Last updated: May 3, 2017
By agreeing to this Clickwrap Master Services Agreement (“Agreement”) you represent that you have the right to bind your organization (“Customer”) to its terms and conditions. If you do not have such right you should not agree to this Agreement or use the Services.
Customer may order from Act-On (a) rights to access and use Act-On’s online service including any add-ons or modules (collectively the “Services”) and/or (b) related professional services (collectively, “Professional Services”). The specifics of each Customer order will be set forth on order forms or similar documents agreed to by the parties (“Order Forms”). Each Order Form constitutes a binding commitment to purchase the items described on such Order Form under this Agreement. All Order Forms are incorporated herein by reference.
2.1 Scope and Access Rights. Customer may access and use the Services in accordance with and subject to any restrictions set forth in this Agreement and other documents expressly referenced herein. Subject to the terms and conditions of this Agreement, Act-On hereby grants to Customer and its designated users (“Users”) a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right to (a) access and use the Services for Customer’s business purposes in accordance with Act-On’s published technical documentation made available by Act-On (collectively, “Documentation”); and (b) use the Documentation in connection with the Services. If the Order Form indicates that Customer is an Agency (as defined in the Order Form) then Customer may use the Services for the benefit of its customers, subject to the restrictions set forth in the Order Form. The Services will include an interface component (“Interface”) to allow individual users and administrators designated by Agency Customers (“Agency Users”) to configure and manage the Services. Each Agency User will be provided access to and use of the Interface. Customer is responsible for ensuring the security and confidentiality of all access credentials and for all liabilities incurred through use of the Services by Users and Agency Users.
2.2 Restrictions. Except as otherwise permitted hereunder, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Services, except to the extent such restriction is not permitted by law; (b) distribute, transfer, sublicense, or otherwise make available the Services (or any portion thereof) to third parties other than Users, or as otherwise provided herein; (c) use the Services in violation of the Documentation or any applicable law, rule or regulation, including any export/import laws, or (d) in any way access, use, or copy any portion of the Services to directly or indirectly develop, promote, distribute, sell or support any competitive product or service.
2.3 Support Services. Act-On will provide Customer with technical support services pursuant to the terms and conditions set forth at https://act-on.com/support-terms/.
2.4 Professional Services. Act-On or its third party providers will perform the Professional Services set forth on the applicable Order Form (if any). The particulars of each Professional Services engagement will be as set forth in statements of work (each an “SOW”) entered into by the parties. Act-On will retain all right, title and interest in and to all deliverables (including any and all intellectual, property rights therein) provided under each SOW (“Deliverables”) except to the extent that they contain any pre-existing Customer intellectual property. Customer’s rights to the Deliverables shall be the same as Customer’s rights to the Services to which such Deliverables pertain.
2. 5 Customer Content. Customer (a) owns all content and data that it uploads via the Services (“Customer Content”), including, without limitation, any data about or relating to email recipients (“Recipient Data”); (b) shall be solely responsible for the accuracy and quality of any and all Customer Content; (c) acknowledges that the performance of the Services is dependent on the accuracy and quality of Customer Content and Customer’s compliance with industry best practices with respect to use of the Services; and (d) understands that Act-On cannot guarantee deliverability of the Customer Content to Recipients (defined below). Customer is allotted 4 gigabytes (GB) of media storage space (“Default Media Storage Capacity”). Customer may purchase additional capacity beyond the Default Capacity in blocks of 10GB each. Act-On may collect and use data derived from Customer’s use of the Services (“Usage Data”) for its own internal business purposes, and may only disclose Usage Data in an anonymous, aggregated format that in no way identifies Customer or any of the recipients of Customer Content (“Recipients”). Customer acknowledges that the Services collects certain behavioral data regarding actions performed by Recipients in response to campaigns generated by the Customer via the Services that can be accessed and used by the Customer exclusively for Customer’s benefit (“Behavioral Data”). Act-On stores Behavioral Data for two (2) years from the date it is generated. If Customer requests that Act-On store Behavioral Data for longer than two (2) years, such additional storage may be subject to additional Fees, as set forth in the applicable Order Form. To the extent (if any) that Act-On acts as a data processor in processing personal data in connection with the Services: (a) Act-On will only process such personal data for the purposes necessary for providing the Services and in accordance with Customer’s written instructions (which Customer agrees will be consistent with the Agreement) and (b) Act-On will take appropriate technical and organizational measures against unauthorized or unlawful processing of such personal data and accidental loss or destruction of, or damage to, such personal data.
Customer warrants that it shall (a) comply with this Agreement, Act-On’s Acceptable Use Policy (found at: https://act-on.com/acceptable-use-policy/, and incorporated herein by this reference) (the “AUP”), and all applicable laws relating to its use of the Services, including, without limitation, any privacy laws applicable to the collection, use and sharing of Recipient Data by Customer, or by Act-On on behalf of Customer, via the Services; (b) ensure that Customer and Act-On have the right to collect, use and share Recipient Data via the Services; and (c) provide adequate notice to, obtain any necessary consents from, and establish any applicable terms and conditions with Recipients and any other third parties, as required under all applicable laws with respect to the Recipient Data collected, used, transmitted and shared by Customer or by Act-On via the Services. Customer shall indemnify, defend and hold Act-On and its partners harmless from and against any and all claims or liabilities of any kind arising out of a breach of the foregoing warranties.
All fees for licenses to the Services and/or for Professional Services (collectively, the “Fees”) will be set forth on the applicable Order Form. Act-On reserves the right to charge overage fees during the Subscription Term in the event Customer exceeds the scope of the license set forth in the Order Form. Unless otherwise agreed to in writing by the parties, Customer will pay to Act-On or its authorized reseller all Fees owed within thirty (30) days after Act-On’s issuance of an invoice. Customer is responsible for any and all applicable sales, use and other taxes (other than taxes based on Act-On’s income). Each party is responsible for its own expenses under this Agreement. Customer agrees that its purchases are not contingent on (a) any specific level of deliverability of Customer Content or (b) the delivery of any future functionality or features or promises related thereto.
5.1 Term. This Agreement shall continue in effect until terminated as set forth herein. The term of each license to the Services purchased by Customer will commence on the date set forth on the applicable Order Form and will continue for the period set forth on such Order Form, including any renewal term, as set forth below (collectively, the “Subscription Term”). Unless otherwise set forth on the applicable Order Form, Customer’s license to the Services will automatically renew for the renewal periods set forth in the Order Form at the Fees designated by Act-On prior to such renewal date, unless Customer gives Act-On written notice of its intent not to renew on the same terms at least thirty (30) days prior to the end of the applicable Subscription Term or renewal term.
5. 2 Termination and Suspension. This Agreement and/or any Order Form, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party, (b) as set forth in Section 8.2 or (c) by either party if the other party provides proof that it made a general assignment for the benefit of creditors, suffered or permitted the appointment of a receiver for its business or assets, or availed itself of or became subject to any proceeding under the US Federal Bankruptcy Act or any other foreign or domestic statute, law, rule or regulation relating to insolvency or the protection of rights of creditors. Act-On shall have the right to limit, suspend, require modifications to the administration of Customer’s account, or terminate Customer’s access to or use of the Services if Customer (a) violates any of the terms of this Agreement (including, but not limited to, over use of authorized API calls designated in Customer’s Order Form), the AUP, or any applicable law, (b) uses the Services in a manner that harms or threatens to harm Act-On or its customers, or (c) is the subject of abuse complaints from Recipients or third parties.
5.3 Effect of Termination. Upon any termination of this Agreement or an Order Form (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 4, 5.3, 6, 7, 8.3, 8.4 and 9 shall survive termination, and (b) Customer shall pay to Act-On any Fees accrued or outstanding prior to the date of termination.
As between the parties, Act-On or its partners will retain all ownership rights in and to the Services, all updates and/or upgrades thereto, the Documentation, Deliverables, and other derivative works of the Services and/or Documentation that are provided by Act-On or its partners, including any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services, and all intellectual property rights incorporated into or related to the foregoing. As between the parties hereto, Customer will retain all ownership rights in and to all Customer Content.
“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonably should have known is considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that the receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before the effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
8.1 By Act-On. Act-On warrants that (a) the Services, as delivered and when used in accordance with the Documentation, will perform in all material respects as specified in the Documentation, (b) the Professional Services will be performed in a professional and workmanlike manner in accordance with the standards in Act-On’s industry, and (c) Act-On will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Services that are intentionally designed to permit unauthorized access to or use of either the Services or Customer’s computer systems (“Viruses”). In the event of any breach of the warranty in subsections (a) or (b) above, Act-On shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies that cause the Services or Professional Services, as applicable, to not conform to the foregoing warranty promptly after its receipt of written notice from Customer. Act-On will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination with the Services) not provided by Act-On; (ii) unauthorized use or use of the Services other than in accordance with the Documentation or (iii) Viruses introduced by Customer or its agents (collectively, “Exclusions”).
8.2 Indemnification. Act-On will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Services or Deliverables infringe or misappropriate any copyright or trade secret rights, and Act-On will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Act-On promptly in writing of such action, Customer giving Act-On sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at Act-On’s reasonable request and expense, assisting in such defense. If the Services (or any component thereof) or a Deliverable becomes, or in Act-On’s opinion is likely to become, the subject of an infringement claim, Act-On may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Services or Deliverable so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Act-On’s reasonable opinion, commercially reasonable, Act-On may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Act-On will have no obligation under this Section 8.2 or otherwise with respect to any infringement claim based upon (i) any Exclusions or (ii) Customer Content. This Section 8.2 states Act-On’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
8.3 Disclaimer. The express warranties in Section 8.1 are the exclusive warranties offered by ACT-ON and all other warranties, including, without limitation, any warranties of fitness for a particular purpose, non-infringement, accuracy, quiet enjoyment, title, merchantability and those that arise from any course of dealing or course of performance are hereby disclaimed.
8.4 Limitation of Liability. in no event shall EITHER PARTY be liable to THE OTHER PARTY or to any third party, whether under theory of contract, tort or otherwise, for any indirect, incidental, punitive, consequential, or special damages (including any damage to business reputation, lost profits or lost data), whether foreseeable or not and whether SUCH PARTY is advised of the possibility of such damages. IN ADDITION, BOTH PARTIES’ aggregate cumulative liability In connection with this Agreement, including the serviceS, PROFESSIONAL SERVICES and intellectual property provided hereunder, shall not exceed, in the aggregate and regardless of whether under theory of contract, tort or otherwise, the total of the Fees actually paid by Customer under this Agreement during the one (1) year period prior to the date that such liability first arises. However, there is no limitation on direct loss, claim or damages arising as a result of an infringement of either party’s intellectual property rights or in connectionwith a party’s indemnification obligations.
8.5 Insurance. Act-On, at its own expense, will maintain at a minimum the following insurance coverages: (a) Commercial General Liability Insurance with coverage in an amount equal to or greater than US$1,000,000 per occurrence combined single limit, (b) Commercial Automobile Liability Insurance with coverage in an amount equal to or greater than US$1,000,000 per occurrence/aggregate, (c) Worker’s Compensation Insurance with coverage complying with at least the statutory limits of coverage within the relevant state of employment, (d) Errors and Omissions Insurance with coverage in an amount equal to or greater than US$5,000,000 per occurrence/aggregate and (e) Umbrella/Excess Liability Insurance with coverage in an amount equal to or greater than US$10,000,000 per occurrence/aggregate.
Each party will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership or a joint venture between the parties. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Except as otherwise set forth herein, neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent, except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals or other documents submitted by the parties. The terms on any purchase order or similar document submitted by Customer to Act-On will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in this Agreement and/or the applicable Order Form and, if sent to Act-On, will be sent to its General Counsel.
The following terms and conditions supplement or modify the terms and conditions of the Agreement to the extent Customer has indicated on an applicable Order Form that Customer has its principal place of business in one of the jurisdictions set out below. In the event of any inconsistencies between this Addendum and the provisions of the Agreement, this Addendum shall prevail. Unless expressly amended in this Addendum, the provisions of the Agreement shall remain in full force and effect.