This Small Act Master Service Agreement (this “Agreement”) is entered into as of the date set forth on Order Form, (the “Effective Date”) by and between Small Act Network, LLC (“Small Act”) a Commonwealth of Virginia corporation and “Customer”.
1.1. “API” means the Application Programming Interface utilized by Customer to access the Service.
1.2. “Call” means a connection made to the API that results in a Response.
1.3. “Batch” means the method in which files are sent by Customer to Small Act for processing and in which the results of the data append are then sent back to Customer.
1.4. “Dataset” means the collation of data (including Matches) created by Customer’s use of the Service and downloaded to Customer’s systems immediately after creation.
1.5. “Service Documentation” means the document made available to Customer by Small Act, which sets out a description of the Service and the user instructions for the Service. Up to date Service Documentation may be found at http://smallact.com/ServiceDocumentation.
1.6. “Error” means a Response that has an HTTP status code that typically indicates a temporary or permanent failure, including but not limited to 404 Not Found, 202 Accepted, 403 Forbidden, 503 Service Unavailable.
1.7. “Completed” means a Response with an HTTP status code that indicates success completing the lookup (200 OK).
1.8. “Match” means a return of one or more Twitter, Facebook or LinkedIn profile URLs for a given email address. If using the API, this would be in the 200 OK Response.
1.9. “Order Form” means an order form executed between the parties from time to time, which identifies the products and services to be provide pursuant to this MSA, together with the applicable fees, payment terms and other terms and/or relevant information.
1.10. “Query” means a Call with a unique identifier, such as an email address, Twitter username or Facebook ID. Customer can make several Calls that are all the same Query;
1.11. “Response” means a result returned by the API as a result of a Call; and
1.12. “Service” means the services provided by Small Act to Customer under this MSA and in the Order Form.
2. LICENSE TO USE PURCHASED SERVICE. Subject to Customer purchasing access to and using the Service in accordance with the terms of this Agreement, Small Act hereby grants to Customer a non-exclusive, non-transferable right to use the Service and the Service Documentation during the term of the applicable Order Form. The Customer acknowledges that the Service, and all intellectual property rights contained therein, belongs and shall continue to belong to Small Act or its licensors, and that Customer shall have no rights in or to the Service other than the right to use the Service in accordance with the terms of this Agreement.
3. USE OF THE SERVICE
3.1. Small Act’s Responsibilities. Small Act shall: (a) provide Small Act’s basic support features via email and the support features built into the app during Small Act’s normal business hours (9-6pm EST), and/or upgraded support if purchased separately; and (b) use commercially reasonable endeavors to make the Service available 24 hours a day, seven days a week except for any maintenance carried out during Small Act’s normal maintenance window, or performed outside the normal maintenance window provided that Small Act has given Customer at least 8 hours’ notice in advance.
3.2. Customer’s Responsibilities. Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Service and/or the Service Documentation and, in the event of any such unauthorized access or use, promptly notify Small Act. Customer shall not: (i) access, store, distribute or transmit any viruses, or any material during the course of its use of the Service that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or causes damage or injury to any person or property and Small Act reserves the right, without liability to Customer, to disable Customer’s access to any material that breaches the provisions of this clause; (ii) except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service and/or Service Documentation (as applicable) in any form or media or by any means, (iii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service; (iv) subject to clause 3.3, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service, Dataset, and/or Service Documentation available to any third party; (v) use or attempt to use the Service or the API to directly compete with Small Act; or (vi) distribute any Match to any advertising networks.
3.3. Resale of Responses and Matches. Customer may not resell Responses or Matches to other entities or end users. Similarly Small Act may not resell Customer’s Responses or Matches to other entities or end users to the extent such Responses and Matches are marketed or otherwise identified as Customer’s Responses and Matches; for avoidance of doubt, this limitation shall not be construed to preclude Small Act from using its data and providing its services to other customers in the regular course of its business.
4.1. Fee Calculation. Unless otherwise specified in the applicable Order Form, Customer shall pay a fee in the amount specified on the applicable Order Form for each of the Responses or Matches it receives using the API or returned to them in their Batch results file, excluding any Responses or Matches resulting from the Trial Calls. Customer shall permit Small Act to audit its use of the API and the Service in order to establish the number of Responses or Matches received in any particular period, and Customer agrees that Small Act’s calculation of the Responses or Matches is final.
4.2. Payment Terms. The Customer shall pay the applicable fee to Small Act on the Payment Terms specified on the applicable Order Form. All prices and fees are stated in, and all payments shall be made in, U.S. dollars unless otherwise specified in the applicable Order Form. All sums payable under this Agreement are exclusive of duties, VAT and other sales taxes (if applicable), for which Customer shall be responsible.
4.3. Overdue Charges. If any charges are not received from Customer by the due date, then Small Act may charge Customer interest on the overdue amount at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Suspension of Service and Acceleration. If the undisputed amount owing by Customer under any Order Form is thirty (30) or more days overdue, Small Act may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations for the then-current term so that all such obligations become immediately due and payable, and suspend access to the Service until such amounts are paid in full.
5. DATASET AND CONTENT OWNERSHIP
5.1. Dataset Ownership and Deletion. Small Act does not own any data, information or material that Customer sends or uploads to Small Act in the course of using the Service. Specifically for the Customer’s use of the Service, any email addresses and additional append data that are sent or uploaded to Small Act for the Service are treated as Confidential Information and will not be redistributed, resold, or retransmitted to anyone other than the Customer (without limiting the foregoing, such email addresses and append data may be retained and used by Small Act solely for indexing purposes and solely for the Customer use of the Service). The Customer, not Small Act, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all of the Dataset. Small Act shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, or failure to store any Dataset. Small Act reserves the right to withhold, remove, discard and/or otherwise dispose of any Dataset without notice for any breach, including, without limitation, Customer’s non-payment of fees. Upon termination for cause, your right to access or use the Service immediately ceases, and Small Act shall have no obligation to maintain or forward any Dataset. Customer acknowledges and agrees if, as a result of Customer’s use of the Service, you receive or have access to any Matches, then Customer shall have the sole responsibility to ensure that it obtains and possesses all licenses, authorization and/or subscriptions required by the owner of any unique identifier, and Small Act shall have no responsibility for obtaining such licenses, authorizations and/or subscription or any liability for your failure to do so.
6.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential 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. Confidential Information of each party shall include, without limitation, 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 or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For avoidance of doubt, the information provided by Customer to create the Dataset is the Confidential Information of Customer.
6.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, 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. Neither party shall disclose the terms of this Agreement or any Order Form to any third party without the other party’s prior written consent other than to: (i) its Affiliates and their legal counsel and accountants; and (ii) to potential investors, lenders, purchasers of either party’s business, or underwriters in connection with their due diligence in future financings, acquisitions mergers or public offerings of either party.
6.3. Compelled Disclosure. 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.
7. WARRANTIES AND DISCLAIMERS
7.1. Small Act Warranties. Small Act warrants that the Service will be performed in compliance with all applicable laws, regulations and ordinances and will perform substantially in accordance with this Agreement and the Service Documentation provided in Appendix C, provided that (a) Small Act shall not be responsible to the extent such non-conformance is caused by use of the Service contrary to Small Act's instructions, or modification or alteration of the Service by any party other than Small Act or Small Act's duly authorized contractors or agents; and (b) Small Act shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Small Act by Customer in connection with the Service, or any actions taken by Small Act at Customer's direction. If the Service does not conform with the foregoing, Small Act will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy for any breach of the warranties contained in this section 8.1. Notwithstanding the foregoing, Small Act does not warrant that Customer's use of the Service will be uninterrupted or error-free; nor that the Service, Service Documentation and/or the information obtained by Customer through the Service will meet Customer's requirements. Customer understands and acknowledges that the data contained in the Datasets are publicly available information and as such may be inaccurate and that the Datasets may not be up to date.
7.2. Customer Warranties. Customer represents and warrants that it will: (a) comply with all applicable laws and regulations with respect to its activities under this Agreement; (b) obtain and maintain all necessary licenses, consents, and permissions necessary for Small Act, its contractors and agents, to perform the Service; (c) use commercially reasonable efforts to ensure that Customer’s users are informed regarding how to use the Service and the Service Documentation in accordance with the terms and conditions of this Agreement; and (c) assume sole responsibility for Matches obtained from the use of the Service, and for conclusions drawn from such use.
7.3. Disclaimer. The limited warranty set forth in SECTION 8.1 is made for Customer’s benefit only. Except as expressly provided in this section and to the maximum extent permitted by applicable law, the Service is provided “as is,” and Small Act makes no (and hereby disclaims all) warranties, representations, or conditions, whether written, oral, express, implied or statutory, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, with respect to the use or inability to use the Service (in whole or in part) or any other products or services provided to customer BY Small Act. Small Act doES not warrant that all errors can be corrected, or that operation of the Service shall be uninterrupted or error-free.
7.4. Internet Delays. The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications that are outside Small Act’s control. Small Act is not responsible for any delays, delivery failures or other damages resulting from such problems.
7.5. Non-GA Services. From time to time Small Act may invite Customer to try, at no charge, products or services that are not generally available to Small Act customers ("Non-GA Services"). Customer may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA 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. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. Small Act may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
8. INDEMNITY. The Customer shall defend, indemnify and hold harmless Small Act against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Customer's misuse of the Service and/or the Service Documentation, provided that: (a) Customer is given prompt notice of any such claim by Small Act; (b) Small Act provides reasonable co-operation to Customer in the defense and settlement of such claim, at Customer's expense; and (c) Customer is given sole authority to defend or settle the claim.
Small Act shall defend, indemnify and hold harmless Customer against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Customer's use of the Service, including without limitation claims of intellectual property infringement by a third party, claims arising from Small Act’s unauthorized or negligent disclosure of the Dataset(s) or other Confidential Information, and failure to comply with applicable laws, and/or the Service Documentation, provided that: (a) Small Act is given prompt notice of any such claim by Customer ; (b) Customer provides reasonable co-operation to Small Act in the defense and settlement of such claim, at Small Act's expense; and (c) Small Act is given sole authority to defend or settle the claim. Small Act warrants and represents that it has and shall maintain commercially reasonable amounts and types of insurance to adequately cover its indemnity obligations hereunder.
9. LIMITATION OF LIABILITY
9.1. Types of Damages. To the extent legally permitted under applicable law, in no event shall Small Act nor Customer, or their respective suppliers, employees or agents, be liable to the other party hereto for any special, indirect, incidental or consequential damages, including damages or costs due to loss of profits, data, use or goodwill, personal or property damage resulting from or in connection with either party’s performance hereunder or the use, misuse, or inability to use the Service or other products or services hereunder, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if such party has been notified of the likelihood of such damages. This limitation of liability shall not be effective where a court with competent jurisdiction issues a final judgment that the damages or injury hereunder arose from the responsible party’s gross negligence or wilful misconduct.
9.2. Amount of Damages. Small Act’s maximum liability to Customer arising out of or in any way connected to this agreement shall not exceed the fees paid by Customer to Small Act pursuant to the order form that is the subject of the claim during the Twelve (12) months immediately preceding the claim. The existence of one or more claims under these Terms will not increase Small Act’s liability. In no event shall Small Act’s suppliers have any liability arising out of or in any way connected to these Terms.
9.3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9.4. Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Customer.
10. TERM AND TERMINATION.
10.1. Term of the Agreement. This Agreement shall commence on the Effective Date and shall continue until the expiration or termination of the last to expire or terminate Order Form, unless otherwise terminated as provided in this Agreement.
10.2. Term of Order Form and Renewals. The initial term of each Order Form shall begin on the date specified on the applicable Order Form and continue for the period specified therein (“Initial Term”). Upon 60 days notice prior to the expiration of the Initial Term, Customer will notify Small Act if it intends to renew each applicable SOW. Both Parties acknowledge that each Renewal Term shall be for a period of 12 months, unless otherwise agreed between the Parties in writing (“Renewal Term). The Pricing details set in Appendix A shall apply to every SOW to this Agreement. Customer is under no obligation to order a minimum number or Services or projects during the either the Initial Term or any Renewal Term.
10.3. Termination. Either party may terminate this Agreement at any time on written notice to the other if the other: (a) is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or (b) is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction or (c) without cause upon 90 days written notice to the other party.
10.4. Effect of Termination. On termination for any reason: (a) all rights granted to Customer under this Agreement shall cease; (b) Customer shall cease all activities authorized by this Agreement; (c) Customer shall immediately pay to Small Act any Fees due to Small Act under this Agreement. In the event Small Act terminates this Agreement without cause Small Act shall immediately refund to Customer a pro rata percentage of Fees paid by Customer in advance. Sections 3.2, 3.3, 4, 6, 7, 8, 9, 10 11, and 12 shall survive any termination or expiration of this Agreement.
10.5. Deletion of Data. On termination for any reason, Small Act will delete all Customer data in its possession or residing on servers, including but not but limited to (a) SFTP servers and (b) any servers, virtual, cloud based, or physical used to host and/or provide the Service.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). All notices shall be sent to the addresses set forth on the applicable Order Form, which may be updated from time to time upon written notice to the other party.
11.2. Agreement to Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to conflict of laws rules. 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. The United Nations Convention on Contracts for International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.
12. GENERAL PROVISIONS
12.1. Export Compliance. The Service, other technology Small Act may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access to or use the Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
12.2. Force Majeure. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in clause shall excuse Customer from any payment obligations under this Agreement.
12.3. Waiver. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
12.4. Severability. If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
12.5. Amendments. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
12.6. 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, Small Act may assign this Agreement in its entirety (including all Order Forms), without consent of Customer to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Relationship of the Parties. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
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