THESE TERMS OF SERVICE (“AGREEMENT”, INCLUDING ANY SERVICE ORDERS AND THE TERMS AND CONDITIONS OR TPOS (DEFINED BELOW) YOU PURCHASE THROUGH INSTART) IS A LEGAL AGREEMENT BETWEEN INSTART LOGIC, INC. (“INSTART”) AND YOU OR THE LEGAL ENTITY (OR ENTITIES) THAT YOU REPRESENT (“YOU” OR “YOUR”). YOU HEREBY REPRESENT THAT YOU HAVE AUTHORITY TO BIND THE ENTITY (OR ENTITIES) YOU REPRESENT.
YOUR ACCEPTANCE OF AN INSTART SERVICE ORDER (A “SERVICE ORDER”) CONSTITUTES YOUR ACCEPTANCE (ON YOUR BEHALF AND ON BEHALF OF THE ENTITIES THAT YOU REPRESENT) OF THIS AGREEMENT AND ANY APPLICABLE TPO TERMS AND CONDITIONS REFERENCED IN SUCH SERVICE ORDER.
THIS AGREEMENT IS SOMETIMES REFERRED TO AS A MASTER SERVICES AGREEMENT OR “MSA”.
1.SERVICE AND RESTRICTIONS
1.1 Scope of Supply.
(a) Instart Core Service. During the term of this Agreement and subject to the terms and conditions herein, Customer may place orders for the Instart services in a form specified by Instart from time-to-time, provided both parties accept such order in writing (each accepted order a “Service Order”). The Instart services subject to this Agreement and the applicable Service Order are those Instart-supplied services specified in a Service Order (such services, the “Service”). Any reference in a Service Order to a “Domain” means a Customer web domain with substantially identical configurations, security settings and/or properties as an already deployed Customer Property. A “Property” means a web domain with substantially dissimilar configurations, security settings and/or properties to an already deployed Customer web domain. Subject to Instart’s receipt of the applicable fees with respect to the Service, Instart will use commercially reasonable efforts to make the Service available to Customer on a seven day per week, twenty-four hour per day basis, pursuant to any applicable service level agreements attached and incorporated into such Service Order.
(b) Third party services or products purchased through Instart (each a “Third Party Offering” or “TPO”). Customer may order certain TPOs made available by Instart from time to time by executing a Service Order specifying the TPO(s). Customer acknowledges and agrees that the Service does not include any TPOs, and that any TPOs are subject to the terms and conditions applicable to such TPO, either by way of appendix attached and incorporated into a Service Order or specifically incorporated by reference to terms and conditions posted on www.instartlogic.com/company/legal (any such terms and conditions, an “Appendix”). Instart and its supplier will use commercially reasonable efforts to provide the TPO to Customer according to the terms and conditions set forth in the corresponding Appendix. Customer acknowledges and agrees that the terms and conditions with respect to the Services as set forth herein do not apply to TPOs, and any such TPOs are subject to and governed by the corresponding Appendix.
1.2 Access. Subject to Customer’s compliance with the terms and conditions of the Agreement and the Service Order, Customer may access and use the Service during the term specified in the Service Order for Customer’s business purposes in accordance with this Agreement. Customer acknowledges that the Service is made available by Instart, and no software code for the Service will be provided to Customer hereunder.
1.3 Restrictions. Customer will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Service or any software used to provide or make the Service available except where such prohibition violates applicable law; (ii) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; or (iii) access or use the Services to develop, promote, distribute, sell or support any product or service that is competitive with the Services or disclose any details about benchmarking results or technical specifications of any Services. Customer will use the Service only in accordance with all applicable laws, including, but not limited to, laws related to privacy (whether applicable within the United States, the European Union, or otherwise), intellectual property, consumer and child protection, obscenity, and defamation. Customer shall not make any representations, warranties, or guarantees with respect to the Service that purport to be by or on behalf of Instart or its suppliers, to any person or entity.
1.4 Ownership. Instart retains all rights, title, and interest in and to the Service, and any and all software, products, works or other intellectual property created, used, provided or made available by Instart under this Agreement.
1.5 Customer Content. Customer retains all right, title and interest in and to its website content (“Customer Content”) but excluding routing information, request headers, IP addresses and other general internet transit information. Customer Content shall not be deemed part of any Instart Service by virtue of being located on or served from Instart servers. Customer is solely responsible for the operation, maintenance, development, and use of Customer Content, including, but not limited to:
(a) any claims that Customer’s Content infringes, misappropriates, or otherwise violates the rights of any other person or entity, including the handling of notices by any person claiming that Customer Content violates such person’s rights, including, but not limited to, notices pursuant to the Digital Millennium Copyright Act;
(b) backing up Customer’s Content;
(c) the technical operation of Customer’s Content; and
(d) properly configuring and using the Service and taking steps to establish and maintain appropriate security and protection of Customer’s Content, which may include the use of encryption technology to protect Customer’s Content from unauthorized access.
1.6 Customer’s Users. Customer is responsible for the use of Customer Content by users of Customer’s website (“Users”). Customer will ensure that the terms of Customer’s agreement with Users are consistent with this Agreement and such terms shall be diligently enforced.
1.7 Suspension of Service. Instart may suspend Customer’s access to or use of the Service as follows:
(a) immediately if Instart reasonably believes:
(i) Customer has become insolvent, ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any proceeding in any jurisdiction related thereto; or
(ii) Customer’s use of the Service (x) poses a security risk to the Service or any third party, or (y) may adversely impact the Service or the systems or content of any other Instart customer.
(b) following thirty (30) days written notice if Customer is in breach of this Agreement (including for nonpayment of Instart fees, other than Disputed Fees) or a Service Order (and has not cured such breach, if curable, within the thirty (30) days of such notice).
1.8 Data Measurement. Data usage (and resulting billing) for applicable Instart Services shall be as follows:
(a) Service Measurement (for most Instart Services, including Application Delivery): Data utilized is determined by the amount of data requested by end users (“Original Data”), not the data presented to the end user in response to such a request (“Actual Data”). In many cases Original Data and Actual Data may differ; for example, they may differ when an end user makes a request for a web page, and leaves the web page before all the data associated with such web page is loaded. Data is also calculated based on use of Instart’s Global Network Accelerator (“GNA” or sometimes also referred to as “Middle Mile Acceleration”). Requests associated with static objects are typically fulfilled from edge proxy servers (such request a “Last Mile Delivery” or “LMD”). Requests associated with dynamic content are typically accelerated by use of the GNA and then fulfilled by LMD. In such a scenario, data is measured once for use of the GNA and again for use of the LMD. Instart Logic’s Customer Portal contains real time reports indicating Original and Actual Data, LMD requests, and use of the GNA.
(b) MAA Service Data Measurement: The amount of data requested by end users from their mobile device, flowing through the (MAA) service is measured and reported. The data transfer and overages are calculated as the sum total of all traffic for all mobile apps that have the Instart Logic SDK integrated.
(c) Third Party Offering data measurement (if applicable): Any TPO requiring usage measurement shall take place in accordance with the Third Party’s practices.
2.FEES AND TAXES
Customer agrees to pay the fees for the Service and any ordered TPOs as set forth in this Agreement and applicable Service Order(s). All fees due are non-cancelable and nonrefundable. All amounts invoiced are payable in U.S. dollars and are due and payable as stated in a Service Order. If not so stated, such amounts are due within thirty (30) days of invoice date, provided however that if Customer acting in good faith notifies Instart of a bona fide error on the face of an invoice, the obligation to pay the portion of fees to which the error relates (the “Disputed Fees”) shall be temporarily suspended. Instart shall within a reasonable time provide to the Customer either a) an explanation of the invoice or b) a revised invoice. Upon Customer’s receipt of either a) or b) the amounts so invoiced are no longer Disputed Fees and shall be due and payable within thirty (30) days. If payment of fees (other than Disputed Fees) is not received in full by the due date on Customer’s invoice, late fees may be assessed, in amounts up to one percent (1%) per month or the maximum amount permitted by law, whichever is less. If Instart is required to initiate legal action due to nonpayment of fees, Customer shall indemnify and hold Instart harmless for all costs resulting from the collection of such fees. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law on the services that Customer ordered and which Instart is required by law to withhold and remit to the relevant taxing authorities, other than corporate income taxes based on Instart’s net income.
3.TERM AND TERMINATION
3.1 Term. The term of this Agreement shall commence on the Effective Date and unless terminated earlier according to this Section 3, will end on the last day of the term specified in the last to expire Service Order (the “Term”). The Service will begin according to the billing effective date specified in the applicable Service Order (such date, the “Billing Effective Date”). Either party may, upon notice, terminate this Agreement due to a material breach that continues unremedied for thirty (30) days following notice. TPOs are further subject to the term and termination rights specified in the applicable Service Order(s) and /or Appendix.
3.2 Effects of Termination. Upon termination of this Agreement, all rights granted under the Agreement and any Service Order(s) terminate immediately and Customer will make no further use of the Service. Customer remains responsible for all fees and charges incurred prior to the effective date of termination. The following provisions will survive termination of this Agreement: Sections 1.4 (Ownership), 3.2 (Effects of Termination), Section 4 (Confidentiality), Section 5 (Indemnification), Section 7 (Limitation of Liability), Section 8 (Miscellaneous). If a Service Order contains a minimum financial commitment and/or a recurring fee over a minimum term commitment (each a “Commitment”), Customer may not, except in the case of Instart’s uncured material breach, terminate such Service Order without first paying such fees as are required to satisfy (as liquidated damages and not as a penalty) the Commitment in full.
During the term of this Agreement, either party may provide the other party with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by the disclosing party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the receiving party reasonably should have known was the Confidential Information of the disclosing party, shall be considered Confidential Information, including, for the avoidance of doubt, Customer Content. This Agreement and all economic terms are Confidential Information. The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party. The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without restriction, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party. The receiving party may disclose Confidential Information as required by law or court order; provided that, the receiving party provides the disclosing with prompt written notice thereof and uses the receiving party’s best efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party shall return to the disclosing party all disclosing party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.
5.1 Indemnification by Customer. Customer will defend, indemnify, and hold Instart, our affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) breach of this Agreement or violation of applicable law by Customer or Users, including claims related to Customer’s Content or the combination of Customer’s Content with other applications, content or processes; or (b) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Customer’s Content or by the use, development, design, or production of Customer’s Content.
5.2 Indemnification by Instart. Instart will defend, indemnify, and hold Customer harmless from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from claims by a thirty party: (a) with respect to Instart’s breach of this Agreement or violation of applicable law; or (b) that Customer’s use of the Service infringes or misappropriates a third party’s intellectual property rights (an “Infringement Claim”). Should any portion of the Service become, or in Instart’s opinion be likely to become, the subject of any Infringement Claim, then Customer will permit Instart, at Instart’s option and expense, to procure for such party the right to continue using the Service, to replace or modify the Service or portion thereof to be non-infringing, or to take any other action reasonably deemed advisable by Instart related to such alleged infringement. In the event none of these remedies is available and/or practical, Instart may, in its sole discretion, terminate the right to use the Service and return to Customer the fees paid with respect to the infringing Service, reduced on a prorated basis for each month the Service is used by Customer. Notwithstanding any other provision in this Agreement, Instart shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any Customer Content with the Service; or (b) the combination of any products or services, other than those provided by Instart to Customer under this Agreement, with the Service.
5.3 Notice of Claim and Indemnity Procedure. In the event of a claim for which a party seeks indemnity or reimbursement under this Section 5 (each an “Indemnified Party”) and as a condition of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim to the extent that the Indemnified Party is in possession or has knowledge of such information; provided that any delay in giving such notice shall not preclude the Indemnified Party from seeking indemnification or reimbursement thereunder if: (i) such delay has not materially prejudiced the indemnifying party’s ability to defend the claim; and (ii) such delay does not materially affect the amount of any damages awarded for or paid in settlement of such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim, including retaining counsel of its own choosing. Upon the assumption by the indemnifying party of the defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party in the defense of any such claim.
5.4 Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party’s prior written consent, to settle a claim. Subject to the maximum liability set forth in Section 7, the provisions of this Section 5 constitute the entire understanding of the parties regarding each party’s respective liability under this Section 5, including but not limited to Infringement Claims (including related claims for breach of warranty) and each party’s sole obligation to indemnify and reimburse any Indemnified Party.
THE SERVICES HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. INSTART HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SECURITY, ACCURACY, QUALITY, NON-INFRINGMENT, OR FITNESS FOR A PARTICULAR PURPOSE. INSTART DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED.
7.LIMITATIONS OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICES OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. EXCEPT FOR EACH PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4 AND INDEMNITY OBLIGATIONS UNDER SECTION 5, EACH PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EACH PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER SECTION 5 SHALL NOT EXCEED THE GREATER OF: THE AMOUNT EQUAL TO FIVE (5) TIMES FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER, OR ONE MILLION US DOLLARS ($1,000,000).
8.1 Export Control. Customer hereby certifies that Customer will comply with all current U.S. Export Control laws. Customer agrees to defend, indemnify and hold Instart harmless from any liability for Customer’s violation of U.S. Export Control laws.
8.2 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Instart may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition or sale of all or substantially all of its assets.
8.3 Force Majeure. Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, acts of God, internet outage, terrorism, war, fires, earthquakes and other disasters. Notwithstanding the foregoing, Customer shall be liable for payment obligations for Services rendered.
8.4 Notice. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), by electronic mail (if to Instart Logic, to email@example.com), or by recognized courier service to the address of the party indicated in this Agreement or in a notice delivered pursuant to this Agreement from time to time.
8.5 Independent Contractor. Instart is an independent contractor and both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Instart.
8.6 Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of law provisions. All controversies or claims arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of and venue in the state and Federal courts located in San Francisco, California. Notwithstanding the forgoing, if Customer is located outside of the United States, any controversy or claim arising out of or relating to this Agreement shall be (i) determined by arbitration by the International Centre for Dispute Resolution in accordance with its then current International Arbitration Rules, and (ii) finally resolved by arbitration conducted by one arbitrator in San Francisco, California. The arbitration will be conducted in English, the governing language of this Agreement. Notwithstanding the foregoing, each party will have the right to seek equitable relief from any court of competent jurisdiction.
8.7 Entire Agreement. This Agreement 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 this Agreement, and all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. Any term or provision of this Agreement held to be illegal or unenforceable shall be, to the fullest extent possible, interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected. In the event of a conflict between this Agreement and a Service Order, this Agreement shall control. Each Appendix shall control with respect to the applicable TPO.
Last updated: 22 June 2017