INSTAPAGE, INC. – MASTER SERVICE AGREEMENT
ATTENTION. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING MASTER SERVICE AGREEMENT BEFORE EXECUTING THE STANDARD INSTAPAGE ORDER FORM. THE FOLLOWING MASTER SERVICE AGREEMENT WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE STANDARD INSTAPAGE, INC. ORDER FORM (COLLECTIVELY, “AGREEMENT”). BY ACCEPTING THIS AGREEMENT THROUGH THE EXECUTION AND SUBMISSION OF THE STANDARD INSTAPAGE ORDER FORM, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS MASTER SERVICE 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 TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
1. SERVICES AND SUPPORT
1.1 In consideration of (and subject to) the payment of the fees and marketing obligations listed on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Master Service Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services selected in the Order Form and the applicable General Service Level Support Terms (as described on Exhibit B attached hereto and incorporated herein).
1.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s account (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 The Agreement is a contract for Services and the applicable hosted software will be installed, accessed and maintained only by or for Service Provider and no license is granted thereto. Subject to all terms of the Agreement, Service Provider hereby grants to Customer, for the term set forth herein, a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use, reproduce and distribute internally within Customer’s business, and for Customer’s internal use only (and only in accordance with any applicable documentation), the documentation and data provided to Customer by Service Provider through the use of the Services (the “Customer Data”). Customer will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, copy, distribute, broadcast, transmit, reproduce, publish, license, transfer, sell, scrape, mirror, frame, or otherwise use any information or material obtained from or through the Instapage website located at https://instapage.com (the “Website”); engage in any data scraping, website scraping, screen scraping, or all other forms of automated and/or manual data and content mining except to the extent expressly permitted by the terms of this Agreement; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; use the Services or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party; publish the Customer Data without the prior written consent of Service Provider; or remove any proprietary notices or labels. Service Provider retains all right, title, interest (including, but not limited, to intellectual property rights) in and to the Services and anything developed and delivered under this Agreement. Nothing in this Agreement shall be construed as granting Customer any right, title or interest in or to the Services.
2.2 Unless explicitly noted in the Order Form, Customer’s use of Instapage will be limited to employees of the Customer and only for use on post-click landing pages under the Customer’s brand name.
2.3 Upon approval by Customer, Service Provider may (i) produce and publish a case study on its website regarding the Customer’s use of the Services, and (ii) create self-promotional materials such as press releases, advertisements, brochures, etc. Upon approval by Customer, Customer shall provide a mutually agreeable quote with respect to Service Provider and the Services, to be used for Service Provider’s marketing and publicity purposes.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.
3.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. Visitor data, including all personally identifiable information, is owned by the Customer and may be permanently deleted at any time by the Customer. In the performance of the Services, Service Provider is expressly authorized to collect and shall own general user and visitor metadata and may use the aggregate response rate and other aggregate measures of the Services’ performance, in order to provide improved Services to the Customer, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. PAYMENT OF FEES
4.1 Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. The fees for any renewal term shall be at Service Provider’s then standard rates currently in effect, or if applicable, as otherwise stated in the Order Form. All Fees paid under this Agreement are nonrefundable.
4.2 If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider shall respond to Customer within three (3) business days after receiving such inquires.
4.3 Service Provider may choose to bill through an invoice, in which case full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Service Provider’s net income.
5.1 Subject to earlier termination as provided below, the initial Service term is as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional terms (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current Term. Services will be renewed at the same pricing tier in place during the immediately prior term, unless Customer has been given a written notice of a pricing change at least 45 days before the end of that prior term, in which case the pricing change will be effective upon renewal and thereafter.
5.2 In addition to any other remedies it may have, Service Provider may also terminate the Order Form upon ten (10) calendar days written notice if Customer materially breaches any of the terms or conditions of the Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer shall pay in full all remaining Fees payable through the remainder of the Initial Service Term. If the Order Form is terminated as a result of a material breach by Customer after the Initial Service Term, Customer will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 Termination (which includes expiration or non-renewal) of the Order Form shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form.
5.4 Upon the termination of the Agreement or Services, Customer’s right to access or use the Services shall terminate. In addition, Service Provider may delete Customer’s account and Customer’s Content (as defined below) immediately upon termination or Service Provider may keep Customer’s account and Content for up to 60 days following the last day of the month of termination.
5.5 The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”) shall survive termination of the Agreement.
6.1 Service Provider agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with the Order Form infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
6.2 Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2.1 to 2.3, or otherwise from Customer’s use of Services excluded from Service Provider’s aforementioned indemnity obligations in the second to last sentence of Section 6.1, above.
7. WARRANTY AND DISCLAIMER
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PURPOSE AND NON-INFRINGEMENT. Further, Service Provider makes no representation or warranty as to the reliability, accuracy, completeness or authenticity of any information contained in the Website. Customer agrees that it must evaluate, and bear all risks associated with, the use of any data, information, and other materials and content (collectively, “Content”) on the Website (including risks relating to the infringement or potential infringement of third party intellectual property rights), that Customer may not rely on said Content, and that under no circumstances will Service Provider be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content on the Website or obtained through the Website.
IN ADDITION, CUSTOMER ACKNOWLEDGES THAT SERVICE PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT (INCLUDING THE ORDER FORM) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THE AGREEMENT OR RELATING TO ANY SUBJECT MATTER THEREOF IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED HEREIN. If applicable law limits the application of the provisions of this section 8, a party’s liability will be limited to the maximum extent permissible.
If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent but may be assigned by Service Provider without restriction. Both parties agree that the Order Form and this Master Service Agreement, including all exhibits, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may be executed in one or more counterparts. The parties agree that any material breach of Section 2 or 3 of these Terms of Service will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in additional to any other relief to which the owner of such Proprietary Information may be entitled. The Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to the Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Order Form.
General Service Level Support Terms
1. Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99.9% of all Scheduled Availability Time. “Scheduled Availability Time” shall be measured on a monthly basis, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Service Provider (such as internet outages or outages with respect to Customer’s network or internet access). Service Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. In the event of any unexcused downtime, Service Provider will credit the prorated amount to the Customer.
2. Maintenance. Service Provider will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services.
3. Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of the vendor profile data. Additionally, Customer will be responsible for communicating and managing the vendor registration, vendor training and change management process.
4. Support. Service Provider is available to receive product support inquiries via email or the Service Provider website 24 hours per day. Service Provider Standard Support Hours are 02:00 AM to 05:00 PM Pacific Time Monday through Friday for support regarding Customer’s use of the Services.
5. Customer Support List. Customer shall provide to Service Provider, and keep current, a list of designated contacts and contact information (the “Support List”) for Service Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
6. Classification of Problems. Service Provider shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.
7. Uptime Service Credits.
If the Scheduled Availability Time for Customer’s post-click landing pages in any one month is less than 99.9%, then Customer shall receive credits according to the following schedule:
- 99.00% – < 99.9% Service Uptime in any given month: 10% of Monthly Service Fee credit for that month
- 95.00% – < 99.00% Service Uptime in any given month: 25% of Monthly Service Fee credit for that month
- < 95.00% Service Uptime in any given month: 50% of Monthly Service Fee credit for that month
8. SEVERITY LEVELS AND RESPONSE TIMES
|Priority code||Priority description||Action required||Expected response times||Guaranteed Response Times|
|P1||Mission Critical. Data collection services and data reporting services are down, causing critical impact to business operations; no workaround available||Escalation in accordance with provisions in “Escalation procedures” section below.||‘INSTAPAGE will provide a status update by telephone and/or e-mail within one (1) business hour within the initial occurrence of the P1 issue. INSTAPAGE’s goal for resolution of P1 issues is within one (1) calendar day of Customer’s receipt of issue notification.||INSTAPAGE will provide a status update by telephone and/or e-mail within four (4) business hours within the initial occurrence of the P1 issue.|
|P2||High. Data collection services and data reporting services are significantly degraded and/or impacting significant aspects of business operations.||Escalation in accordance with provisions in “Escalation procedures” section below.||INSTAPAGE will provide a status update by telephone, e-mail, or via automated notification within the reporting interface of the Measurement Services as mutually agreed upon by the Parties, as warranted until (i) the problem is resolved, (ii) an acceptable workaround is found or (iii) the problem is determined to be outside of INSTAPAGE’s ability to control.||INSTAPAGE will provide a status update by eight (8) business hours within the initial occurrence of the P2 issue.|
|Priority code||Contact type||Name of INSTAPAGE contact / Role||Contact Email address||Time delay before Escalation to next level|
|P1||Primary||Key Tech Staffer/ First Available||[email protected]||2 hours|
|Secondary||Dedicated Account Manager||[email protected]||4 hours|
|P1||Primary||All Staff / First Available||[email protected]||8 hours|
|Secondary||Dedicated Account Manager||[email protected]||12 hours|
Instapage Application and post-click landing page Servers status can be viewed in real-time at status.instapage.com and Customer may subscribe to updates from there.