This Services Agreement (hereinafter the “Agreement”) is made and effective this [DATE] (the “Effective Date”) by and between Real Magnet, LLC (hereinafter the “Company”) and [CUSTOMER] (hereinafter “Customer”).
1. Services. Company shall provide to Customer services related to the Real Magnet application (hereinafter the “Application”), under conditions and term set forth in this Agreement. The Company acknowledges and agrees that all rights and obligation granted under this Agreement to Customer will extend to Customer’s affiliates, which currently exist or are later acquired.
2. Fees and Payment. Customer agrees to pay for fees associated with the services it receives under this Agreement. Customer’s selections and associated pricing and terms are contained in the Service Order, which is incorporated by reference. Customer shall be invoiced on a monthly basis and agrees to pay amounts therein due within thirty (30) days of receipt of invoice. A 1.5% per month charge (or the maximum rate permitted under law, whichever is less) will be added to overdue amounts.
3. Term and Termination. This Agreement shall be for a term of one year commencing on the Effective Date, and afterwards will renew automatically each month thereafter. The Agreement may be terminated by either party if the other party breaches this Agreement, and fails to cure such breach within fifteen (15) days after notice thereof, except that there shall be no cure for a breach of Section 5 which shall give Company the right to terminate immediately. The provisions of Sections 5, 6, 9 and 10 shall survive termination of this Agreement.
4. Customer’s Ownership of Content and Data. All Customer content, data, lists and records related to its account shall be the sole property of Customer (“Customer Information”). Company shall not disclose, distribute, or copy such information or data to any third party, or otherwise use such information or data, for any purpose, except as contemplated by this Agreement. Company shall take all reasonable steps to maintain the confidentiality and security of all Customer information and data. Customer is solely responsible for the Customer Information and agrees to use the Application in compliance with all federal and state laws and regulations and the Company’s Acceptable Use Policy (see Exhibit A).
5. Licensing and Company’s Exclusive Ownership of Application. Company grants to Customer a non-exclusive, perpetual license to use the Application for the fees state in the Service Order. Customer agrees that Company owns all rights, title and interest (including without limitation all copyright, patent, trade secret and other intellectual property rights) to the Application. Customer shall not (i) assign, transfer, sublicense, lease, rent or distribute the Application, (ii) modify or create any derivative work of the Application, or (iii) reverse assemble, decompile, reverse engineer or attempt to derive source code, the underlying ideas, algorithms, structure or organization of the Application. Customer agrees to take all reasonable steps to maintain the confidentiality of all Company information that is made available to or otherwise learned by Customer and that is not otherwise publically known. Customer is prohibited from disclosing, distributing, or copying such Company information and data to any third party, or otherwise using such information and data, for any purpose, except as necessary to utilize the Application as contemplated in this Agreement.
6. Acceptable Use Policy/Prohibited Conduct. Customer agrees that it shall use the Application only in accordance with the Acceptable Use Policy attached hereto as Exhibit A (which also can be viewed at www.realmagnet.com/terms). Customer agrees that its obligations hereunder also extend to materials and content it transmits on behalf of Third Parties. Company may modify the Acceptable Use Policy at any time and Customer agrees to be bound by all such modifications immediately upon Company’s posting of such changes on its web site. Customers may review these changes and if the parties cannot agree to the changes, Customer will have the right to terminate this Agreement upon notifying the Company. The Company may monitor communications being delivery through the Application and may, without notice, suspend a Customer’s sending privileges for any actions that violate the Company’s Acceptable Use Policy.
7. Intellectual Property. Customer agrees that the Application and its services, and Company’s name, logo, branding, and all related product and service names, design, marks and slogans (collectively, the “Company Marks”) are the property of Company. Customer may not use any of the Company Marks in any advertising, publicity, or any other commercial manner without the prior written consent of Company.
8. Security. The Company agrees to establish and maintain administrative, technical and physical safeguards against the destruction, loss or alteration of Customer Information, which measures are consistent with the laws and regulations of the state of Maryland relating to personal information security and with all other federal regulations relating to personal information security. Company has implemented such industry standard systems and procedures to ensure the security and confidentiality of the Application and Customer Information. Company will notify Customer if it becomes aware of any circumstances that may result in a breach of privacy or security and will take all reasonable steps to remedy such breach.
9. Availability of Service; Warranties; Limitation of Liability.
The Company will make its best effort to provide Customer with full-time service availability and access. However, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESUTLS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS”. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT, WITH REGARD TO THE APPLICATION, ANY ANCILLARY WORK RELATED TO THE USE OF THE APPLICATION, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY INDIRECT DAMAGES, WHETHER ARISING IN TORT, CONTRACT OR NEGLIGENCE, SUCH AS, BUT NOT LIMITED TO, DAMAGES RESULTING FROM EQUIPMENT DOWNTIME OR LOSS OF DATA, LOST PROFITS, OR REVENUE OR EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF ANY CLAIM, WHETHER OR NOT FORESEEABLE AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED DAMAGES EQUALING THE MONTHLY FEE PAID OR OWED BY CUSTOMER DURING THE MONTH IMMEDIATELY PRECEDING THE DATE WHEN THE CLAIM AROSE. The parties have agreed that the limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Customer is responsible for ensuring that its passwords are not shared with unauthorized parties and under no circumstance is Company liable for any security breach resulting from the misuse of passwords by Customer, its employees, ex-employees, agents, and directors.
10. Indemnification. Customer agrees to defend, indemnify and hold harmless Company, and its officers, members, employees, agents, and customers, and their successors and assigns, harmless from all claims, suits, damages, losses or expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from or related to (a) Customer’s material breach of this Agreement, or (b) the acts or omissions of Customer, its employees, agents, customers, and any other party accessing the Application on behalf of Customer. Company agrees to indemnify, defend and hold harmless Customer and its officers, directors, employees, and agents, and their successors and assigns, from any and all Losses arising from or related to (i) Company’s material breach of this Agreement, (ii) the acts or omissions of Company, or (iii) a claim that the Application when used as authorized infringes any valid U.S. patent, copyright, trademark, or trade secret. Company shall have no obligation to Customer with respect to any infringement action based on (1) modifications to the Application made by anyone other than the Company, its employees or agents, or (2) Customer’s improper use of the Application.
11. Entire Agreement. This Agreement, including any Service Order and Exhibits hereto, represents the entire agreement between Company and Customer and shall supersede all prior agreements and communications of the parties, oral or written with respect to the subject matter hereof.
Amendment and Waiver.No amendment to, or waiver of, any provision of this Agreement shall be effective unless in writing and signed by both parties. The waiver by any party of any breach or default shall not constitute a waiver of any different or subsequent breach or default.
12. Force Majeure. Nonperformance by Company shall be excused to the extent that performance is rendered impossible by strike, acts of God, governmental acts or restrictions, failure of suppliers or any other reason where failure to perform is beyond the control of Company.
13. Severability. Each provision of this Agreement shall be considered severable and if, any provision hereof is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by any court or agency having valid jurisdiction, such provision shall be given the maximum permissible effect, and such invalidity or illegality shall not impair the operation or affect the remaining provisions, and the latter shall continue to be given full force and effect and bind the parties and such invalid provisions shall be deemed not to be a part of this Agreement.
14. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Maryland. Each party hereby consents to the exclusive jurisdiction of the federal and state courts located in the State of Maryland.
IN WITNESS WHEREOF, the parties agree hereto have caused this Agreement to be executed by their duly authorized agents as of the day and year first above written.
Authorized Agent of Customer:
Exhibit A: Acceptable Use Policy
All Customers are required to comply with Real Magnet’s Acceptable Use Policy contained herein. Real Magnet reserves the rights to monitor and review all content and data that is input into the Application, and to deny any customer access to the application or terminate any customer it reasonably believes has violated any term of this Acceptable Use Policy.
Customer agrees that it will NOT:
Post, transmit, or promote any content or message that is illegal, threatening, abusive, harassing, tortuous, defamatory, obscene, libelous, invasive of another’s privacy, hateful, sexually oriented, or racially or ethnically objectionable;
Use the Application to distribute SPAM or unsolicited commercial email messages. Furthermore, Customer agrees that its messages shall contain a functioning, conspicuous unsubscribe mechanism and the physical address of the entity sending the message. With regards to management of recipients who unsubscribe, customer shall remove these recipients from the lists they unsubscribe from with 10 days of unsubscribing (this is done automatically for Customers using Company’s unsubscribe functionality).
Upload or send to purchased lists, rented lists, or third-party lists of any kind.
Transmit any message to any recipient who has not affirmatively and freely consented to receiving such message prior to delivery, unless there is a preexisting relationship with the recipient;
Post, transmit, or promote any content that is or may be construed as false or misleading to others;
Use the Application in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Application;
Post or transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; or
Violate any applicable local, state, national or international law, including, but not limited to anti-Spam, unsolicited facsimiles, and consumer privacy laws.