Master Subscription Agreement
This Master Subscription Agreement ("MSA") is entered into between Social Plus North America Inc., a Delaware company with its registered office at 4400 Red River Street Austin, TX 78751 USA ("social.plus"), and the customer identified in the applicable Order Form (the "Customer").
This MSA governs Customer's access to and use of the collection of SDKs, APIs and UIkits known as social.plus platform (the "Product"). The terms of this MSA apply to all Order Forms executed between the Parties.
1. Subscription Rights
1.1. Subject to this Agreement and the applicable Order Form, social.plus grants Customer a limited, non-exclusive, non-transferable licence to access and use the Product during the applicable subscription term solely for Customer's business purposes.
1.2. The Customer may allow its employees, contractors or other authorised users ("Authorized Users") to access or operate the Product on its behalf. Customer remains responsible for all use of the Product through its accounts and for the acts and omissions of its Authorized Users.
1.3. The Customer shall not: i) remove or alter any copyright, trademark or proprietary notices in the Product; ii) reproduce, distribute, sublicense, sell or otherwise commercialise the Product except as expressly permitted under this Agreement; iii) reverse engineer, decompile, disassemble or attempt to derive the source code of the Product; or iv) use the Product in violation of applicable law or the Acceptable Use Policy.
2. Intellectual Property
2.1. The Product is owned by social.plus and its licensors and is licensed, not sold, to the Customer. All intellectual property rights in and to the Product are and shall remain the sole and exclusive property of social.plus.
2.2. Except for the limited licence granted under this Agreement, nothing in this Agreement transfers or grants to Customer any rights, title or interest in or to the Product or any related intellectual property.
2.3. The Customer acknowledges that social.plus may continue to develop, maintain and enhance the Product and may introduce new features, modules or products from time to time. Nothing in this Agreement restricts social.plus from developing, maintaining or distributing the Product or any other existing or future products or services.
3. Fees and Payments
3.1. The Customer agrees to pay the fees specified in the applicable Order Form in accordance with the payment terms set out therein.
3.2. In the event that an invoice remains unpaid after its due date, social.plus may charge a once-off administrative fee equal to USD 12 (twelve American dollars 00/100) plus value-added tax (VAT) and apply an interest at a rate of 8% (eight percent) per annum for each default day, until the Outstanding Invoice is paid in full.
3.3. If an Outstanding Invoice is not settled for more than 30 (thirty) days following its due date, social.plus reserves the right to suspend the Customer's access to the Product.
3.4. All the charges and fees are exclusive of applicable indirect taxes including but not limited to value-added tax (VAT), withholding (WHT), sales tax, or any other similar taxes imposed by relevant tax authorities (hereinafter, the "Indirect Taxes").
4. Confidentiality
4.1. If a Party discloses confidential or proprietary information ("Confidential Information") to the other Party, it should be kept strictly confidential and only disclosed to employees, affiliates or agents who are under an enforceable legal obligation to keep it confidential on a need to know basis.
4.2. The receiving Party agrees to: i) use the Confidential Information solely for the purposes of performing its obligations or exercising its rights under this Agreement; ii) protect the Confidential Information using a reasonable degree of care; and iii) disclose the Confidential Information only to employees, affiliates or agents who need to know it and who are subject to confidentiality obligations.
4.3. Confidential Information does not include information that: i) becomes publicly available without breach of this Agreement; ii) was already known to the receiving Party without restriction; iii) is independently developed without use of the other Party's Confidential Information; or iv) is lawfully obtained from a third party without restriction.
4.4. These confidentiality obligations shall continue for two (2) years following termination or expiration of this Agreement.
5. Data Privacy and Security
5.1. social.plus, as the data processor will process data in strict accordance with the applicable Data Processing Agreement.
5.2. In addition, each Party shall comply with applicable data protection and privacy laws in connection with its obligations under this Agreement.
6. Representation and Warranties
6.1. Each Party represents and warrants that it has the authority and capacity to enter into this Agreement and perform its obligations under it.
6.2. social.plus represents and warrants that: i) it has the right to grant the licences set out in this Agreement; and that ii) the Product, when used in accordance with this Agreement, will not knowingly infringe the intellectual property rights of any third party.
6.3. The Customer represents and warrants that: i) it will use the Product in compliance with applicable laws, this Agreement, and the social.plus Acceptable Use Policy.
6.4. Except as expressly stated in this Agreement, the Product is provided "as is" and "as available." To the fullest extent permitted by law, social.plus disclaims all other warranties, whether express, implied or statutory, including warranties of merchantability, fitness for a particular purpose and non-infringement.
7. Indemnification
7.1. The Customer agrees to defend, indemnify and hold harmless social.plus, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including attorneys' fees) relating to: (i) their use of the Product, (ii) any software or products the Customer develops in connection with their use of the Product, including a claim that such software or a product infringes or threatens to infringe any intellectual property rights of any person, and (iii) any non-compliance by the Customer with this Agreement.
8. Limitation of Liabilities
8.1. Neither party shall be liable to the other for any indirect, consequential, incidental or special damages, including loss of profits, loss of business, loss of revenue or loss of data.
8.2. Except for liability arising from fraud, wilful misconduct, breach of confidentiality obligations or indemnification obligations, the total aggregate liability of social.plus arising in connection with this Agreement shall not exceed the fees paid or payable by Customer under the applicable Order Form during the six (6) months from its start date.
9. Term and Termination
9.1. This Agreement becomes effective upon execution of the first Order Form and remains in effect until all Order Forms have expired or been terminated.
9.2. Either Party may terminate this Agreement or an Order Form if the other party materially breaches this Agreement and fails to cure the breach within thirty (30) days after written notice.
9.3. Termination or expiration of this Agreement shall not affect any rights, obligations or liabilities that accrued prior to the termination date.
9.4. Upon termination or expiration, the Customer's right to access and use the Product will cease; and each Party shall return or delete the other Party's Confidential Information, except to the extent retention is required by applicable law or retained in routine archival backups. Any retained Confidential Information shall remain subject to the confidentiality obligations set out in this Agreement.
9.5. Any provisions that by their nature should survive termination shall remain in effect.
10. Suspension
10.1. social.plus may suspend the Customer's access to the Product if it reasonably believes that Customer's use: i) violates this Agreement; ii) creates a security risk to the Product or other users; or iii) is required to comply with applicable law.
10.2. social.plus will use reasonable efforts to notify the Customer of such suspension.
11. General Terms
11.1. Assignment
Neither Party may assign this Agreement without the prior written consent of the other party, except in connection with a merger, acquisition or sale of substantially all of its assets.
11.2. Amendment
This MSA can only be amended by an instrument in writing, executed by authorised representatives of both Parties.
11.3. Severability
If any provision of this Agreement is found to be unenforceable by a Court in the competent jurisdiction, the remaining provisions shall remain in full force and effect.
11.4. Notices
All legal notices under this Agreement shall be sent to the contact details specified in the applicable Order Form. Notices to social.plus shall be sent to legal@social.plus.
11.5. Governing Law & Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The parties irrevocably agree that the courts of the State of Delaware shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement, including any non-contractual disputes or claims.