Last Updated August 18, 2021
This Master Service Agreement, including any applicable and incorporated Order Form(s), statements of work (“SOW(s)”), addenda and exhibits (collectively, this “Agreement,”) is entered into by the signatory parties below and effective as specified in the applicable Order Form (“Effective Date”). Customer and SucceedSmart, Inc. (“SucceedSmart”) hereby agree as follows:
1. License Grant/Limitations/Restrictions
This Pilot Agreement (“Agreement”) is made and entered into on the first day that the Pilot Services are activated for Customer’s use (“Pilot Service Activation Date”), and will remain in effect for the duration of the Pilot Period as specified below. The individual who has registered and signed up for the Pilot Services represents and warrants that he or she has the legal power and authority to enter into this Agreement and to legally bind the Customer (“Customer”) to the terms of this Pilot Agreement. The terms and conditions of this Agreement shall govern the Pilot Services to be provided by SucceedSmart during the Pilot Period. The term “SucceedSmart” shall include SucceedSmart, and any third parties which are providing third party services or products, on behalf of SucceedSmart, as part of the Pilot Services.
Subject to the terms and conditions of this Agreement, SucceedSmart hereby grants Customer a non-exclusive, non-transferable, non-assignable, limited license to use the Pilot Services during the Pilot Period solely for Customer’s own business purposes and strictly for purposes of its own evaluation of the SucceedSmart Services and not for any competitive purpose. The Pilot Service license is limited to the terms defined in the Order Form. All rights not expressly granted to Customer are reserved by SucceedSmart and its licensors. SucceedSmart reserves the right to make changes, modifications, reduction in functionality and enhancements to the Pilot Services, at any time, and from time to time without prior notice.
2. Limitations on Use
Customer may not release to any third party the results of any evaluation of the Pilot Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of SucceedSmart. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Pilot Services or the Content in any way; (ii) modify or make derivative works based upon the Pilot Services or the Content; (iii) reverse engineer the Pilot Services; or (iv) access the Pilot Services in order to build a competitive product or service. Additionally, Customer shall not use the Pilot Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.
3. Pilot Period and Requirements to Convert to a full Subscription License
The Pilot Period for the Pilot Services will be for one (1) month from the Pilot Service Activation Date, unless: a) such Pilot Period is for a longer term as specified by SucceedSmart; or b) is extended by mutual Agreement of the parties. Customer acknowledges and agrees that, at the end of the Pilot Period, Customer’s access to the Pilot Services will be terminated, with or without notice, unless Customer elects to license the Services on a paid subscription basis. Customer must contact SucceedSmart at least two (2) business days prior to the end of the Pilot Period if Customer wishes to continue using the Services beyond the Pilot Period. In the event Customer wishes to enter into a full production, subscription license for the use of the SucceedSmart Services, Customer will be required to (a) agree to a separate Master Subscription Services Agreement through the SucceedSmart website located at https://www.succeedsmart.com/masterservicesagreement (“Master Services Agreement”), and (b) execute an Order Form, detailing the Services, duration and pricing applicable to the use of the Services.
4. Customer’s Responsibilities
Customer is responsible for all activity occurring under Customer’s designated User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Pilot Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations. Customer shall: (i) notify SucceedSmart immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; (ii) report to SucceedSmart immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, SucceedSmart Technology, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users; and (iii) not impersonate another SucceedSmart user or provide false identity information to gain access to or use the Services.
5. Intellectual Property Ownership
SucceedSmart alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the SucceedSmart Technology, the Content and the Services and Deliverables (if any), including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, to any Deliverable, the SucceedSmart Technology or the Intellectual Property Rights owned by SucceedSmart. The SucceedSmart name, the SucceedSmart logo, and the product names associated with the Services are trademarks of SucceedSmart or third parties, and no right or license is granted to use them.
6. Suspension and Termination
SucceedSmart reserves the right to suspend or terminate this Agreement and the Pilot Services, with or without cause, at any time, with or without notice. Customer may terminate the Pilot Services, with or without cause, at any time, by providing a written notice to SucceedSmart at legal@succeedsmart.com.
7. Disclaimer of Warranty
THE SERVICES ARE PROVIDED “AS IS” AND SUCCEEDSMART MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SUCCEEDSMART SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR THE USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SUCCEEDSMART DOES NOT WARRANT THAT THE SERVICES, (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF SUCCEEDSMART TO ANY THIRD PARTY. SUCCEEDSMART’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SUCCEEDSMART IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY SUCCEEDSMART.
8. Limitation of Liability
IN NO EVENT SHALL SUCCEEDSMART’S AND ITS LICENSORS BE LIABLE FOR ANY DAMAGES, OF WHATEVER NATURE, AS A RESULT OF THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF SUCCEEDSMART OR SUCCEEDSMART’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Assignment
Customer may not assign this Agreement to any third party except upon SucceedSmart’s prior written consent, which consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
10. Confidentiality
Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a “Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement or the Post Pilot Agreement. For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement. As used herein, the term “Confidential Information” refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans. If Confidential Information is (a) provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), such shall be conspicuously designated as “Confidential” (or with some other similar legend) or (b) provided orally, such shall be identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure, unless a reasonable person would understand such information to be confidential based on its content. Notwithstanding the above, SucceedSmart Confidential Information shall include the SucceedSmart Technology and all pricing terms offered to Customer under any Order Form. Confidential Information does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, or (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party. The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement or, if applicable, the Post Pilot Agreement, and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party, in each case such person must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein. Each Receiving Party’s confidentiality obligations with respect to such Confidential Information, shall remain in effect for the term of this Agreement and Post Pilot Agreement and for a period of three (3) years after the termination or expiration of this Agreement and, if applicable, the Post Pilot Agreement.
11. General/Notices
This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Pilot Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara, California. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and SucceedSmart as a result of this Agreement or use of the Pilot Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, (including any other documents referenced therein), comprises the entire agreement between Customer and SucceedSmart regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. All notices from Customer to SucceedSmart may be made by emailing legal@succeedsmart.com and SucceedSmart may give notice by emailing Customer’s contact as specified on the registration form.
