Master Subscription Agreement
Certif-ID International GmbH Master Subscription Agreement
This Certif-ID International GmbH Master Subscription Agreement (“MSA”) is effective as of the effective date of an applicable signed order form (such form an “Order Form” and such date the “Effective Date”) and is by and between Certif-ID International GmbH, a german corporation with a place of business at “Am Grauen Stein 33, 51106 Cologne, Germany” (“Certif-ID International GmbH”), and the customer set forth on the Order Form (“Customer”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control.
Section 1. Services
The “Services” mean the products and services that are ordered by Customer from Certif-ID in an Order Form referencing this MSA . Services exclude any products or services provided by third parties, even if Customer has connected those products or services to the Services. Subject to the terms and conditions of this MSA, Certif-ID will make the Services available to Customer during the Term.
Section 2. Fees and Payment.
2.1. Fees. Customer will pay the fees specified in the Order Form (the “Fees”).
2.2. Payment; Taxes. Certif-ID International GmbH will invoice Customer for Fees, either within the Services or directly, within thirty (30) days of the Effective Date. Customer will pay all invoiced Fees on receipt of invoice. Any late payments will be charged with a late fee. Fees do not include local, state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Customer, except for taxes on Certif-ID International GmbH based on Certif-ID International GmbH’s income or receipts.
Section 3. Term and Termination.
3.1. Term and Renewal. This MSA commences on the Effective Date and will remain in effect through the term specified in the Order Form, and will renew as specified in the Order Form unless otherwise terminated in accordance with this Section (collectively the “Term”). If the Order Form does not specify, the Term will be one year and will automatically renew for successive one-year periods unless Customer provides Certif-ID with notice of termination at least thirty (30) days prior to the end of the Term.
3.2 Termination for Cause. A Party may terminate this MSA for cause (a) upon notice to the other Party of a material breach if such breach remains uncured after ten (10) days from the date of the breaching Party’s receipt of such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately by Certif-ID if Customer makes one of the Prohibited Uses below. Non-payment of Fees by Customer for sixty (60) days after issuance of an invoice , and any violation of the Prohibited Uses clause below will be considered material breaches of this MSA.
3.3. Effect of Termination and Survival: Upon termination of an Order Form or this MSA (a) with respect to termination of the entire MSA, all Order Forms will concurrently terminate, (b) Customer will have no further right to use the Services under the terminated or cancelled Order Forms and Certif-ID will remove Customer’s access to same, and (c) unless otherwise specified in writing, Customer will not be entitled to any refund of fees paid. The following Sections will survive termination: Section 2 (Fees and Payment), Section 5 (Confidentiality), Section 6.2 (Data Practices-Ownership), Section 8 (Intellectual Property Rights), Section 9.3 (Disclaimers), Section 10 (Indemnification), Section 11 (Limitation of Liability), and Section 12 (Miscellaneous). Termination of this MSA will not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this MSA.
Section 4. Ownership, License, and Use of the Services
4.1. Ownership. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (“Intellectual Property Rights”). Certif-ID will retain Intellectual Property Rights in the Services and all components of, or used to, provide the Services or created by the Services or by Certif-ID in the course of providing the Services (the “Services Information”). Customer will retain Intellectual Property Rights in all information it provides to Certif-ID as part of this MSA (other than Feedback as described below), including but not limited to in the course of its use of the Services (the “Customer Information”).
4.2. Feedback. Customer may, under this MSA, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Certif-ID (the “Feedback”). Customer provides Certif-ID a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback. Certif-ID also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback.
4.3 Licenses. Certif-ID hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to and license to access and use the Services as set forth in the Order Form all subject to the terms and conditions of this MSA and the Order Form. Customer hereby grants Certif-ID a non-exclusive, non-transferable, non-sublicensable right and license to use the Customer Information solely to provide the Services to Customer.
4.4 Authorized Users. Customer may designate and provide access to the Services to employees, agents, or authorized contractors (each an “Authorized User”). Customer is responsible for all use and misuse of the Services by Authorized Users and for adherence to all terms of this MSA by any Authorized Users, and references to Customer herein will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify Certif-ID of any unauthorized access or use of which Customer becomes aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of this MSA by Customer.
4.5. Prohibited Uses. Customer and Authorized Users will not: (a) “frame,” distribute, resell, or permit access to the Services by any third party other than as allowed by the features and functionality of the Services; (b) use the Services in violation of applicable laws; (c) interfere with, disrupt, or gain unauthorized access to the Services; (d) successfully or otherwise, attempt to: reverse engineer, discover the underlying source code or structure of, or copy the Services; (e) provide Certif-ID any Customer Information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party intellectual property rights; (f) transfer to the Services or otherwise use on the Services any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Services; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services; (h) provide access to the Services to an individual associated with a Certif-ID Competitor; or (i) extract information from the Services in furtherance of competing with Certif-ID. A “Certif-ID Competitor” is any entity that provides the same or similar goods and services to those provided to Certif-ID, as would be determined by a commercially reasonable individual.
Section 5. Confidentiality
If the parties have a separate mutual nondisclosure agreement, that agreement will control (the “Separate MNDA”). Otherwise, as used herein, the “Confidential Information” of a Party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (the “Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Services Information and Customer Information are Confidential Information under this MSA, or confidential under the Separate MNDA, as applicable. Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this MSA, such obligations including, in the case of Certif-ID, to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
Section 6. Privacy Practices
Section 7. Representations, Warranties, and Disclaimers.
7.1. Authority. Each Party represents that it has validly entered into this MSA and has the legal power to do so.
7.2. Warranties. Certif-ID warrants that during an applicable Term (a) the Security Statement accurately describes the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Information; and (b) the Services will perform materially in accordance with any applicable documentation provided to Customer. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in Section 3 (Term and Termination) herein.
7.3. Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND CERTIF-ID EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT CERTIF-ID DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM CERTIF-ID OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS MSA. THE PARTIES ADDITIONALLY AGREE THAT CERTIF-ID WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR CLIENT’S VARIOUS COMPLIANCE PROGRAMS, AND THAT THE SERVICES, TO THE EXTENT APPLICABLE, ARE ONLY TOOLS FOR ASSISTING CLIENT IN MEETING THE VARIOUS COMPLIANCE OBLIGATIONS FOR WHICH IT SOLELY IS RESPONSIBLE.
Section 8. Indemnification
8.1. Indemnification by Certif-ID International GmbH. Certif-ID International GmbH will indemnify and hold Customer harmless from and against any third party claim against Customer alleging that Customer’s use of a Service as permitted by this MSA infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret (an “IP Claim”). Certif-ID International GmbH will, at its expense, defend such IP Claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Certif-ID International GmbH for such defense, provided that (a) Customer promptly notifies Certif-ID International GmbH of the threat or notice of such IP Claim; (b) Certif-ID International GmbH will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, Certif-ID International GmbH will not settle or compromise any claim that results in liability or admission of any liability by Customer without prior written consent); and (c) Customer fully cooperates with Certif-ID International GmbH in connection therewith. If use of a Service by Customer has become, or, in Certif-ID International GmbH’s opinion, is likely to become, the subject of any such IP Claim, Certif-ID International GmbH may, at its option and expense, (i) procure for Customer the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Certif-ID International GmbH, terminate Customer’s subscription to the Service(s) and repay, on a pro-rata basis, any Fees previously paid to Certif-ID International GmbH for the corresponding unused portion of the Term for such Service(s). Certif-ID International GmbH will have no liability or obligation under this Section with respect to any IP Claim if such claim is caused in whole or in part by (x) Certif-ID International GmbH’s compliance with designs, data, instructions, or specifications provided by Customer; (y) modification of the Service(s) by anyone other than Certif-ID International GmbH or use of the Service(s) in violation of (i) this MSA, (ii) written instructions provided by Certif-ID International GmbH, or (iii) the product features of the Service(s); or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Certif-ID International GmbH to Customer and constitute Customer’s sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by Customer, Customer’s agents, or Authorized Users.
8.2. Indemnification by Customer. Customer will indemnify and hold Certif-ID International GmbH harmless against any third party claim (a) arising from or related to use of a Service by Customer, Customer’s agents, or Authorized Users in breach of this MSA; or (b) alleging that Customer’s Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret; provided (i) Certif-ID International GmbH promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Customer will not settle or compromise any claim that results in liability or admission of any liability by Certif-ID International GmbH without prior written consent); and (iii) Certif-ID International GmbH fully cooperates in connection therewith.
Section 9. Limitation of Liability.
Section 10. Miscellaneous.
10.1. Entire Agreement. This MSA and the applicable Order Form(s) constitute the entire agreement, and supersedes all prior agreements, between Certif-ID International GmbH and Customer regarding the subject matter hereof.
10.2. Assignment. Either Party may, without the consent of the other Party, assign this MSA to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party’s assets provided that (1) the other Party is provided prior notice of such assignment and (2) any such successor agrees to fulfill its obligations pursuant to this MSA. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
10.3. Severability. If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
10.4. Relationship of the Parties. The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
10.5. Notices. All notices provided by Certif-ID International GmbH to Customer under this MSA may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) to the contact mailing address provided by Customer on the Order Form; or (b) electronic mail to the electronic mail address provided for Customer’s account owner. Customer must give notice to Certif-ID International GmbH in writing by Courier to [email protected]. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
10.6. Governing Law, Jurisdiction, Venue. This MSA will be governed by the laws of the State of Cologne,Germany, without reference to conflict of laws principles. Any disputes under this MSA shall be resolved in a court of general jurisdiction in Cologne, Germany. Customer hereby expressly agrees to submit to the exclusive personal jurisdiction and venue of such courts for the purpose of resolving any dispute relating to this MSA or access to or use of the Services by Customer, its agents, or Authorized Users.
10.7. Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Certif-ID International GmbH’s employees or agents in connection with this MSA. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly give notice to Certif-ID International GmbH.
10.8. Publicity and Marketing. Certif-ID International GmbH may use Customer’s name, logo, and trademarks solely to identify Customer as a client of Certif-ID International GmbH on Certif-ID International GmbH’s website and other marketing materials and in accordance with Customer’s trademark usage guidelines, if Customer provides same to Certif-ID International GmbH. Certif-ID International GmbH may share aggregated and/or anonymized information regarding use of the Services with third parties for marketing purposes to develop and promote Services. Certif-ID International GmbH never will disclose aggregated and/or anonymized information to a third party in a manner that would identify Customer as the source of the information or Authorized Users or others personally.
10.9. Amendments. Certif-ID International GmbH may amend this MSA from time to time, in which case the new MSA will supersede prior versions. Certif-ID International GmbH will notify Customer not less than ten (10) days prior to the effective date of any such amendment and Customer’s continued use of the Services following the effective date of any such amendment may be relied upon by Certif-ID International GmbH as consent to any such amendment. Certif-ID International GmbH’s failure to enforce at any time any provision of this MSA does not constitute a waiver of that provision or of any other provision of this MSA.