MASTER SUBSCRIPTION AGREEMENT TERMS & CONDITIONS
THIS MASTER SUBSCRIPTION AGREEMENT (the “Agreement”) governs your access to and use of software services provided by Scrollmotion, Inc. d/b/a Ingage (Ingage), a Delaware Corporation with an address at 22 W. 38th Street - Floor 6, New York, NY 10018 (“we,” and its derivatives). By executing a Subscription Form or Statement of Work (SOW) referencing this Agreement, you agree to the following terms and conditions. If you do not so agree, you may not access or use our software or services. “You” and its derivatives refers to the entity entering into this Agreement.
UPDATED: MARCH 29, 2019
1. CERTAIN DEFINITIONS
1.1 “Applet” means a rich content capable digital file built using our Software.
1.2 “Charges” means fees for Software access (“Subscription Fees”) and, where applicable, work we perform pursuant to an SOW (“Services Fees”).
1.3 “Confidential Information” means non-public or proprietary information in any form disclosed by or on behalf of either Party that (i) is marked or identified as “confidential” or with a similar designation, or (ii) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential.
1.4 “Consumer Application” means an Applet that has been converted into an executable file downloadable from retail “app stores”.
1.5 “Documentation” means written descriptions of Software features and functionality, as the same may be amended from time to time during the Term. Documentation is available at http://support.ingage.io
1.6 “Intellectual Property Rights” means all intellectual and industrial property rights in any jurisdiction worldwide, including copyrights, patents, trademarks, trade names, trade secrets, mask work rights, moral and contract rights, and all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof.
1.7 “OS Provider” means an entity that controls a mobile computing operating system (i.e., Apple for iOS).
1.8 “Party” means either you or us, depending on context; “Parties” means you and us.
1.9 “Software” means any of our proprietary software products that enable the creation, distribution and management of Applets for mobile devices.
1.10 “Sensitive Information” means personally identifiable information, regulated information (e.g., data subject to HIPAA or GLBA) and other data that is subject to more heightened protections than Confidential Information.
1.11 “Services” means work we perform pursuant to the Services Rider that is defined in an SOW.
1.12 “Services Rider” means Exhibit A to this Agreement, setting forth terms and conditions specific to our performance of Services related to your Subscription.
1.13 “Specifications” means objective standards for the features and functions of (a) Software set forth in the Documentation, or (b) deliverables set forth in an SOW.
1.14 “Statement of Work” or “SOW” means a document contracting for specific Services. SOWs are subject to the Services Rider and this Agreement.
1.15 “Subscription” means the right to access and use Software granted hereunder. Subscriptions are detailed in a “Subscription Form” agreed to by the Parties and referencing and governed by this Agreement.
1.16 “Updates” means minor revisions of Software usually designated by the same numeric prefix but a different suffix (i.e., 5.2 as an Update to 5.1).
1.17 “Upgrades” means significant revisions of Software usually designated by a different numeric prefix (i.e., 6.0 as an Upgrade to 5.x). For Android, an Upgrade means a change in the named version (e.g., Jellybean, Kitkat) regardless of the numerical designation. An Upgrade is also a “major version” change
1.18 “User” means an individual who may access Software. Users may include (i) your employees, consultants, contractors and agents, and (ii) employees of third parties that provide services to you (i.e., design agencies).
1.19 “Your Content” means all text, pictures, graphics, sound, video and other content you incorporate or have incorporated into an Applet or otherwise distribute via the Software.
2.1 General Ingage Software lets Users create Applets and distribute and manage Applets and other digital files. The Software licensed is specified in your Subscription. Documentation for the Software is available at http://support.ingage.io
2.2 Software License
(a) Grant. We grant you a limited, non-exclusive, non-transferable, worldwide right for your Users to use the Software for your business purposes during the Term as set forth in the Subscription Form. WE RETAIN ALL OTHER RIGHT, TITLE AND INTEREST IN AND TO THE SOFTWARE, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS.
(b) Restrictions. You may not (1) repackage Software elements on a standalone basis, (2) incorporate Software elements into any product except Applets, (3) make Software available to anyone except Users, (4) sell, resell, rent or lease access to Software, or (5) isolate or extract Software elements from Software or an Applet for any purpose that was not facilitated by the Software. Except as permitted by applicable law, you may not yourself or through others reverse engineer, decompile, disassemble or attempt to derive the source code of the Software.
2.3 Access. We will provide you with Software access following receipt of the initial Subscription Fee. An internet connection is required to download certain Software elements and Applets to your mobile device, as well as to access cloud-based Software elements identified in the Documentation. Once Applets or other files are downloaded to a User’s mobile device, they are accessible on such device without an internet connection, (provided the User does not log out of Software that uses cloud-based authentication).
(a) The Software has administrative, physical and technical safeguards appropriate for the protection of Confidential Information.
(b) We will not modify Your Content except as set forth in an SOW.
(c) We are not responsible for any compromise of data caused by transmission across non-Ingage computer networks (including the Internet).
(d) THE SOFTWARE IS NOT INTENDED FOR THE STORAGE OR TRANSMISSION OF SENSITIVE INFORMATION. WE ARE NOT RESPONSIBLE FOR LOSS, CORRUPTION, OR MISAPPROPRIATION OF SENSITIVE INFORMATION UPLOADED TO THE SOFTWARE.
2.5 Software Maintenance
(a) During the Term, we will (i) resolve issues with the then-current version of the Software in a timely manner, and (ii) as promptly as reasonably possible following an Update or Upgrade to a compatible OS Provider operating system, modify the Software to remain compatible with the current and immediately prior major version of such operating system.
(b) We are not required to:
(i) keep Software compatible with mobile devices that are not supported on the current version of the applicable operating system;
(ii) support Consumer Applications except as set forth in the Services Rider; or
(iii) support non-current versions of Software.
(c) Software training and support is specified in the Documentation for the relevant Software.
3. YOUR RESPONSIBILITIES
3.1 Your Content. You are solely responsible for Your Content as uploaded to Software or integrated into an Applet (except where we create or modify such Applet, in which case the Services Rider applies). We expressly disclaim any liability arising from Your Content. You may not use Software to transmit, store, display, distribute or otherwise make content available that is illegal, harmful, or offensive, including content that is defamatory, obscene, abusive, invasive of privacy, pornographic, or otherwise objectionable.
3.2 Use and Access. Only Users may access Software. You will ensure that each User uses Software in accordance with applicable laws and this Agreement and, maintains a unique user ID that is not shared with any other person.
3.3 Internet Access. You are responsible for any network or internet connectivity required to access or use the Software.
3.4 Distributor Agreements.You are responsible for all OS Provider and/or MDM agreements required for you to distribute Software within your organization (and Consumer Applications if applicable).
3.5 General. In addition to obligations identified elsewhere in this Agreement, you will provide access to such information, personnel and systems we reasonably require to support the Subscription and Services.
4.1 Charges. You will pay the Charges set forth in the Subscription Form and any SOWs (if applicable).
4.2 Expenses. You will reimburse us for the actual cost of travel and other expenses incurred in connection with this Agreement in compliance with our expense policy.
4.3 Invoicing and Payment
(a) Subscription Fees will be invoiced annually in advance and Services Fees will be invoiced as set forth in the applicable SOW. The initial Subscription Fee will be invoiced on the date the Subscription Form is executed (the “Effective Date”). Subsequent invoices will be issued thirty (30) days prior to the anniversary of the Effective Date based on the number of Users and Subscription rates in effect on such date.
(b) Invoices will be sent by email@example.com. Charges are payable in U.S. dollars and due thirty (30) days from the date of invoice. We may suspend your Software access if undisputed amounts remain unpaid after the due date.
4.4 Taxes. The Charges do not include, and you will pay, all sales, use, excise, value-added and other taxes levied upon either Party related to this Agreement, except for taxes on our net income.
5. TERM AND TERMINATION
5.1 Term. This Agreement is valid from the Effective Date until the Subscription is terminated as set forth herein (the “Term”). The initial Subscription is for one (1) year and will renew automatically thereafter on the anniversary of the Effective Date, absent notice of non-renewal by either Party not less than thirty (30) days before such date.
5.2 Termination for Cause. Either Party may terminate this Agreement or an SOW for a material breach that remains uncured thirty (30) days after the breaching Party’s receipt of written notice thereof.
5.3 Effect of Termination. Upon termination of this Agreement: (a) the Subscription will end immediately; (b) each Party will promptly destroy or return, at its expense, the other Party’s Confidential Information, provided that the Parties may retain limited copies of such information subject to Section 8 solely for archival purposes; and (c) you will pay all Charges accrued prior to the effective date of termination. If you terminate the Agreement for cause, we will refund prepaid Subscription Fees for periods following the date of termination. Where relevant, this Section 5.3 will apply to SOW termination. Termination of an SOW will not affect other SOWs; termination of this Agreement will terminate all SOWs. Termination-related payments will be due within sixty (60) days of the date of termination.
5.4 Survival. Sections 4, 5.3, 7, 8, 9, and 10 will survive termination of this Agreement or an SOW.
6. WARRANTY AND DISCLAIMER
(a) We warrant that the Software will function substantially in accordance with the Documentation.
(b) Your sole remedy for a breach of the foregoing warranty will be for us to promptly modify the Software so that it conforms with the warranty at no additional cost to you.
(c) The warranty provided in Section 6.1(a) is void if non-conformance is caused by (i) use of Software in violation of this Agreement or (ii) your failure to use Software Updates or Upgrades provided as part of the Subscription.
6.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, SOFTWARE IS PROVIDED “AS IS”, WITHOUT ANY WARRANTY OF ANY KIND. TO THE GREATEST EXTENT ALLOWED BY LAW, WE DISCLAIM ALL WARRANTIES NOT EXPRESSLY PROVIDED FOR HEREIN.
7.1 By Us
(a) We will defend, indemnify and hold you harmless from all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, including reasonable and related attorneys’ fees and court costs, arising from a third party claim that Software infringes such party’s Intellectual Property Rights (“Infringement Claims”).
(b) If an Infringement Claim is brought or threatened, we may, in our sole discretion, (i) secure the right for you to continue using the allegedly infringing item, or (ii) modify or replace the allegedly infringing item to make it non-infringing, while maintaining materially similar functionality of the affected Software elements. If neither (i) nor (ii) is commercially reasonable in our sole judgment, you will, upon notice from us, cease use of the allegedly infringing item and receive an equitable adjustment of the related Charges.
(c) Section 7.1(a) does not apply to Infringement Claims that arise from: (i) your use of Software in violation of this Agreement, (ii) your failure to use Software Updates or Upgrades provided as part of the Subscription.
7.2 By You. You will defend, indemnify, and hold us, our agents, officers and employees, harmless from all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, including reasonable and related attorneys’ fees and court costs, arising from a third party claim alleging that Your Content as uploaded to the software infringes such party’s Intellectual Property Rights.
7.3 Procedures. The obligations in this Section 7 are contingent on the indemnified Party: (a) promptly notifying the indemnifying Party of any claim; (b) granting the indemnifying Party sole control over the defense and/or settlement of the claim (provided that a settlement may not impose costs or liability on the indemnified Party without its consent); and (c) providing reasonable assistance to the indemnifying Party at such Party’s expense.
7.4 Sole Remedy. The remedies in this Section 7 are the indemnified Party’s sole remedy, and the indemnifying Party’s entire liability, with respect to any indemnifiable claim.
8. CONFIDENTIAL INFORMATION
8.1 Ownership. Each Party may have access to the other Party’s Confidential Information as a result of this Agreement. Confidential Information is the sole property of the disclosing Party. This Agreement’s terms are Confidential Information of the Parties, but the existence of this Agreement is not.
8.2 Use. Each Party will: (a) only use Confidential Information to fulfill its obligations hereunder; (b) only provide access to Confidential Information on an “as-needed” basis to its personnel, agents, and/or consultants who are bound by obligations materially similar to this Section
8.2, and (c) maintain Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. Subject to Section 5.3, each Party will promptly return or destroy the other Party’s Confidential Information upon termination or expiration of this Agreement. The obligations in this Section 8.2 will apply during and for three (3) years after the Term, except in the case of Confidential Information that is a trade secret, in which case the obligations will remain in effect for so long as the trade secret is maintained.
(a) Confidential Information does not include, and Section 8.2 does not apply to, information that is: (i) publicly available when disclosed or becomes publicly available without fault of the recipient after disclosure; (ii) rightfully communicated to the recipient by entities not bound to keep such information confidential, whether prior to or following disclosure, (iii) independently developed by recipient; or (iv) approved for unrestricted disclosure by the disclosing Party.
(b) A recipient may disclose the other Party’s Confidential Information only as required: (i) by court order or applicable law (provided that, to the extent legally permissible, the recipient promptly notifies the other Party of such requirement and cooperates with the other Party’s reasonable and lawful efforts to prevent or limit the scope of such disclosure, at the other Party’s expense); or (ii) to establish its rights under this Agreement.
8.4 Software Information. We collect de-personalized information about your use of Software to fulfill our obligations hereunder and improve such Software. Such information is Confidential Information of both Parties; aggregated information about the use of Software by multiple customers is our Confidential Information.
9.1 LIABILITY. NEITHER PARTY WILL BE LIABLE UNDER ANY THEORY OF DAMAGES FOR ANY LOST BUSINESS, LOST PROFITS, LOST SAVINGS, LOST REVENUE, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF A BREACH OF THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM LIABILITY FOR DAMAGES ARISING OUT OF A BREACH OF THIS AGREEMENT WILL BE THE FEES YOU PAID FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
9.2 EXCEPTIONS AND APPLICABILITY. SECTION 9.1 WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY. SECTION 9.1 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR PROVEN INEFFECTIVE.
10. GENERAL PROVISIONS
10.1 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, except if there is a merger, consolidation or sale of all or substantially all of a Party’s stock or assets.
10.2 Entire Agreement; Amendment. This Agreement (a) is the Parties’ entire understanding regarding its subject matter, and (b) supersedes all other oral or written agreements of the Parties as to such subject matter. We may update this Agreement by modifying this web page, and will indicate the date of any such updates above. You will be deemed to have accepted such modifications absent Notice within thirty (30) days of the date posted. This Agreement may also be amended in a writing consented to by the Parties, which writing and consent may be via email. Any terms and conditions in or referenced by an invoice, purchase order or other such document issued pursuant to this Agreement will have no force or effect.
10.3 Notices. A communication intended to have legal effect under this Agreement (a “Notice”) must be written and delivered to (i) us at the address set forth in the preamble, or (ii) you at the address provided on the applicable Subscription or SOW by personal delivery, certified mail (postage pre-paid, return receipt requested), or a commercial courier requiring signature for delivery, and will be effective on receipt or when delivery is refused. Operational communications, including changing a Party’s notice address, may be delivered via email.
10.4 Export Compliance. The Software and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. You represent that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Software in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea (region of Ukraine)) or in violation of any U.S. export law or regulation.
10.5 Independent Contractors. We are an independent contractor, and this Agreement does not create a joint venture, partnership, principal-agent or employment relationship between the Parties. Neither Party will have, or represent to a third party that it has, the authority to act for or bind the other Party.
10.6 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto.
10.7 Attribution. We may identify you as a client in standard marketing materials.
10.8 Severability. Any provision of this Agreement found invalid or unenforceable will be restated to reflect the original intent as closely as possible in accordance with applicable law. The invalidity or unenforceability of any provision herein will not affect the validity or enforceability of any other provisions.
10.9 Force Majeure. Neither Party will be liable for a failure to fulfill its obligations due to causes beyond its reasonable control that can not be mitigated through the exercise of due care.
10.10 Governing Law and Venue. This Agreement, including its formation, will be governed by and interpreted according to the laws of the State of New York without regard to its conflicts of laws provisions that would require a different result. A cause of action relating to this Agreement may only be brought in the state or federal courts in New York County, New York.
10.11 Waiver. A Party’s waiver of a breach of this Agreement will not waive any other or subsequent breach.
10.12 Headings and Interpretation. Headings are for reference only and do not affect the Parties’ obligations. As used herein, “may” means “has the right, but not the obligation, to”; “includes” and its variations means “includes, but is not limited to”; and “days” means calendar days, provided that obligations that would be due on a weekend or holiday will be due on the next business day following such weekend or holiday.
10.13 Non-Solicitation. During and for one (1) year after the Term, you will not induce or attempt to induce our employees or independent contractors to cease their relationships with us.
MASTER SUBSCRIPTION AGREEMENT
EXHIBIT A-SERVICES RIDER
This Services Rider applies to your receipt of Services related to Software, and is incorporated into the Master Subscription Agreement governing your Subscription to Ingage Software. This Rider will become effective on the date the Parties execute a SOW referencing the Agreement and will remain in effect for so long as work is being performed under any such SOW. We will not perform Services without an SOW.
a) Statements of Work. Each SOW will specify, as applicable, (i) implementation and integration work to be performed, (ii) the Specifications for any Applets to be built or modified, (iii) the estimated schedule for the Services, (iv) each Party’s other obligations with respect to the Services, and (v) the Charges payable for such Services. SOWs will be incorporated into the Agreement upon execution. If there is a conflict between (1) the provisions of the Agreement and this Services Rider, this Services Rider will control, or (2) an SOW and this Services Rider or the Agreement (together, the “Agreement Terms”), the Agreement Terms will control, unless the SOW references the specific Agreement Terms to be superseded.
b) Subcontractors. We may subcontract our obligations hereunder, provided that (i) subcontractors are bound to confidentiality terms materially similar to Section 8 of the Agreement, and (ii) we are responsible for subcontractors to the same extent as if we had performed the subcontracted functions ourselves.
c) Delays. A Party’s delay or failure to fulfill its obligations that prevents or delays the other Party’s performance will extend the schedule for completion of the affected Party’s obligations on a day-for-day basis (or longer if required by the nature of the delay or failure), provided that the affected Party makes commercially reasonable efforts to timely fulfill its obligations despite such failure or delay.
2) APPLETS AND CONSUMER APPLICATIONS.
a) General. All Applets (i) are created for Ingage Software and (ii) incorporate Your Content and Software elements. We will deliver Applets we build or modify to you via the Software.
b) Use of Your Content. If we build or modify Applets incorporating Your Content, You will deliver Your Content to us according to the schedule and in the formats set forth in the applicable SOW. You (i) grant us a non-exclusive, non-transferable, worldwide license during the term of such SOW to use Your Content to fulfill our obligations thereunder and (ii) represent that you have all rights required to provide Your Content to us. You retain all other right, title and interest in Your Content, including all Intellectual Property Rights.
c) Consumer Applications. As of the date the Agreement was last modified, Applets may only be converted into Consumer Applications by us pursuant to an SOW.
d) Compatibility. Applets we build or modify will be compatible with the Software. Consumer Applications will be compatible with the then-current version of the operating system(s) designated in the SOW as of the date the Consumer Application is delivered to you.
e) Distribution Agreements. ALL CONSUMER APPLICATIONS WILL BE DISTRIBUTED VIA YOUR ACCOUNTS WITH OS PROVIDERS. WE HAVE NO CONTROL OVER, AND ARE NOT RESPONSIBLE FOR, ACCEPTANCE OF CONSUMER APPLICATIONS BY OS PROVIDERS, AND WE DO NOT WARRANT THAT ANY CONSUMER APPLICATION WILL BE APPROVED FOR DISTRIBUTION. You will obtain all necessary approvals for distribution of Consumer Applications. Notwithstanding the foregoing, we will comply with all published API specifications and other technical guidelines for Consumer Applications made available by the applicable OS Provider.
f) Attribution. Where we build or modify an Applet or Consumer Application, we may place a “Powered by Ingage” legend on the load screen of such Applet or Consumer Application.
We will perform technical quality and assurance testing of any Applet or Consumer Application we build or modify, and any other item that we deliver to you for which Specifications are provided in the applicable SOW (each, an “Acceptance Item”) prior to providing it to you for review (the “Delivery”). Unless otherwise set forth in a SOW, you will have fifteen (15) days from Delivery (the “Acceptance Period”) to determine whether the Acceptance Item substantially conforms to its Specifications. If the Acceptance Item does not do so, you will provide us with a written notice including sufficient detail to allow us to reproduce the non-conformities (a “Rejection Notice”). We will promptly correct such non-conformities and re-submit the Acceptance Item to you as set forth in this Section 3. You will be deemed to have accepted the Acceptance Item if (a) we do not receive a Rejection Notice by the end of the Acceptance Period, or (b) you take steps to distribute the Acceptance Item to its intended end users.
4) ADDITIONAL WARRANTY
Acceptance Items will conform to their Specifications for a period of thirty (30) days after acceptance. Our sole obligation and Your entire remedy for a failure to comply with this warranty is for Us to promptly correct such Acceptance Item so that it conforms to the Specifications at no cost to You.
You will inform us in writing of any change you want to make to a SOW (each, a “Change Request”). The Parties will cooperate in good faith to assess each Change Request, and we will notify you whether we accept or reject the Change Request within ten (10) days of its receipt. Failure to provide notice within such time will be deemed rejection of the Change Request. If the Parties agree to a change, we will provide you with a written description of the required revisions to the applicable SOW, including estimated Charges and schedules (the “Change Order”). The Change Order will be effective and incorporated into the SOW upon execution.
© 2010-19 Ingage. All Rights Reserved. Ingage and the Scrollmotion Enterprise Platform are registered trademarks of Scrollmotion, Inc.