement and must be purchased by Customer as an addendum to this agreement if Customer desires to purchase such products.
2.2. User Subscriptions. Unless otherwise specified in the applicable Customer Services Agreement, (i) Services are purchased as User Subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User Subscriptions may be added during the Term at the same pricing as that for the original User Subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User Subscriptions are added, and (iii) the added User Subscriptions shall terminate on the same date as the pre-existing subscriptions. User Subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
2.3 Current Products Only. Pursuant to this Agreement, Customer is purchasing the right to use the version of Reputation Studio currently offered by Reputation Studio along with any upgrades, which may be offered in the future. Any upgrades to Reputation Studio during the Term shall be provided to Customer at no additional cost to Customer as long as the Customer is enrolled into the correct feature tier. Any products Reputation Studio may develop in the future, or which are not currently offered, are not covered by this Agreement and must be purchased by Customer at additional cost if Customer desires to purchase such products.
2.4 Level of Service.
2.4.1 Availability SLA: the Reputation Studio application shall be available for Customer’s use at least 99.5% of the total time of each calendar month. The Availability SLA applies only to unavailability due to Review Studio’s inability to provide services to Customer where such inability is not attributable to (a) Customer’s abnormal or unusual activity generated outside of average daily trends, (b) scheduled maintenance windows; provided that Review Studio shall notify Customer at least seven (7) days prior to any scheduled maintenance and that scheduled maintenance shall only be performed between 2:00 AM and 5:00AM EST on any given day, or (d) access to 3rd-party sites, (d) an outage caused by salesforce.com (SFDC). Review Studio shall provide Customer with internally tracked up-time details concerning the Availability SLA. If Review Studio has failed to meet its commitment under the Availability SLA, Review Studio shall credit Customer the amount of the Service Level Credit in accordance with the table set below. Such Service Level Credit will equal a percentage of the Fees otherwise payable with respect to such month in connection with the Availability SLA failure. For avoidance of doubt, this includes the Monthly Application Fee for all brands and users. If Review Studio is in violation of agreed-upon SLA obligations for two consecutive months or any four months during the Term, then Customer shall, in addition, have the right to terminate the contract upon thirty-day written notice, at which time a prorated refund for all annual licenses purchased will be issued by Review Studio. If Customer disputes details of any monthly up-time details, Customer shall provide Review Studio with information concerning the disputed time period and Customer and Review Studio shall in good faith agree-upon a reconciliation of the conflicting information. Availability in Applicable Month Service Level Credit 99.50% and above $0 Between 99.000% and 99.499% 5% Between 98.000% and 99.000% 10% Less than 98.000% 50%
2.5 Severity definitions: the following standard problem definitions shall apply to issues affecting the Reputation Studio solution.
2.5.1 Severity 1 – Major Failure Mission critical problem involving serious operation impact to Customer and Customer’s supported consumers/clients. Reputation Studio is not available, review data has not refreshed in 4+ hours, incoming email has not been received in 4+ hours, or emails cannot be sent. Review Studio agrees to respond within 2 hours during business hours (8am-10pm MST Monday-Friday) or 4 hours outside of business hours, provide next business day status notifications, and submit an incident report within 2 business days (Monday-Friday).
2.5.2 Severity 2 – Limitation Urgent problems involving some operational impact. Reputation Studio responds, but generates exceptions or errors; application is running significantly slower than normal; or data errors are identified. Review Studio agrees to respond within 4 hours during business hours (8am-10pm MST Monday-Friday) or 6 hours outside of business hours, provide next business day status notifications, and submit an incident report within 2 business days (Monday-Friday).
2.5.3 Severity 3 – Minor Defect Important problems are identified, but with minimal operational impact. Reputation Studio is running noticeably slower, operates inconsistently, or is 4-6 hours behind in data updates.Review Studio agrees to respond within business day and provide an incident report within 5 business days (Monday-Friday)
2.5.4 Severity 4 – Cosmetic No operational impact Cosmetic or non-functional problems. Review Studio agrees to respond within the next business day (Monday-Friday) and provide an incident report upon request. Error Escalation and Warranty Support: the following table outlines the required escalation of identified/reported errors and the Warranty Support required. Fees.
- USE OF THE SERVICES
3.1 General. The Services are developed and operate on the Salesforce Platform and are hosted by Salesforce. This Agreement entitles You to use the Salesforce Platform as part of the Services, and does not entitle You to use any other Salesforce product or service except as expressly provided in the “Salesforce Platform for Reputation Studio Accounting” section below. Unless otherwise specified herein or in an Order Form, You may not use Salesforce Platform subscriptions acquired under this Agreement (a) in a manner or for a purpose other than as needed to use the Services, (b) to develop new applications, (c) to utilize custom objects delivered outside of the Services, or (d) to access the Salesforce Campaigns, Leads, Opportunities, Cases, Solutions or Forecasts objects. .
3.2 Reputation Studio’s Responsibilities. Reputation Studio shall provide the Purchased Services described herein, and as applicable in the Order Form and Customer Services Agreement executed by the Parties.
3.3 Customer’s Responsibilities. Customer shall (i) be responsible for compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of the Customer’s Data and of the means by which Customer acquired the Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Purchased Services, and notify Reputation Studio promptly of any such unauthorized access or use, and (iv) use the Purchased Services only in accordance with applicable laws and government regulations. You shall not (a) sell, resell, rent, lease or loan the Purchased Services, (b) use the Purchased Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Purchased Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Purchased Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Purchased Services or their related systems or networks.
3.4 Usage Limitations. Purchased Services may be subject to other limitations, including but not limited to; limits on disk storage space, on the number of calls Customer is permitted to make against Reputation Studio’s application programming interface (“API”), and, for Services that enable Customer to provide public websites, on the number of page views by visitors to those websites.
3.5 Data Storage Limits. Each Salesforce.com account provisioned by Reputation Studio includes 10GB of data storage. This storage limit applies to all data records stored inside the company’s Salesforce org. Any overages of this data storage may require the Customer to purchase additional data space from Reputation Studio or archive older data.
3.6 Provision of Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide standard Support for the Services to You at no additional charge, and/or upgraded Support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We 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 Our reasonable control, including but not limited to; Force Major, Internet service provider failure or delay, Non-Reputation Studio Application, or denial-of-service attack.
3.7 Analytics. Reputation Studio and Salesforce may track and analyze usage of the Services and Salesforce Platform to assist Customer, and to maintain the security of and improve the Services and Salesforce Platform. Reputation Studio and Salesforce may share with third parties anonymous, aggregated usage data that does not enable identification of any entity or individual.
3.9 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.10 Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3.11 Salesforce Platform for Reputation Studio will only include the use of Accounts, Opportunities, Price Books, and Products tabs. You shall not be permitted to utilize any other functions unless you have purchased a full Salesforce CRM subscription for the applicable User.
3.12 Users and User Licenses cannot be shared or used by more than one person (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or engagement with You or otherwise changed job status or function and no longer require use of the Service). Additional Users may be added with an addendum to this agreement, but the number of users cannot be reduced until the term of this agreement is completed.
- FEES AND PAYMENT FOR PURCHASED SERVICES
4.1. User Fees. Customer shall pay the fees specified in all Customer Services Agreement(s) hereunder. Except as otherwise specified herein or in a Customer Services Agreement, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Fees are based on monthly periods that begin on the subscription start date and each mensiversary thereof; therefore, fees for services added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Term.
4.2. Invoicing and Payment. If the Order Form specifies a credit card payment, customer will provide valid and updated credit card information. If Customer provides credit card information to Reputation Studio, Customer authorizes Reputation Studio to charge such credit for all Purchased Services listed in the Customer Services Agreement for the initial Term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Customer Services Agreement. If the Customer Services Agreement specifies that payment will be by a method other than a credit card, Reputation Studio will invoice Customer in advance and otherwise in accordance with the payment terms and terms relevant Customer Services Agreement. Unless otherwise stated in the Customer Services Agreement, invoiced charges are due Net 30 days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information.
4.3. Overdue Charges. If any charges are not received from Customer by the due date, then at Reputation Studio’s discretion, (a) such 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, from the date such payment was due until the date paid, and/or (b) Reputation Studio may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Reputation Studio’s services is 60 or more days overdue (or 30 or more days overdue in the case of amounts Customer has authorized Reputation Studio to charge to Customer’s credit card are declined), Reputation Studio may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend services to Customer until such amounts are paid in full.
4.5. Payment Disputes. Reputation Studio shall not exercise its rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
4.6. Taxes. Unless otherwise stated, Reputation Studio’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, ” Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Reputation Studio has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Reputation Studio with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.7 Research and Development. Customers will receive a 5% annual price increase to account for Research and Development costs
4.8 Pricing. Customer has agreed to prices in the order above. Review Studio, Inc. has the right to modify pricing upon renewal with a 90 day written notice to Customer. The Term of this Agreement will apply to all applicable platforms and/or third parties required to perform said Service. Application Fees. Customer shall be required to pay the price listed in above order for the services provided in this Agreement. A “location” consists of a physical location being managed with Reputation Studio. A Parent ASIN or SKU represents a parent product including its variations. Unique ASIN or SKU or variations represent individual products. An APP refers to a single application instance exchanged through application stores and marketplaces. If additional licenses are added, they shall be prorated. For the avoidance of doubt, Customer’s subscription to use Reputation Studio under this Customer Service Agreement is not a User-based subscription and therefore Customer’s use of Reputation Studio is not limited to a specific number of Users or subject to any other terms in the MSA related to User subscriptions.
4.9 Travel Costs. Customer may be charged up to $10,000 for the first day and $2,500 for each additional day during the same visit for travel within the Continental United States unless otherwise stated in above order or Service Plan. Additional fees may apply to Service Plans and travel prices when traveling outside of the Continental Unites States. Travel must be booked with at least fourteen (14) days notice. Customer may receive a $5000 Emergency Booking Fee for travel requests to within fourteen (14) days of the travel date. Customer must notify Reputation Studio at least fourteen (14) days in advance to cancel or modify travel arrangements. Customer may receive a $7500 fee if travel is canceled or modified within fourteen (14) days of the travel date.
- PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Reputation Studio reserves all rights, title and interest in and to the Purchased Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2. Restrictions. Customer shall not (i) permit any third party to access the Purchased Services except as permitted herein or in a Customer Services Agreement, (ii) create derivate works based on the Purchased Services, (iii) copy, frame or mirror any part or content of the Purchased Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer the Purchased Services, or (v) access the Purchased Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Purchased Services.
5.3. Ownership of Customer Data. Customer is the exclusive owner of all rights, title and interest in and to all Customer Data. Upon expiration or termination of this Agreement for any reason, or at any time upon request, Reputation Studio shall deliver all Customer Data to Customer and destroy any and all copies of the same.
5.4. Suggestions. Reputation Studio shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Purchased Services.
5.6 Prior Intellectual Property Rights. Notwithstanding the foregoing, each Party will retain all of its rights in any materials, ideas, products, concepts, methodologies, processes, techniques, templates, reports, information, inventions, concepts, data (including customer data), know-how and other works, and all intellectual property rights therein owned or controlled by such Party prior to the date of this Agreement, or acquired or developed after the date of this Agreement, but unrelated to this Agreement and developed without reference to or use of the intellectual property or confidential information of the other Party. Customer acknowledges and agrees that Reputation Studio will learn and develop general know-how, processes, tools, and methodologies in the course of providing the Services that Reputation Studio will continue to own and use after the Term without obligation to Customer.
6.1. Definition of Confidential Information. As used herein, “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. Customer’s Confidential Information shall include Customer Data; Reputation Studio’s Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Customer Service Agreements, as well as business and marketing plans and strategies, financial information and projections, technology and technical information, product plans and designs, prices or quotes for services, customer lists and customer information, and all business processes or other information to which a party has access as a result of this Agreement. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes known to the public without breach by the other party 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. It is specifically acknowledged and understood that Confidential Information may consist of (i) information transmitted in written, oral, digital, or any other medium, (ii) all copies and reproductions, in whole or in part, of such information and (iii) all summaries, analyses, compilations, studies, notes or other records which contain, reflect, or are generated from such information.
6.2. Protection of Confidential Information. Except as otherwise expressly permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care and consistent with industry practices and standards); (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such 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.
6.3. Protection of Customer Data.
(a) In addition to and without limiting its obligations under Section 6.2 above, Reputation Studio agrees as follows:
(i) Except to the extent necessary to carry out Reputation Studio’s express obligations under this Agreement, Reputation Studio shall not use Customer Data for any purpose.
(ii) Except to the extent necessary to carry out Reputation Studio’s express obligations under this Agreement, Reputation Studio shall not disclose any Customer Data to any person or entity, including, but not limited to, any of Reputation Studio’s employees, agents, or contractors.
(iii) If Reputation Studio proposes to disclose Customer Data to any person or entity to assist Reputation Studio to perform its duties under this Agreement, Reputation Studio shall first notify Customer in writing of such disclosure and enter into a written confidentiality agreement containing the same confidentiality provisions as are set forth herein with such person or entity under which that person or entity would be restricted from disclosing, using or duplicating such Customer Data, except as contemplated under this Agreement. Notwithstanding any such confidentiality agreement, Reputation Studio shall remain liable for any failure of such person or entity to comply with such confidentiality agreement.
(iv) Reputation Studio represents and warrants that it has established and shall maintain and comply with a written information security program that is consistent with industry standards and that includes reasonably appropriate administrative, technical and physical safeguards designed to meet the following objectives: (1) protect the security and confidentiality of Customer Data; (2) protect against any anticipated threats or hazards to the security or integrity of Customer Data; and (3) protect against unauthorized access to or use of Customer Data (collectively, such safeguards referred to as an “Information Security Program”). Reputation Studio shall notify Customer of any material changes to its Information Security Program. As part of its Information Security Program, Reputation Studio shall take appropriate measures not to retain Customer Data for longer than it needs such information to perform its obligations hereunder, and that it properly disposes of Customer Data, whether such information is in paper, electronic or other form.
(v) Reputation Studio shall not modify Customer Data.
(b) In the event Reputation Studio knows or reasonably believes that there has been any unauthorized access, use or disclosure (or attempted unauthorized access, use or disclosure) to or of any Customer Data, (A) the occurrence of which arises out of any act or omission of Reputation Studio, or (B) while such Customer Data is in the possession, custody or control of, Reputation Studio or Reputation Studio’s employees or agents (collectively, a “Data Security Breach”), Reputation Studio shall, at its sole cost and expense and without limiting Customer’s rights and remedies in law or at equity, take the following actions:
(i) immediately notify Customer of such Data Security Breach;
(ii) promptly report to Customer, to the extent possible the following information: (1) a description of the affected Customer Data; (2) a description of the facts pertaining to the Data Security Breach, including without limitation, the date of the breach and the date of discovery of the breach, (3) the names of the individuals who committed or were involved in the Data Security Breach, (4) the names of the unauthorized individuals or entities to whom Customer Data has been disclosed, and (5) such other information as Customer may reasonably request including, without limitation, the information, data and documentation required by Customer to timely comply with Applicable Law;
(iii) take reasonable steps to remedy the circumstances that permitted any the Data Security Breach to occur and to prohibit further Data Security Breaches of Customer Data and provide Customer with notice thereof;
(iv) share with Customer the results of any computer forensics analysis of any Data Security Breach conducted by Reputation Studio or any expert retained by Reputation Studio;
(v) permit Customer (at its expense) to conduct an investigation, during normal business hours upon prior written notice, and in a manner that does not unduly interfere with Reputation Studio’s operations, of the scope and content of any unauthorized access;
(vi) cooperate with Customer as reasonably necessary to facilitate compliance with any Applicable Law regarding unauthorized access, use or disclosure of Customer Data; and,
(vii) pay reasonable costs and expenses incurred by Customer in responding to the Data Security Breach, including, without limitation. Any notice sent concerning a Data Security Breach shall be mutually agreed upon by the parties, such agreement not to be unreasonably withheld, conditioned or delayed.
6.4. Compelled Disclosure. If the Receiving Party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation demand, or similar process) to disclose any of the Confidential Information, the Receiving Party shall immediately notify the Disclosing Party in writing of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions hereof. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such 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 such Confidential Information.
6.5. Remedies for Breach of Confidentiality/Customer Data Obligations. The parties agree that any breach or threatened breach of this Section 6 of this Agreement by a party could cause not only financial harm, but also irreparable harm to the other party; and that money damages may not provide an adequate remedy for such harm. In the event of a breach or threatened breach of this Section 6 of this Agreement by a party, the other party shall, in addition to any other rights and remedies it may have at law or in equity, be entitled to seek equitable relief, including, without limitation, an injunction (without the necessity of posting any bond or surety) to restrain such breach.
- WARRANTIES AND DISCLAIMERS
7.1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will comply with all Applicable Laws.
7.2. Reputation Studio is not Responsible for Outages Caused by Third Parties. Reputation Studio is not responsible for downtimes or unplanned outages caused by Salesforce.com, eBay, Amazon.com, Google Apps, or any other third-party. Reputation Studio shall use commercially reasonable efforts to work with such third parties to minimize any such downtimes or outages.
7.3. Reputation Studio represents and warrants that: (i) it will perform the Services in a professional and worker-like manner; (ii) the Services will conform in all material respects to any published documentation relating to such Services and any functional/performance requirements or specifications agreed to by the parties in writing.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1. Indemnification. Customer shall defend Reputation Studio, and its officers, directors, employees, Affiliates, stockholders, agents, successors and assigns, against any claim made or brought against Reputation Studio by a third party alleging that Reputation Studio’s authorized use of any Customer Data hereunder infringes or misappropriates the intellectual property rights of a third party or violates Applicable Law, and shall indemnify Reputation Studio for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Reputation Studio in connection with any such Claim; provided, that Reputation Studio (a) promptly give Customer written notice of the claim; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless the settlement unconditionally releases Reputation Studio of all liability); and (c) provide to Customer all reasonable assistance. This provision shall survive the term of this Agreement.
8.2. Exclusive Remedy. This Section 8.1 (Indemnification) 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.
- LIMITATION OF LIABILITY
9.1. Exclusion of Consequential and Related Damages. WITHOUT LIMITING EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. REPUTATION STUDIO’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES WITH RESPECT TO ANY AGREEMENT SHALL NOT EXCEED THE TOTAL UNDISPUTED COMPENSATION PAIDO FOR THE SERVICES SET FORTH FOR A PERIOD OF 12 MONTHS PRIOR. THIS LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, CONTRIBUTION, TORT, OR OTHERWISE.
- TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date Customer executes an Order Form and/or a Customer Services Agreement wherein Customer agrees to all terms and conditions contained within this Agreement and continues throughout the term of Customer’s contractual relationship with Reputation Studio unless stated otherwise within this Agreement.
10.2. Term of Purchased Services. Services purchased by Customer commence on the start date specified in the applicable Customer Services Agreement and continue for the subscription term specified therein. Except as otherwise specified in the above order, all services shall automatically renew for additional periods equal to the expiring subscription term or at least one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least forty-five (45) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Reputation Studio has given Customer written notice of a pricing increase at least 90 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Reputation Studio may increase the per-unit pricing not more than once annually and such increases shall not exceed 5%.
10.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party for 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 which is not stated or dismissed within 30 days.
10.4. Surviving Provisions. Section 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7 (Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (Notices, Governing Law and Jurisdiction) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
- NOTICES, GOVERNING LAW AND JURISDICTION
11.1. Notices. All notices, requests, demands and other communications required to or permitted to be given under this Agreement shall be in writing and shall be conclusively deemed to have been delivered when: (i) hand delivered to the other Party; or (ii) upon deposit in the U.S. Post Office to the other party; or (iii) electronic mail transmission as set forth below:
11.1.1 If to Reputation Studio:
Review Studio, Inc.
2750 W Rasmussen Rd Ste 104, Park City, UT 84098
11.1.2 If to Customer:
11.2. Agreement to Governing Law. THIS AGREEMENT AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. 11.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- GENERAL PROVISIONS
12.1. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.6. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Customer Services Agreements executed in accordance with this Agreement, constitutes the entire agreement between the parties 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 shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Customer Services Agreement, the terms of such exhibit, addendum or Customer Services Agreement shall prevail.
12.7 Foreign Corrupt Practices Act. Reputation Studio shall comply with all applicable anti-corruption laws, including, without limitation, the Canadian OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977, and will not pay or give, offer or promise to pay or give, or authorize the promise, payment or giving directly or indirectly of any monies or anything of value to any person or firm, including, but not limited to, those employed by or acting for or on behalf of any governmental customer, any government official or employee, any political party, any employee of any political party, any member of a ruling or royal family, or any candidate for political office for the purpose of inducing or rewarding any favorable action in any matter related to the subject of this Agreement or the business of Licensee.
12.8 Attorneys’ Fees and Costs. In the event of any legal or other action is necessary to enforce this Agreement, the prevailing Party shall be entitled to its costs and expenses, including reasonable attorney’s fees, incurred in connection with such action.
12.9 Non-Solicitation. During the term of this Agreement, and for a period of twelve (12) months following the termination the Agreement, the Parties, nor any of the Parties’ current or future employees, will not actively solicit for employment those employees or subcontractor employees of the other. However, this restriction does not apply to employees or ex-employees who responds to and are hired through a general job posting or public advertisement made in the ordinary course of business.
12.10 No Partnership. Nothing herein contained shall constitute a partnership or joint venture between the Parties or constitute such on any officer or agent of the Parties. No Party shall hold itself out contrary to the terms of this section and no Party shall become liable by any representation, act or omission of the other contrary to the provisions hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not.
- ADDITIONAL TERMS
13.1 General Audit. Reputation Studio shall keep accurate books and records relating to financial, operational and security matters relating to the Services. Customer and its agents, at Customer’s own cost, are entitled to inspect and audit Reputation Studio’s records, operations and facilities relating to the Services upon reasonable prior written notice during normal business hours (or such other time as may be required under the circumstances) to ensure Reputation Studio’s compliance with this Agreement, compliance with its Information Security Program (defined above) or any other security controls, policies and procedures required hereunder and in connection with any regulatory requirements of Customer relating to the Services.
13.2 Force Majeure. Neither Reputation Studio nor Customer shall be held liable for failure of or delay in performing its obligations under this Agreement if such failure or delay is the result of an act of God, such as earthquake, hurricane, tornado, flooding, or other natural disaster, or in the case of war, action of foreign enemies, terrorist activities, labor dispute or strike, government sanction, blockage, embargo, or failure of electrical service. The non-performing party must make every reasonable attempt to minimize delay of performance. In the event force majeure continues longer than 120 days, either party may terminate the Agreement.
13.3 Insurance Coverage.
(a) During the term of the Agreement, and at its own cost, Reputation Studio shall obtain and maintain the following insurance coverage. With respect to claims-made policies, coverage will be maintained for at least an additional 2 years after completion of all Purchased Services. The amounts as specified are minimums only. The actual amounts above the minimums shall be determined by Reputation Studio. In addition, for any Services that are authorized to be subcontracted, Reputation Studio shall require each subcontractor to procure and maintain all insurance as outlined herein.
(i) Professional Errors & Omissions insurance covering financial losses suffered by Customer due to error, omission or negligence of Reputation Studio including its employees and agents in the performance of the Services with a minimum per claim limit of not less than one million dollars ($1,000,000) and five million dollars ($5,000,000) in the aggregate.
(ii) Technology errors and omissions insurance covering any failure of Reputation Studio’s Deliverables or Services to perform as promised under the Agreement, including, without limitation, (1) replacement or restoration of electronic data, (2) intellectual property endorsement, and (3) cyber risk, privacy breach and/or network security damages and mitigation costs with limits of not less than $1,000,000 per claim and combined annual aggregate liability limit of not less than $1,000,000.
(iii) Commercial General Liability coverage including coverage for Premises/Operations, Contractual Liability, Products/Completed Operations, and Personal Injury and Advertising Injury, with limits of not less than $1,000,000 per claim and $1,000,000 per occurrence. Reputation Studio shall maintain Products/Completed Operations coverage for a period of at least three (3) years after completion of all Services provided under this Agreement.
(iv) Umbrella or Excess Liability coverage with limits of not less than $1,000,000 per claim and limits of not less than $1,000,000 per occurrence.
(v) Workers’ Compensation Insurance for its employees in accordance with the statutory requirements of the state where the work is being performed.
(vi) Fidelity and computer crime insurance in an amount of not less than one million dollars ($1,000,000) per occurrence and in the aggregate, such insurance to extend to loss Reputation Studio or Customer might suffer as a result of fraudulent or dishonest acts of Reputation Studio’s employees, agents or subcontractors in performing any or all of the Services under this Agreement. Reputation Studio will ensure that such insurance covers its subcontractors.
(vii) If Reputation Studio will be using motor vehicles in the performance of Services, then Automobile Liability insuring any auto, including hired autos, and non-owned autos with limits of not less than $1,000,000 per claim and $1,000,000 per occurrence.
(b) Each insurance policy shall be placed with an insurance company that has an A.M. Best’s Rating of not less than “A” and a policyholder surplus of at least $100,000,000.
(c) Any Commercial General Liability policy and Umbrella or Excess Liability policy, shall be endorsed to add Customer as an additional insured and contain a standard separation of insured clause.
(d) Each policy shall be endorsed to provide that the insurer will give Customer a minimum of thirty (30) days prior written notice of cancellation and intent not to renew. If Reputation Studio intends to make a material change in policies from that listed in this Exhibit, Reputation Studio shall give Customer a minimum of thirty (30) days prior written notice of the change, including without limitation any material reduction in the policy limits of any policy or material reduction in the scope of coverage.
(e) With respect to policies written on a “claims-made” basis, such insurance shall provide for a retroactive date not later than the commencement of Services under this Agreement. Reputation Studio and/or subcontractors shall provide evidence of renewals of any claims made policies each year, including for two (2) years after the completion of services. If an event occurs, arising from the performance of this Agreement, which is covered under the claims made policy, Reputation Studio and/or subcontractor shall promptly notice the carrier and provide a copy of the notice of claim to Customer. Customer may, with notice to Reputation Studio and/or subcontractor, provide notice of claim under any claims made policy if Reputation Studio and/or subcontractor fail to do so within a reasonable time. All of the insurance required hereunder will be primary to any or all other insurance coverage in effect for Customer.
(f) In addition to, but not in place of, the indemnification obligations outlined in this Agreement, it is the intent of the parties that any claims against Customer arising out of the Agreement will be paid, up to the limits of liability, by the insurance policies listed in this Exhibit.
- 4 Publicity: Reputation Studio will not, without Customer’s prior written approval, cause or permit to be released any publicity, including press releases, advertisements, news/web releases, announcements, customer lists that include any name or trademark of Customer, or any other form of public communication that relate to the Services hereunder (including any use of third party platforms), Reputation Studio’s relationship with Customer or this Agreement, or denial or confirmation of same.