MASTER SERVICES AGREEMENT

 

Version: 8.22.2022

This Iterable, Inc. Master Services Agreement (the “Agreement“) by and between Iterable, Inc. (“Iterable”), and Customer, with name and address specified in an accompanying Enterprise Order is made effective as of the Effective Date specified in the Enterprise Order. By executing the Enterprise Order that references this Agreement, Customer agrees to the terms of this Agreement.

Iterable and Customer may each be referred to herein as a “Party” and collectively, as the “Parties.”

 

RECITALS

A. Iterable provides a platform and related services for marketing automation & personalization.

B. Customer wishes to engage Iterable to provide Services (as defined below) as described in an Enterprise Order in support of Customer’s communications efforts.

C. Iterable wishes to provide Services to Customer subject to the terms and conditions of this Agreement.

Therefore, in consideration of the promises and covenants contained herein, the Parties agree as follows:

 

AGREEMENT

1. Definitions.

1.1 “Confidential Information” means proprietary or confidential information that is marked as “proprietary” or “confidential” or should reasonably be considered “proprietary” or “confidential” given the nature of the information and the circumstances surrounding disclosure. Information shall not be considered Confidential Information if it: (a) is or becomes publicly available through no fault, default or breach of or by the recipient; (b) is acquired by the recipient from an independent third party; (c) is or was independently developed by the recipient without use of, or reference to, Confidential Information of the discloser; (d) was lawfully known to the recipient without an obligation of confidentiality prior to disclosure by the discloser; or (e) is furnished to others by the discloser without restriction on disclosure.

1.2 “Iterable Platform” means the Iterable proprietary messaging creation, distribution, tracking and optimization product and services provided to Customer pursuant to this Agreement.

1.3 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority (or any department, division, agency or instrumentality thereof), unincorporated organization, trust, association or other entity.

1.4 “Services” means the services Iterable provides to Customer under an Enterprise Order.

1.5 “Enterprise Order” means a description of the Services to be provided by Iterable to Customer, which will specify the Fees (as defined in Section 5) to be paid and the payment schedule. The Enterprise Order must be signed by both Parties.

1.6 “Usage Limitations” means any of the limitations specified in the Enterprise Order.

1.7 “Authorized User” means Customer’s employees, representatives, consultants, contractors, or agents who are authorized to access and use the Services in accordance with this Agreement.

 

2. Term and Termination.

2.1 Term. This Agreement will be effective commencing on the Effective Date of the Enterprise Order and, unless a shorter or longer term is established in the Enterprise Order, shall continue for additional successive one (1) year periods (each, a “Renewal Term”) unless terminated by either party not less than thirty (30) days prior to the end of the then current Renewal Term.

2.2 Termination.

(a) For Cause. Either party will have the right to terminate this Agreement, and the applicable Enterprise Order, if the other party breaches any material term or condition of this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five days after receipt of written notice from Company. Either party may terminate this Agreement if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.

(b) For violation of Acceptable Use Policy. Iterable has the right to terminate the Agreement, and be paid a penalty (the “Penalty”) equal to twice the previous month’s service fees by Customer, in the case where Customer violates the Acceptable Use Policy during the term of this Agreement.

2.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement: (a) Iterable may immediately cease providing Services hereunder; (b) any and all payment obligations of Customer under this Agreement will become due immediately provided Iterable is not in breach of this Agreement; (c) within 30 days after such expiration or termination, each party shall return or destroy all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. Upon any termination for cause by Customer, Iterable shall refund Customer any prepaid Fees applicable to the period after the date of termination.

2.4 Survival. The provisions of Sections 2.3, 5, 7, 8, 9, 10, 12.2, and 12.3 shall survive termination or expiration.

 

3. The Services.

3.1 Scope of Services. Iterable shall make the Services available to Customer on the terms set forth in this Agreement and the applicable Enterprise Order. The Service may only be used in accordance with the terms set forth on the Enterprise Order, and only during the Term. Customer acknowledges that operation of the Iterable Platform might require use of certain third party software (for example, an operating system) and Iterable will not provide such third party software to Customer, and that Customer will have the sole responsibility to obtain valid licenses to such third party software, at Customer’s sole expense.

3.2 Use of the Services. Customer’s use of the Iterable Platform is subject to, and Customer agrees to abide by, Iterable’s Acceptable Use Policy.

3.3 Customer will make no use of the Iterable Platform for other than its intended uses that are directly related to the internal business operations of Customer, and will not make any use thereof to offer the benefits or services to third parties, whether such arrangement is in the nature of a service bureau, out-sourcing service, joint development relationship or any other similar service or business nor will Customer distribute, rent, lease, sell, license, or otherwise transfer rights in the Iterable Platform to any person or entity.

3.4 Restrictions. Customer may not use, copy, modify, display, or sublicense the Iterable Platform, in whole or in part, except as expressly provided in this Agreement. Without limiting the generality of the foregoing, Customer will abide by the following additional restrictions on the use and access of, and to, the Iterable Platform:

• a) No Modification. Customer will make no modification to, or adaptation of, the Iterable Platform nor merge it into any other programs or other materials, nor create derivative works based on the Iterable Platform. Customer will have no access to, or rights or license to modify, the source code for the Iterable Platform. Customer will not attempt, or allow others under its control to attempt, to obtain or derive information from or about the Iterable Platform through disassembly, decompiling, reverse engineering or any other means.
• b) Unauthorized Access. Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Iterable Platform and in the event of any such unauthorized access or use, promptly notify Iterable. Customer is responsible for all activities that occur under Customer’s user accounts. Customer is responsible for maintaining the security and confidentiality of all Authorized User’s usernames and passwords.
• c) Prohibited Activities. Neither Customer nor any of Customer’s Authorized Users of the Iterable Platform shall do any of the following: (a) engage in activity that involves the transmission of “junk mail” or unsolicited mass mailing or “spam” or harvesting or otherwise collecting personally identifiable information about website or mobile app users, including names, phone numbers, addresses, email addresses, (collectively, “User Data”) without their consent; (b) engage in activity, or submit materials, or promote information that violates any privacy laws, regulations or policies; (c) submit materials that provide instructional information about illegal activities such as violating someone’s privacy or providing or creating computer viruses; (d) engage in activities or submit materials that solicit passwords or personally identifiable information for unlawful purposes from other users; (k) engage in unauthorized commercial activities and/or sales without the recipient’s prior written consent such as advertising, solicitations, contests, sweepstakes, barter, and pyramid schemes; (l) use any robot, spider, other automatic device, or manual process to monitor, copy, or “scrape” web pages or the content contained in the Iterable Platform or for any other unauthorized purpose without Iterable’s prior written consent; (m) use any device, software, or routine to interfere or attempt to interfere with the proper working of the Iterable Platform; (n) decompile, reverse engineer, or disassemble the Iterable Platform or attempt to do so; or (o) take any action that imposes 10x or greater of the Customer’s normal load on Iterable’s API endpoints and causes harm to the Iterable Platform and other Iterable customers. Iterable shall have the right, without notice, to terminate any Authorized User for violation of this section. Customer shall not be entitled to a refund for any fees paid in the event of a termination of Agreement or Authorized User pursuant to this Section.
• d) Limited Grant. During the term of this Agreement, Customer on behalf of itself and any of its Authorized Users of the Iterable Platform grants to Iterable a worldwide, non- exclusive, royalty-free license to use, publicly display, distribute, transmit, stream, or otherwise broadcast the content submitted by Customer and its Authorized Users solely as a part of the Iterable Platform for Customer’s (and its Authorized Users’) sole use.

3.5 Vendors and Transmission. Customer acknowledges and understands that Iterable may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to provide the Iterable Platform. Customer further acknowledges and understands that the technical processing and transmission of certain messaging services such email Services, including Customer’s or its Authorized User’s content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

 

4. Proprietary Rights and License Grants.

4.1 Iterable Platform. Iterable hereby grants to Customer during the Term a worldwide, nonexclusive, nontransferable license, without the right to sublicense, to access and use the Iterable Platform and associated documentation on a software-as-a-service basis solely in connection with Customer’s communications efforts as described in an Enterprise Order (each such effort, a “Project”). All intellectual property rights covering the Iterable Platform and work conducted by Iterable hereunder shall remain solely and exclusively with Iterable. Customer may access and use the Iterable Platform, but will have no right to receive a copy of the object code or source code of the Iterable Platform. Customer understands and agrees that Iterable will own and has the right use and disclose any anonymous, non-personally identifiable, aggregated data and information related to the Project for the following purposes: (i) for scheduling and service purposes related to the Project; and (ii) general reporting and use on the Iterable Platform, including the compilation of statistics.

4.2 No License Grant. The parties agree that Iterable shall have no right, title or interest to Customer’s intellectual property and Customer data.

 

5. Fees; Payment.

5.1 Fees. Customer shall pay the fees specified in the applicable Enterprise Order (the “Fees”). Fees are quoted in United States dollars. Notwithstanding any rights under Section 2.2, fees are non-refundable and non-cancellable (i.e., the Services contracted for cannot be decreased during the Term or during any Renewal Term) and are based on the Services and Usage Limitations specified in the Enterprise Order. Fees for additional Services or increased Usage Limitations during a billing period shall be charged for that billing period and going forward based on the number of months remaining in the Term.

5.2 Payment. Iterable shall invoice Customer for Fees in advance and otherwise in accordance with the terms of the relevant Enterprise Order. All payments made under this Agreement shall be in United States dollars unless otherwise specified in the Enterprise Order. Any payment not received from Customer by the due date will accrue late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In the event of a failure to pay, Customer agrees to pay Iterable’s costs of collection, including reasonable attorney’s fees and costs.

5.3 Late Payments. If Customer’s account is 30 days or more overdue, in addition to any of its other rights or remedies, Iterable reserves the right to suspend the Services provided to Customer, without liability to the Customer, until the Fees are paid in full.

5.4 Taxes. Customer is responsible for payment of all taxes invoiced to Customer or as specified in the applicable Enterprise Order unless Customer provides Iterable with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

6. Support.

6.1 Ongoing Customer Support. Iterable will provide Customer with avenues for ongoing support, including the Iterable Support Center at http://support.iterable.com and email support via support@iterable.com. Any special support arrangements will be specified in the Enterprise Order.

 

7. Confidentiality.

7.1 Confidential Information. Each Party acknowledges that in connection with this Agreement, such Party may gain access to Confidential Information of the other Party. Each Party agrees, during the Term and for three years thereafter, to: (a) not use the Disclosing Party’s Confidential Information other than as strictly necessary to exercise its rights and perform its obligations under this Agreement; (b) not use any of the Disclosing Party’s Confidential Information directly or indirectly in any manner to the detriment of the Disclosing Party or to obtain any competitive benefit with respect to the Disclosing Party; and (c) take reasonable care to maintain the Disclosing Party’s Confidential Information in strict confidence, and subject to Section 7.2 below, not disclose the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent.

7.2 Compelled Disclosure. Nothing in this Agreement shall prevent the Receiving Party from disclosing information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (a) assert the confidential nature of the information to the agency; (b) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose, to the extent permitted; and (c) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

7.3 Public Announcement. Iterable may use Customer’s logo and name as appropriate on the Iterable website and certain marketing materials. Additionally, Customer agrees to partner with Iterable to provide a reference, case study, video testimonial, or press release regarding Customer’s use of the Services. However, neither Party may disclose the terms of this Agreement without the other Party’s prior written approval.

7.4 Changes in policy. Iterable agrees to notify Customer, via email, if there are substantial changes to Iterable’s privacy policy.

 

8. Representations and Warranties.

8.1 Each Party represents and warrants that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) when executed and delivered by both Parties, the Enterprise Order will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (d) it shall abide by all applicable federal, state and local laws and regulations with respect to online activities, use of end user data and the products and services offered by each party in connection with this Agreement. Iterable represents and warrants that it has the right and license to distribute the products and services and that Customer’s use of the products and services as contemplated by this Agreement will not infringe the intellectual property rights of any third party.

8.2 Disclaimer. THE ITERABLE PLATFORM AND SERVICES ARE PROVIDED BY ITERABLE ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND. ITERABLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. ITERABLE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK FOR ITS USE OF THE SERVICES AND ITS RELIANCE THEREON.

 

9. Indemnification.

9.1 Iterable Indemnification. Iterable (the one providing indemnification and together with its officers, employees, parents and agents, “Indemnifying Party”) shall defend and indemnify the other Party (the one seeking indemnification, “Indemnified Party”) from any claims, demands, suits or proceedings made or brought by a third party (each, an “ Action”) that arises out of or results from (a) Iterable’s actual or alleged infringement, misappropriation or other violation of third-party intellectual property rights; and/or (b) any gross negligence or willful misconduct by Iterable.

9.2 Indemnification by Customer. Customer hereby agrees to defend and indemnify Iterable and its officers, employees or agents from any claims, demands, suits or proceedings made or brought by a third party that arises from (a) the content or effects of any messages distributed by Customer or events hosted by Customer using the Iterable Services (b) arises from or relates to Customer’s use of the Iterable Services in contravention of the terms of the Acceptable Use Policy or Section 3.3; and/or (c) any gross negligence or willful misconduct by Customer. In addition, Customer acknowledges and agrees that Iterable has the right to seek damages when Customer uses the Iterable Platform for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement.

9.3 Procedure. The Indemnified Party agrees to notify the Indemnifying Party in writing of (provided that failure to provide notice will not relieve the Indemnifying Party of its obligations under this Section, except to the extent such failure causes the Indemnifying Party to be prejudiced), render reasonable assistance, and permit the Indemnifying Party to direct the defense or settlement of, such action or claim, except that the Indemnifying Partys hall not settle any such suit or claim without the Indemnified Party’s prior written approval unless such settlement (a) includes a complete release of the Indemnified Party, (b) does not require the Indemnified Party to pay any amount or deliver any other consideration, and places no restriction on the future conduct of the Indemnified Party.

 

10. Limitation of Liability.

10.1 INDIRECT DAMAGES. CUSTOMER ACKNOWLEDGES THAT ITERABLE HAS NOT PRICED THE ITERABLE PLATFORM TO CONTEMPLATE THE RISKS OF RELIANCE BY CUSTOMER ON THE ITERABLE PLATFORM OR TO HAVE OR ASSUME SUBSTANTIAL LIABILITY OR RESPONSIBILITY FOR CUSTOMER’S DECISIONS. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 OR ANY LIABILITY RESULTING FROM THE BREACH OF A PARTY’S OBLIGATIONS AS SET FORTH IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF USE, LOSS OR CORRUPTION OF DATA OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES , OR FOR ANY CLAIM BY ANY OTHER PARTY.

10.2 DIRECT DAMAGES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, EITHER PARTY IS FOUND LIABLE TO THE OTHER FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO ITERABLE IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM ACCRUED, LESS ANY DAMAGES PREVIOUSLY PAID BY ITERABLE TO CUSTOMER. CUSTOMER AGREES THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK HEREUNDER AND IS A MATERIAL INDUCEMENT TO ITERABLE’S ENTERING INTO THIS AGREEMENT, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY.

 

11. Force Majeure.

Neither Party will be liable to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the Parties. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire, explosions, any governmental action, pandemics (not including any Customer obligations to pay fees under 2.2(a) that may be related to pandemics), flood, insurrection, power failure, hackers, DDOS attacks, or embargo.

 

12. Miscellaneous.

12.1 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other Party; provided, however, that either party may assign its rights under this Agreement to a parent, affiliate, subsidiary, or successor to its business, if any.

12.2 Governing Law and Venue. This Agreement will be construed and interpreted according to the laws of the State of California without regard to conflict of laws provisions. Customer must comply, at its own expense, with the provisions of all federal, state and local laws, regulations, ordinances, requirements and codes that are applicable to the usage of the Services hereunder. All disputes under this Agreement will be brought in the state courts and the federal courts located in San Francisco, California, and the Parties hereby consent to the personal jurisdiction and venue of these courts. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to this Agreement.

12.3 Notices. For purposes of communication, approval, or authorization concerning any matter pursuant to this Agreement, all communications will be in writing, or if oral will be reduced to writing and made either by (a) overnight courier, first class U.S. Mail, to the attention of “General Counsel” at the recipient Party’s address first written above, or (b) via email to the Parties’ respective General Counsels, or other personnel as indicated on the Enterprise Order.

12.4 Relationship of the Parties. The sole relationship between the Parties shall be that of independent contractors. Nothing herein shall be construed to constitute the Parties as partners, joint venturers, or agents of each other in any way whatsoever.

12.5 Counterparts. This Agreement may be executed in a number of counterparts with the same effect as if all signatories had signed the same document. If so executed, the counterparts shall be deemed an original for all purposes and shall collectively constitute one agreement. Each party agrees that this Agreement, any Enterprise Order and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on such documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

12.6 Waiver. The failure of any Party to require performance by the other Party of any provisions hereof shall not affect the full right to require such Performance at any time thereafter; nor shall the waiver by a Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

12.7 Severability. In the event that any provision of this Agreement, or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

12.8 Amendments. This Agreement may only be amended by a written agreement signed by both Parties.

12.9 Entire Agreement. This Agreement, including the Acceptable Use Policy, and all Enterprise Orders executed in connection with this Agreement collectively set forth the entire agreement and supersede any and all prior agreements, written or oral, between the Parties with respect to the Services set forth herein. No term or condition other than those set forth herein or an Enterprise Order is binding on either party unless in writing signed by duly authorized representatives of the parties. In the event of a conflict between the provisions of this Agreement and any Enterprise Order, the order of precedence shall be the applicable Enterprise Order, followed by this Agreement.

 

Last Updated: August 22, 2022