Last Updated: September 5, 2018
THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement”) IS BETWEEN ATTENTIVE MOBILE, INC., DOING BUSINESS AS ATTENTIVE (“Attentive”) AND THE ENTITY IDENTIFIED AS THE CUSTOMER (“Licensee”) IN THE ATTENTIVE ORDER FORM (“Order Form”). THIS AGREEMENT GOVERNS LICENSEE’S USE OF THE SERVICE (DEFINED BELOW) AND ANY RELATED PROFESSIONAL SERVICES SET FORTH IN ANY ORDER FORM (“Professional Services”).
1. Scope of Agreement; Certain Definitions. This Agreement governs Attentive’s provision of access to its Software-as-a-Service product known as Attentive™ (“Platform”) and related Professional Services to Licensee and its Authorized Users (defined below). The Platform may include certain templates or other materials provided by Attentive to help Licensee communicate effectively with Subscribers (defined below) (“Templates,” together with the Platform, the “Service”). As used herein, the term “Authorized User” means any employee or contractor (including any third party service provider) of Licensee for whom Licensee has created an account to access and use the Platform through the functionality available on Attentive’s website located at http://www.attentivemobile.com. The Service that Attentive is to provide to Licensee is described in one or more Order Forms. This Agreement hereby incorporates by reference any such Order Form. In the event of any conflict or inconsistency between the terms of any Order Form and this Agreement, the Order Form will control solely to the extent of the conflict or inconsistency.
2. Proprietary Rights.
a. License to Service. Subject to the terms and conditions of this Agreement, Attentive hereby grants to Licensee during the Term (defined below) a non-exclusive, non-transferable and non-sublicensable license to allow the Authorized Users to access and use the Platform (including any and Templates therein) solely to conduct message-based marketing for Licensee’s business.
b. Restrictions. Licensee and Authorized Users may not: (i) copy, modify, translate, or create derivative works of the Service; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Platform; (iii) lend, lease, offer for sale, sell or otherwise use the Service for the benefit of any third party or provide any third party except for Authorized Users with access to the Service; (iv) attempt to disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) use the Service in a manner that violates this Agreement, any third party rights or any applicable laws, or rules or regulations; or (vii) use the Service in a manner that is directly competitive with Attentive. Licensee acknowledges and agrees that it is responsible for the use or misuse of the Service by Authorized Users, and a breach by any Authorized User of any term of this Agreement will be deemed a breach by Licensee of this Agreement.
c. Attentive Ownership of Service. Except for the rights granted to Licensee in Section 2a above, as between the parties, Attentive retains all right, title and interest, including all intellectual property rights, in and to the Service, the Attentive Works (defined below) and all de-identified information that Attentive’s systems or applications automatically collect regarding use of the Service and the Platform’s performance (“Diagnostic Data”). All rights that Attentive does not expressly grant to Licensee in this Agreement are hereby reserved. Attentive does not grant any implied licenses under this Agreement.
d. Licensee Data. As between the Parties, Licensee owns all Data (defined below). Licensee hereby grants to Attentive a non-exclusive and non-transferable (except pursuant to Section 11c below) license to host, copy and transmit the data, information and other materials transmitted to or through the Platform by Licensee or Authorized Users (except for Diagnostic Data and Feedback (defined below)) (collectively, “Data”) solely to provide and improve the Service.
e. Feedback. From time-to-time, Licensee may make available to Attentive, directly or indirectly, feedback, analysis, suggestions and/or comments related to the Service (collectively, “Feedback”). Licensee hereby grants to Attentive a perpetual and irrevocable right to use such Feedback to provide and improve the Service without any compensation or credit to Licensee.
f. Training and Support. Attentive may provide commercially reasonable training and support in connection with the Service, in its sole discretion. Any such training or support would be available via email to email@example.com. Attentive will only respond to requests for training or support from the Authorized Users.
3. Professional Services. Subject to the terms and conditions of this Agreement, Attentive will provide any Professional Services identified in any Order Form. Attentive may develop software or other works of authorship, trade secrets, inventions or other intellectual property in performing the Professional Services (collectively, “Attentive Works”). Upon final payment of the applicable Fees (defined in Section 5 below), Attentive hereby grants to Licensee a non-exclusive, non-transferable (except under Section 11c below), non-sublicensable, royalty-free and worldwide right and license during the Term only to use any portion of the Attentive Works that is incorporated into the Service solely as necessary to use the Service in accordance with this Agreement. Licensee will reasonably cooperate with Attentive in the provision of Professional Services.
4. Free Trial.
a. In General. Attentive may make the Service available to Licensee for evaluation purposes free of charge (“Free Trial”) until the earlier of (i) the end of the free trial period as stated on the Order Form; (ii) the start of any purchased access to the Service through an Order Form; or (iii) termination by Attentive in Attentive’s sole discretion (the “Trial Period”).
b. No Warranty During Trial Period. Notwithstanding Section 8, during the Trial Period the SERVICE is offered “as is,” AND ATTENTIVE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, AND ATTENTIVE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING.
c. No Indemnification During Trial Period. Notwithstanding Section 10, during the Trial Period, Section 10b shall not apply.
a. Fees. Licensee will pay Attentive the fees set forth in the Order Form (“Fees”). All Fees will be due and payable within thirty (30) days from the date of the applicable invoice issued by Attentive. All Fees are non-cancellable and non-refundable. Late Fee payments will accrue interest at the rate of one and one half percent (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.
b. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any applicable taxing authorities (collectively, “Taxes”). Licensee is responsible for paying all Taxes associated with the rights and benefits it receives under this Agreement. If Attentive has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section 5b, then Attentive will invoice Licensee and Licensee will pay that amount unless Licensee provides Attentive with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Attentive is solely responsible for Taxes assessable against Attentive based on its income, property and employees.
6. Confidential Information.
a. 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”), that is marked in writing as “confidential” or by a similar designation or that otherwise should be considered confidential information based on the nature of the information and circumstances of disclosure. For clarity, Confidential Information also includes the non-public parts of the Service and any related non-public specifications, documentation or technical information that Attentive provides to Licensee and/or Authorized Users. Confidential Information will 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.
b. Protection of Confidential Information. The Receiving Party will 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). The Receiving Party may only use Confidential Information of the Disclosing Party to perform its obligations or exercise its rights under this Agreement. Except as expressly authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors or agents who need such access to perform obligations under this Agreement and who are bound to terms as least as restrictive as those in this Agreement. Neither party will disclose the terms of this Agreement to any third party (other than its affiliates and their legal counsel and accountants) without the other party’s prior written consent.
c. 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.
7. Term and Termination.
a. Term. This Agreement will continue during the period set forth on the Order Form (“Initial Term”). Thereafter, this Agreement will automatically renew for additional consecutive terms equal in length to the Initial Term (each, a “Renewal Term,” together with the Initial Term, the “Term”), unless either party provides to the other a written notice, at least thirty (30) days prior to the expiration of the then-current Renewal Term, of its intention not to renew this Agreement.
b. Termination. Either party may terminate this Agreement upon thirty (30) days prior written notice if the other party is in material breach of this Agreement and the breaching party fails to remedy the breach within the thirty (30)-day notice period.
c. Effect of Termination. Upon expiration or termination of this Agreement for any reason, the licenses granted to Licensee in Section 2a and Section 3 will automatically terminate and all Fees owed pursuant to Section 5 will become immediately due and payable.
d. Survival. The provisions of Sections 2b, 2c, 2d, 2e, 4b, 4c, 5, 6, 7c, 7d, 8, 9, 10, 11 and all defined terms used in those Sections will survive any expiration or termination of this Agreement.
8. Representations and Warranties.
a. Mutual. Each party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the right, power and authority to enter into this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate or organizational action of the party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
b. Attentive. Attentive represents and warrants that it will (i) use commercially reasonable efforts to make the Service available at all times during the Term, except for planned downtime and any unavailability caused by force majeure circumstances (e.g., fires, floods, acts of God, acts of government, civil unrest, service provider failures or delays, denial of service attacks or similar events); and (ii) maintain commercially reasonable administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Data.
c. Licensee. Licensee represents, warrants, and covenants that: (i) it owns or otherwise has sufficient rights to the Data to grant the license set forth in Section 2d; (ii) the posting and use of Data on or through the Platform does not and will not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or other rights of any person or entity; and (iii) the upload, posting or other submission of Data to the Platform does not and will not result in a breach of contract between Licensee and any third party; and (iv) when using the Service to send text messages or email messages (collectively, “Messages”), Licensee will, and will cause its Authorized Users to: (A) comply with all applicable federal, state, and local laws, regulations, and rules governing Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, and state and local equivalents; (B) comply with all applicable industry best practices; (C) send Messages only to individuals from whom Licensee has obtained the legally required consent to do so (“Subscribers”); and (D) promptly notify Attentive of all requests made by Subscribers to stop receiving Messages from Attentive or Licensee. Licensee’s responsibilities as set forth in this Section and this Agreement will remain the sole responsibility and liability of Licensee notwithstanding that Attentive may offer advice, guidance or suggestions relating to any of the matters that are Licensee’s responsibility and notwithstanding that Attentive may be engaged to provide services related to such responsibilities of Licensee.
d. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH UNDER THIS SECTION 8, ATTENTIVE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OR PROFESSIONAL SERVICES, AND ATTENTIVE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING. WITHOUT LIMITING THE FOREGOING IN THIS SECTION 8d, (I) TEMPLATES ARE PROVIDED BY ATTENTIVE FOR CONVENIENCE ONLY AND LICENSEE SHOULD CONFER WITH ITS OWN COUNSEL AS TO WHETHER ANY LANGUAGE IN THE TEMPLATES IS SUFFICIENT FOR LEGAL PURPOSES; (II) LICENSEE MAY NOT RELY UPON THE PROVISION OF SAMPLE LANGUAGE OR OTHER CONTENT IN ANY TEMPLATE AS A REPRESENTATION THAT SUCH LANGUAGE OR CONTENT SATISFIES ANY APPLICABLE LEGAL REQUIREMENTS; AND (III) ATTENTIVE IS A CONDUIT FOR MESSAGES AND MESSAGES CONTENT SENT OVER THE PLATFORM BY OR ON BEHALF OF LICENSEE AND HAS NO RESPONSIBILITY FOR SUCH MESSAGES OR MESSAGE CONTENT.
9. Limitations on Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR INDEMNITY OBLIGATIONS ARISING UNDER SECTION 10 AND LICENSEE’S PAYMENT OBLIGATIONS UNDER SECTION 5, (I) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES THAT LICENSEE HAS PAID TO ATTENTIVE DURING THE TERM; AND (II) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, DATA OR OTHER BUSINESS OPPORTUNITIES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT. For clarity, this Section 9 will not apply to any actual or alleged infringement by Licensee or any Authorized User of Attentive’s intellectual property or other proprietary rights.
a. Licensee. If a third party asserts a claim or any proceeding is initiated by government regulators (each, a “Third Party Claim”) against Attentive or any of its affiliates, officers, employees or contractors (each, a “Attentive Released Party”) arising out any (i) use of the Service by Licensee or any Authorized User in violation of this Agreement or the terms set forth at http://www.attentivemobile.com/terms. ; (ii) Data uploaded or transmitted to the Service by Licensee or an Authorized User; or (iii) allegation that Licensee or an Authorized User used the Service, or otherwise caused Attentive, to send Messages in violation of any applicable law, rule, regulation or industry best practice; then, in each case, Licensee will indemnify and defend each Attentive Released Party from the Third Party Claim and hold such parties harmless from all damages finally awarded or costs of settlements entered into with respect to the Third Party Claim. This Section 10a states Licensee’s entire and sole liability for Third Party Claims.
b. Attentive. If a Third Party Claim is asserted against Licensee or any of its affiliates, officers, employees or contractors (each, a “Licensee Released Party”) alleging that the Platform infringes such third party’s intellectual property rights (“Infringement Claim”), then Attentive will indemnify and defend the Licensee Released Party from the Infringement Claim and hold such party harmless from any damages finally awarded or costs of settlements entered into with respect to the Infringement Claim. In the event of an Infringement Claim, Attentive, at its sole option and expense, may: (i) procure for Licensee the right to continue using the Platform or infringing part thereof; (ii) modify or amend the Platform or infringing part thereof; (iii) replace the Platform or infringing part thereof with other software having substantially the same or better capabilities; or, (iv) if the foregoing are not commercially practicable, terminate this Agreement and repay to Licensee a pro-rata portion of the Fees. Notwithstanding the forgoing sentences of this Section 10b, Attentive will have no liability for an Infringement Claim if the actual or alleged infringement results from (A) any breach of this Agreement by Licensee or any Authorized User; (B) any modification, alteration or addition made to the Platform by Licensee or any Authorized User, including any combination of the Platform with software not provided by Attentive; (C) any failure by Licensee or any Authorized User to use any subsequent versions, updates or upgrades made available by Attentive; or (D) any settlements entered into by Licensee or costs incurred by Licensee for the Infringement Claim that are not pre-approved by Attentive in writing. This Section 10b states Attentive’s entire and sole liability with respect to Infringement Claims.
c. Procedures. The party seeking indemnity under this Section 10 (“Indemnified Party”) will use commercially reasonable efforts to provide the other party (“Indemnifying Party”) with prompt written notice of any claim for which the Indemnified Party seeks an indemnity. The Indemnified Party reasonably will cooperate in the defense of any such claim, at the Indemnifying Party’s sole expense. The Indemnifying Party may not settle any claim against the Indemnified Party without the Indemnified Party’s prior express written consent, which consent will not be unreasonably withheld, conditioned or delayed. The Indemnified Party may participate in the defense of a claim through counsel of its own choice at its own expense; provided, however, that if the Indemnified Party reasonably determines that the Indemnifying Party is unwilling or unable to defend the Indemnified Party’s interests, then the Indemnified Party may assume the defense against any claims at the Indemnifying Party’s sole expense.
a. Federal Government End Use Provisions. Attentive provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Attentive to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
b. Injunctive Relief. Licensee agrees that any violation or threatened violation of this Agreement may cause irreparable injury to Attentive, entitling Attentive to seek injunctive relief in addition to all legal remedies.
c. Assignment. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Neither party may assign this Agreement or any rights under it, in whole or in part, without the other party’s prior written consent; provided that either party may assign this Agreement or any rights under it without prior written consent to a successor in connection with a merger, acquisition, reorganization, consolidation, or sale of all or substantially all of its assets or the business to which this Agreement relates. Any attempt to assign this Agreement other than as permitted above will be void.
e. Export Regulations. Without limiting Section 2b(vi), Licensee agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State. Specifically, Licensee covenants that it will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from Attentive under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
f. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this Agreement will remain in full force and effect.
g. Governing Law and Jurisdiction. This Agreement will be governed by and construed under the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York, and the Parties agree to waive all rights to challenge the foregoing.
h. Entire Agreement; Amendments; Waivers. This Agreement, including any related Order Form(s), embodies the entire agreement between the Parties with respect to the subject matter set forth herein and supersedes any previous, or contemporaneous communications, whether oral or written, express or implied. This Agreement may be modified or amended only by a writing signed by both Parties. All waivers made under this Agreement must be made in writing by the party making the waiver.
i. Notices. Any notice required or permitted to be given under this Agreement will be effective if it is (i) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed; or (ii) sent via facsimile or electronic mail to: Attentive Mobile Inc. 156 5th Ave, Suite 303, New York, NY 10010 in the case of Attentive and to the address provided in the Order Form, in the case of Licensee. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day a facsimile or electronic mail is sent to the recipient.
j. Licensee Marks. Attentive may use Licensee’s name and logo (collectively, the “Licensee Marks”) in both print and electronic media to identify Licensee as an Attentive customer. If Licensee in its reasonable discretion determines that Attentive’s use of the Licensee Marks is derogatory, defamatory or detrimental to Licensee’s business or reputation, then Licensee may revoke the right granted to Attentive in this Section upon providing written notice to Attentive.