SlapFive Master Service Agreement
Last updated: May 20, 2022
1. Definitions: Certain capitalized terms, not defined above, have the meanings set forth below.
“Agreement” means these Terms and Conditions together with the Cover Page and any Services Addendum attached hereto from time to time.
“Client Data” means electronic data and information in any form provided by Client and created by SlapFive on behalf of Client in connection with Client’s use of the SlapFive Services, including Client’s customer information and audio/video files, but excluding Content.
“Content” means information provided by SlapFive and made available to Client through any SlapFive Service.
“Cover Page” means the cover page of this Agreement to which these Terms and Conditions were originally attached.
“Services Addendum” means any services addendum executed by SlapFive and Client which may be attached hereto from time to time for Client’s license or use of other SlapFive Services.
“SlapFive Services” shall mean any SlapFive service provided to Client on a SaaS-basis as set forth on the Cover Page of this Agreement and on any Services Addenda that SlapFive and Client mutually execute from time to time pursuant to the terms of this Agreement.
“User” means an individual who is authorized by Client to use a SlapFive Service, for whom Client has purchased a subscription (or in the case of any SlapFive Services provided by SlapFive without charge, for whom a SlapFive Service has been provisioned), and to whom SlapFive (or, when applicable, SlapFive at Client’s request) have supplied a user identification and password (for SlapFive Services utilizing authentication). Users may include, for example, Client’s employees, consultants, contractors, agents, and third parties with which Client transacts business.
2. Responsibilities; Usage Limits; Restrictions.
2.1 SlapFive Responsibilities. SlapFive will (a) make the Services and Content available to Client pursuant to this Agreement and the applicable Services Addenda, and hereby grants to Client a non-exclusive license to access and use the SlapFive Services and Content pursuant to the terms of this Agreement, (b) provide Client the applicable SlapFive standard support for each SlapFive Service at no additional charge beyond the applicable subscription fee for such SlapFive Service, (c) maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, and (d) use commercially reasonable efforts to make the online SlapFive Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond SlapFive’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving SlapFive’s employees), Internet service provider failure or delay, or denial of service attack.
2.2 Client Responsibilities. Client will (a) be responsible for Client’s compliance with this Agreement and Services Addenda, (b) be responsible for the accuracy, quality and legality of Client Data and the means by which SlapFive acquired Client’s Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify SlapFive promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Services Addenda and applicable laws and government regulations, and (e) comply with terms of service of any Non-SlapFive Applications with which Client uses Services or Content.
2.3 Usage Limits. Services and Content are subject to usage limits only if specified in the Cover Page or applicable Service Addenda. If Client exceeds a usage limit, SlapFive may work with Client to seek to reduce Client’s usage so that it conforms to that limit. If, notwithstanding SlapFive’s efforts, Client is unable or unwilling to abide by a contractual usage limit, the parties will execute a Service Addendum for additional quantities of the applicable Services or Content.
2.4 Restrictions. Client will not (a) make any SlapFive Services or Content available to, or use any SlapFive Services or Content for the benefit of, anyone other than Client or Users, unless expressly stated otherwise in an Services Addenda, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any SlapFive Services or Content, or include any SlapFive Services or Content in a service bureau or outsourcing offering, (c) knowingly use a SlapFive Services or Non-SlapFive Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to knowingly store or transmit material in violation of third-party privacy rights, (d) knowingly interfere with or disrupt the integrity or performance of any SlapFive Services or third-party data contained therein, (e) attempt to gain unauthorized access to any SlapFive Services or Content or its related systems or networks, (f) permit direct or indirect access to or use of any SlapFive Services or Content in a way that circumvents a contractual usage limit, or use any of SlapFive’s Services to access or use any of SlapFive’s intellectual property except as permitted under this Agreement, a Services Addendum, (g) copy a SlapFive Services or any part, feature, function or user interface thereof, (h) copy Content except as permitted herein or in a Service Addendum, (i) frame or mirror any part of any SlapFive Services or Content, (j) access any SlapFive Services or Content in order to build a competitive product or service or to benchmark with a Non-SlapFive product or service, or (k) reverse engineer any SlapFive Services (to the extent such restriction is permitted by law). Any use of the SlapFive Services in breach of this Agreement or Service Addenda, by Client or Users that in SlapFive’s reasonable judgment threatens the security, integrity or availability of SlapFive’s services, may result in SlapFive’s immediate suspension of the SlapFive Services, however SlapFive will provide Client with notice and an opportunity to remedy such violation or threat prior to such suspension.
2.5 Retained Rights; Ownership. Subject to the rights granted in this Agreement, SlapFive retains all right, title and interest in and to any and all SlapFive Services and Client retains all right, title and interest in and to any and all Client Data.
3. Term and Termination.
3.1 The term of this Agreement shall commence on the Subscription Start Date and expire on the last to expire subscription for any SlapFive Services provided hereunder, unless terminated as set forth below.
3.2 A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.
3.3 Upon expiration or termination of this Agreement: (a) Client shall cease use of the SlapFive Services, (b) each party shall immediately destroy or, if requested by a Party, return all (including any copies of) Confidential Information (as defined below) of the other Party within ten (10) calendar days or as otherwise designated; (c) upon request, each Party shall provide written certification that the foregoing obligations have been completed; and (d) Sections 1 and 4-8 shall survive expiration and termination of this Agreement and remain effective.
3.4 Upon request by Client made within 90 days after the effective date of termination or expiration of this Agreement, or for a longer period as mutually agreed to by the parties, SlapFive will make Client Data available to Client for export or download. After such 90-day or other agreed-upon period, SlapFive will have no obligation to maintain or provide any Client Data and will thereafter delete or destroy all copies of Client Data in SlapFive’s systems or otherwise in SlapFive’s possession or control, unless otherwise prohibited by applicable laws.
4.1 Each party (“Receiving Party”) acknowledges that it may receive from the other (“Disclosing Party”) confidential information relating to the Disclosing Party and such confidential information includes, but is not limited to, technical, business, marketing and financial information, and any other information that could reasonably be considered confidential or proprietary (“Confidential Information”). The terms of this Agreement, the SlapFive Services, and all technical information relating thereto shall be considered Confidential Information of SlapFive. Client Data shall be considered Confidential Information of Client.
4.2 Confidential Information does not include information that: (a) is or becomes generally available to the public other than through a wrongful act of the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it to the Receiving Party; or (c) is independently developed by the Receiving Party, its employees or third party contractors without access to or use of the Disclosing Party’s Confidential Information.
4.3 During and after the term of this Agreement, the Receiving Party shall: (i) not use (except for performance of this Agreement) or disclose Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party; and (ii) take no less than the same measures that it takes with its own Confidential Information, and in any case no less than reasonable measures, to maintain the Confidential Information of the Disclosing Party in confidence.
4.4 Either party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.
4.5 All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its Confidential Information.
4.6 In the event of breach or anticipated breach either party may seek injunctive relief or any other remedy at law.
4.7 If the parties have entered into a separate nondisclosure agreement, the confidentiality provisions of this Agreement supersede and replace the terms of such nondisclosure agreement in its entirety.
4.8 SlapFive will not: (i) use Client Data other than to the extent necessary to provide the SlapFive Services described herein; (ii) copy, modify, create derivative works of or disclose Client Data; or (iii) commercially exploit Client Data or allow it to be commercially exploited on SlapFive’s behalf. SlapFive will return Client Data upon Client’s request. SlapFive will implement and maintain administrative, physical and technical safeguards that prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any Client Data as may be held or accessed by SlapFive. Such safeguards will include, without limitation, an information security program that meets the generally accepted industry practice to safeguard Client Data. Such information security program will include, without limitation, (i) adequate physical security of all premises in which Client Data will be processed or stored; (ii) all reasonable precautions taken with respect to the employment of and access given to SlapFive personnel; and (iii) an appropriate network security program (which includes, without limitation, encryption of all sensitive or private data). SlapFive agrees not to utilize any Client Data unless it is necessary to do so in order to fulfill an obligation under this Agreement. SlapFive also agrees that it will not sell, disclose, transfer, share or rent any Client Data under any circumstances. SlapFive will notify Client immediately following discovery of any suspected breach or compromise of the security, confidentiality, or integrity of any Client Data. Written notification provided pursuant to this paragraph will include a brief summary of the available facts, the status of SlapFive’s investigation, and if known and applicable, the potential number of persons affected by release of data relating to such security breach (“Affected Persons”). If applicable, upon written request from Client, SlapFive agrees to notify the Affected Persons regarding any security breach in a form approved in writing by Client. Such notices will be delivered within a reasonable time at Client’s direction. SlapFive agrees that it will not communicate with any third party, including, but not limited to the media, vendors, consumers and Affected Persons regarding any security breach without the express written consent and direction of Client. At Client’s request, SlapFive will execute and abide by the terms of any agreements as may be required by applicable law or regulation.
5. Fees and Payment.
5.1 In consideration for the access grant to the SlapFive Services, Client will pay all applicable subscription fees and services fees set forth on the Cover Page or any Services Addenda attached to this Agreement from time to time.
5.2 All invoices shall be due and payable in full within thirty (30) days from the invoice date of an undisputed invoice.
5.3 All fees are payable in U.S. Dollars. Fees are exclusive of any applicable taxes, including without limitation, sales, use, value-added, and withholding taxes, and Client shall pay all such taxes when due (other than taxes that are (i) based on SlapFive’s net income; (ii) franchise taxes or other taxes based on SlapFive’s corporate existence or status; or (iii) due in whole or in part because of any failure by SlapFive or its agents to file any return or information required by law, rule, or regulation). Any taxes will be separately stated on the applicable invoice to Client.
SlapFive warrants that the SlapFive Services will be provided in a professional manner. SlapFive represents and warrants that it complies with all applicable laws with regard to the SlapFive Services provided hereunder. SlapFive represents and warrants that Client’s use or access of the SlapFive Services will not cause any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code to be installed or introduced on Client’s computer, telecommunication or other information systems. EXCEPT AS PROVIDED HEREUNDER, THE SLAPFIVE SERVICES AND ANY SERVICES DELIVERED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND SLAPFIVE AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING, OR OTHERWISE. CLIENT AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY WARRANTY WITH REGARD TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. If Client reports an error in the SlapFive Services, Client’s sole remedy will be to have SlapFive provide warranty service to Client at no additional charge and will include all services necessary to enable SlapFive to comply with the warranties set forth in this Agreement. In the event SlapFive is not able to cure any breach of the warranty within fifteen (15) days of written notice thereof from Client, Client will at its option have the right to (i) terminate this Agreement and receive a refund of the fees which are allocable to the thirty (30) day period prior to the date the warranty claim was made and any fees Client has prepaid for the SlapFive Services that it has not received as of the date of the warranty claim or (ii) elect to continue the time SlapFive has to cure the defect and receive a reduction in all fees to be agreed upon by both parties for each month thereafter that the defect remains uncured.
7. Limitation of Liability.
7.1 EXCEPT FOR BREACHES OF SECTION 4, OBLIGATIONS TO COMPLY WITH APPLICABLE LAW OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER NOR TO ANY THIRD PARTIES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SLAPFIVE SERVICES, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, REGARDLESS WHETHER FORESEEABLE OR NOT AND REGARDLESS WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT, NOR FOR ANY LOSS OF PROFITS, DATA, OR REVENUE, NOR DAMAGE TO REPUTATION OR GOODWILL.
7.2 FURTHERMORE, EXCEPT FOR BREACHES OF SECTION 4, OBLIGATIONS TO COMPLY WITH APPLICABLE LAW OR INDEMNIFICATION OBLIGATIONS, IN NO CASE SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTIES FOR ANY CLAIM EXCEEDING THE GREATER OF (1) FEES PAID OR PAYABLE UNDER THIS AGREEMENT OR (2) U.S. $10,000 UNDER THIS AGREEMENT.
7.3 THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO ANY DEATH OR PERSONAL INJURY CAUSED BY SLAPFIVE’S NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
8. IP Indemnification. SlapFive agrees to indemnify, defend and hold harmless Client and its officers, directors, employees and agents from and against all claims and causes of action arising out of an allegation that the SlapFive Services infringes or misappropriates a third party’s intellectual property rights (including but not limited to patent, copyright, trademark and trade secret), and (b) pay the resulting cost and damages or the amount stated in a written settlement, as long as Client gives SlapFive (1) prompt written notice of such claim or action; (2) the right to control and direct the investigation, preparation, defense, and settlement of the action, provided that SlapFive does not settle any such claim without Client’s prior written consent (such consent not to be unreasonably withheld); and (3) reasonable assistance and information with respect to the claim or action, at SlapFive’s expense. If a final injunction is obtained against Client’s right to continue using the Content or SlapFive Services or, if SlapFive’s opinion the Content or SlapFive Services are likely to become the subject of a claim, then SlapFive may, at its election, either (a) promptly obtain the right for Client to continue to use the Content or SlapFive Services; or (b) replace or modify the Content or SlapFive Services so that it no longer infringes but functions in a materially equivalent manner.
9. General Provisions.
9.1 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement without the other party’s prior consent, such consent not to be unreasonably withheld, except that either party may assign this Agreement without the other party’s consent: (a) to an affiliate if the affiliate agrees in writing to be bound by the terms of this Agreement, or (b) to any entity that acquires all or substantially all of the assigning party’s assets or capital stock or results from one or more mergers or initial public offerings or any other corporate reorganization. Any attempted assignment or transfer in violation of the foregoing will be void, except that either party may assign this Agreement in full to a successor to its business in connection with a merger or sale of all or substantially all its assets relating to the subject matter hereof. This Agreement shall be binding upon the parties and their respective successors and permitted assigns.
9.2 Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by email, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the Cover Page, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
9.3 Governing Law. The Agreement is governed by the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts of the Commonwealth of Massachusetts located in Middlesex or Suffolk County, or the United States District Court in Boston, Massachusetts, shall have non-exclusive jurisdiction over any proceeding to enforce the rights of any party under this Agreement, and each party waives all rights to object to the jurisdiction of such courts because of inconvenience of forum.
9.4 Waivers; Severability. Any waivers shall be effective only if made by writing signed by representatives authorized to bind the parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
9.5 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
9.6 Independent Contractors. SlapFive’s relationship to Client is that of an independent contractor, and neither party is an agent or partner of the other. Client will not have and will not represent to any third party that it has, any authority to act on behalf of SlapFive.
9.7 Publicity. SlapFive will not issue any press releases, make any other disclosures regarding this Agreement or its terms or the nature or existence of any relationship between the parties, without Client’s prior written consent. Notwithstanding the foregoing, SlapFive shall be permitted to disclose that Client is a customer of SlapFive subject to the limitations set forth in preceding sentence.
9.8 Insurance. SlapFive maintains commercial liability insurance with Hiscox Insurance Company, Inc. with an aggregate limit of $2,000,000 and an occurrence limit of $1,000,000. SlapFive maintains professional liability (errors & omissions) insurance with an occurrence limit of $1,000,000. SlapFive maintains cyber insurance with an aggregate limit of $1,000,000 and a claim limit of $1,000,000. SlapFive agrees to provide Client with specimen certificates of insurance upon request that name Client as an additional insured.