Master Services Agreement
as of Mar. 22 2017
This Master Services Agreement (the "Agreement") is a legal agreement between You (the "Subscriber") and Everysk Technologies Inc., a corporation incorporated under the laws of Delaware ("Everysk"), with its principal place of business at 29 Little West 12th Street, New York, NY 10014, United States of America.
By signing up for a trial, a subscription plan or an account, You agree to the terms of this Agreement, which governs access to and use of Everysk's Software or Services. 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 these terms and conditions. If You do not have such authority or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the Software or Services. This Agreement is effective between You and Everysk as of the date You accept it or access or use the Software or Services.
Everysk may amend this Agreement at any time. The amended Agreement and a description of the amendments will be posted on the web page and the amended Agreement will be effective immediately.
You may not access the Software or Services if You are Everysk's direct competitor, except with Everysk's prior written consent. In addition, You may not access the Software or Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
By accessing or using Everysk Software or Services, You are agreeing to these terms. We update the Agreement once in a while.
- "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control", for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
- "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure;
- "Subscriber," "You," or "Your" means the company or other legal entity for which You are accepting this Agreement;
- "Plans" or "Plan" refer to one or all of: "Core", "Core Plus", "API", "API Plus", "Combo Plus" subscription plans. The basic functionality for the plan You have subscribed to, can be found in the PLANS header button as well as the Billing tab in your profile;
- "Seat" means the ability for one User to access the Services;
- "Software or Services" means any of Everysk's products or services, including Everysk's Dashboards, PortEngine REST API and any proprietary scripts and related programs, whether under a trial or Plan, accessed or used by You, including Updates, and corresponding documentation, associated media, printed materials, and online or electronic documentation;
- "Support" means any assistance that Everysk offers and provides related to its Software or Services.
- "Updates" means a bug fix, patch, error correction and/or other enhancements to the Software or Services; and
- "User" means an employee, independent contractor, consultant or agent of the Subscriber identified and authorized by the Subscriber to use the Software or Services;
- Rights and Restrictions:
- Subject to the terms and conditions of this Agreement, You are hereby granted a non-exclusive, non-transferable license: (i) to access and use Everysk's Software or Services on any device; and, (ii) for the number of Seats set out in the applicable Plan to use the Software or Services solely for Your own business purposes. Only one User can access the Software or Services through a Seat at a time. One User accessing the Software or Services through a Seat can only have one login on any device open at a time for use of Dashboards or one unique API token for use of PortEngine. Your use of the Software or Services is subject to additional terms and conditions set out in the applicable Plan, including the duration of the term of license.
- You may not re-license, sub-license, sell, assign, or otherwise transfer the Software or Services. You agree that the Software or Services will only be used in accordance with the provisions of this Agreement.
- You will not modify, resell for profit, distribute, or create derivative works based upon the Software or Services or any part thereof.
- Everysk compiles and analyzes usage and performance of the Software or Services ("Compiled Data") and uses Compiled Data to build features and improve the functionality and feature set of the Services. Everysk shall have exclusive ownership of any Compiled Data and the exclusive right to use the same for any purpose, provided that Everysk shall not distribute any Compiled Data in a manner which identifies Your business or Your customers or any personal information of such customers. You agree that Everysk may collate, modify and create aggregate, non-personally identifiable information from the use of the Software or Services and that Everysk may reuse all general knowledge, know-how, work and technologies acquired during provision of Software and Services.
- Everysk shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Software or Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including any Users, relating to the Software or Services.
- All of the portfolio data You use within the Software or Services which is visible through the Software or Services to us ("Your Data") belongs to You. You hereby grant Everysk a non-exclusive, royalty-free, worldwide sub-licensable right and license to access and use Your Data in order to provide the Software or Services as contemplated by this Agreement, including to send You personalized suggestions. Everysk will use Your Data to not only provide the Software or Services as they exist today, but also to allow Everysk to provide You with innovative features and services it develops in the future that use the information it receives about You in new ways.
- Intellectual Property:
- Ownership in the Software or Services will at all times remain with Everysk. Everysk will retain all right, title, copyright, trade secrets, patents, trademarks, and other proprietary and intellectual property rights in the Software or Services. You do not acquire any rights, express or implied, in the Software or Services, other than those specified in the Agreement. You will not remove any copyright, patent, trademark, design right, trade secret or any other proprietary rights or legends from the Software or Services.
- Your Confidential Information shall include Your Data; Everysk's Confidential Information shall include the Software and Services, including Compiled Data and Aggregate Data; and Confidential Information of each party shall include the terms and conditions of this Agreement, including any Plan, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that: (i) is publicly known or readily ascertainable by the public, through no wrongful act of Receiving Party; (ii) is received from a third party without breaching an obligation owed to the Disclosing Party; (iii) is independently developed by or for the Receiving Party; or (iv) was in its possession prior to it being furnished to the Receiving Party by the Disclosing Party.
- The Receiving Party agrees that Confidential Information of the Disclosing Party: (i) will not be used for any purpose outside the scope of this Agreement; (ii) will be treated with the same degree of care as similar information of the Receiving Party is treated within the Receiving Party's organization (but in no event less than reasonable care); (iii) will not be used for the benefit of a third party; and (iv) will remain the property of the Disclosing Party. The Receiving Party will limit access to Confidential Information of the Disclosing Party except as otherwise authorized by the Disclosing Party in writing, to those of its and its Affiliates' employees, officers, directors, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Disclosure of Confidential Information by the Disclosing Party's employees, officers, directors, contractors, agents or Affiliates is deemed to be the disclosure by the Disclosing Party.
- The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
- The obligations of the Receiving Party set forth in this section will remain in effect for a period of five (5) years following the date of first disclosure. Confidential information identified as a trade secret will be held in confidence indefinitely.
- Disclaimer of Warranties and Preview Services:
- EVERYSK DOES NOT REPRESENT THAT THE SOFTWARE OR SERVICES WILL BE ERROR-FREE, AVAILABLE UNINTERRUPTED, OR THAT IT WILL PRODUCE A SPECIFIC RESULT FROM YOUR USE. THE SOFTWARE OR SERVICES AND ITS CONTENT ARE PROVIDED "AS IS" AND YOUR USE OF THE SOFTWARE OR SERVICES SHALL BE AT YOUR OWN RISK; AND EVERYSK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- You warrant that You have validly entered into this Agreement and have the legal power to do so.
- From time to time Everysk may invite You to try, at no charge, Software or Services that are not generally available to Everysk customers ("Preview Services"). You may accept or decline any such Preview Services in Your sole discretion. Preview Services will be clearly designated as alpha, beta, pilot, limited release, developer preview, or non-production, or by a description of similar import. Preview Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. We may discontinue Preview Services at any time in Everysk's sole discretion and may never make them generally available. PREVIEW SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY.
- Limitation of Damages:
- BY ACCESSING AND USING THE SOFTWARE OR SERVICES, INCLUDING THE USE OF ANY DATA OR INFORMATION SUPPLIED BY YOU IN CONNECTION WITH THE SOFTWARE OR SERVICES, YOU AGREE THAT EVERYSK ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND CONTRACTORS ("INDEMNIFIED PARTIES"), SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO YOUR USE OF THE SOFTWARE OR SERVICES. YOU FURTHER AGREE TO DEFEND, INDEMNIFY AND HOLD INDEMNIFIED PARTIES, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, DAMAGES, LIABILITIES, COSTS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SOFTWARE OR SERVICES.
- Monthly subscription fees are found on the PLANS header button of your account.
- When you request a demo with us, and provided you want to proceed with a trial, we will open an account for You and will help you select the most appropriate Plan for your needs. You can trial any plan for up to 7 days at no charge (Free Trial Period).
- If your trial lapses without You canceling it, You will be automatically invoiced for the next 3 months of use of the selected plan.
- Invoices are sent for the next 3 months of use of any Plan. You have 7 days to pay invoices, either by remitting us a check, by credit card or wire transfer.
- There will be no refunds or credits for partial periods of service or periods of inactivity.
- All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You are responsible for payment of all such taxes, levies, or duties.
- Should you cancel Your Dashboards Plan, your account will have limited functionality, only allowing you to view previously created dashboards. You will not be able to generate new dashboards.
- Should you cancel Your PortEngine Plan, your account will have no further access to the REST API.
- Your cancellation takes effect immediately. Once Your subscription is canceled, no further invoices will be generated for Your subscription. If Your subscription is canceled partway through the paid period, You will not be credited a refund for the unused period. If Your subscription is canceled during the seven day free trial, no charges take effect.
- Breakage Fee: Your subscription is annual and upon cancellation, You will still incur a breakage fee corresponding to 50% of the outstanding fees due from the end of the current quarter to the end of the annual term.
- The renewal of Your Plan will be automatic and will reflect any amendments made to Your Plan.
- Term and Termination:
- All Plans have an annual subscription from the date You first subscribe to the Plan. The term of the Plans shall automatically renew for additional annual periods, unless either party gives the other 60 day notice, in writing, of non-renewal prior the end of the relevant term.
- Upon termination of the Plan, You will cease using the Software and Services.
- This Agreement will terminate should You decide to electronically delete Your account associated with the Software and Services. Any fees that You have committed to paying must still be paid.
- Should You cancel Your account associated with the Software and Services, this Agreement will terminate at the end of the period for which You have committed to pay fees. Any fees that You have committed to paying must still be paid.
- Everysk, in its reasonable discretion, has the right to suspend or terminate this Agreement and use of the Software or Services by You. Everysk will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination. Should Everysk terminate this Agreement, it will send You notice and the effective date of termination will be the date the notice is sent by Everysk.
- You are solely responsible for properly cancelling the Services or deleting Your account. Everysk will not refund any fees paid.
- Your Data will be permanently deleted upon You deleting Your account. Everysk will permanently delete Your Data upon written confirmation that You wish to have Your Data deleted.
- Governing Law: This Agreement will be governed by, interpreted, and construed in accordance with the laws of New York and the laws of United States applicable therein. Each party irrevocably attorns to the jurisdiction of the courts New York. The parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods, and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.
- Relationship of Parties: The parties are not agents or legal representatives of each other. The parties to this Agreement are independent contractors. No relationship of principal to agent, master to servant, employer to employee, or franchisor to franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
- Survival: The provisions in Articles 3, 5, 6, and 9 and Sections 2.2, 2.3, 2.5, 2.6, 4.4 and will survive termination of this Agreement.
- Assignment: Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
- Waiver: The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except for actions for breach of Everysk's proprietary rights in the Software or Services, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has arisen.
- Entire Agreement: This Agreement together the terms of any Plan is the complete agreement between the parties regarding the subject matter hereof and will not be deemed to have been waived by any act or failure to act.
- Severability: If one or more provisions of this Agreement are held to be unenforceable under applicable laws, such provisions will be modified to the minimum extent necessary to comply with applicable law and the intent of the parties.
- Legal Notices; Contacting Everysk. All legal notices to Everysk shall be sent to firstname.lastname@example.org. Questions regarding the Software or the Services can be directed to email@example.com.