Mattermark Subscription Agreement
Last Updated July 7, 2013.
This Mattermark Subscription Agreement (the Agreement) includes the terms and definitions set out below. This Agreement is not effective until accepted by Referly Inc. DBA Mattermark.
Referly Inc. DBA Mattermark (Mattermark), a Delaware corporation, is the owner of technology which aggregates data across multiple sources and creates a data file (the Data Service) which Mattermark makes available to its customers (each a Subscriber) for such Subscriber's internal business purposes. Subscriber and Mattermark are herein referred to individually as a Party and collectively as the Parties.
Access to Mattermark is subject to Subscriber's payment of the subscription fee for the Data Service and subscription terms as provided by Mattermark and selected by Subscriber when subscribing on Mattermark's website (the Subscription). The Subscription, incorporated in this Agreement, is subject to change and all subscription fees are non-cancelable and non-refundable, except as otherwise expressly set forth herein.
Subject to the terms and conditions of this Agreement, Mattermark hereby grants to Subscriber a limited, nonexclusive, royalty-free, non-transferable right to a one (1) user seat license to use the Data Service solely for its internal business purposes. Subscriber shall not (i) provide access to the Data Service to unauthorized third parties, (ii) publicly publish, copy (except for internal use), duplicate or replicate the Data Service, (iii) scrape any data, content or intellectual property, or otherwise trespass or interfere with Mattermark's Data Service or systems; or (iv) sublicense, distribute or transfer the Data Service or underlying data except as otherwise expressly permitted herein.
Availability of the Data Service
Mattermark shall use commercially reasonable efforts to provide the Data Service to Subscribers at the regular intervals as set forth in the Subscription. However, there will be occasions when the Data Service will be interrupted for maintenance, upgrades and repairs, or as a result of failure of telecommunications links and equipment that are beyond Mattermark's control. Mattermark shall take reasonable steps to minimize such disruption, to the extent it is within Mattermark's reasonable control. Under no circumstances shall Mattermark be liable to Subscriber for any interruptions, outages, or other system failures that are beyond Mattermark's control.
Subscriber acknowledges and agrees that Mattermark obtains the data for the Data Service from third parties, and that such sources may become temporarily or permanently unavailable. If such unavailability materially affects Mattermark's ability to provide the Data Service in whole or in part for more than ten consecutive days, Subscriber shall be entitled to terminate this Agreement upon written notice to Mattermark and receive a pro rata refund of the last subscription fee paid.
Mattermark or its licensor(s) shall retain all rights, title and interest in and to The Data Service and any data, files, or other information provided or used by Mattermark in the provision of the Data Service. Neither Party shall have any right to use the other Party's trademarks, logos, service marks or other indicia of origin, except as otherwise provided in this Agreement. No rights other than those expressly recited herein are to be implied from this Agreement.
FEES AND PAYMENT TERMS
Fees. In consideration for the license granted by Mattermark, Subscriber agrees to pay to Mattermark the subscription fee selected by Subscriber on Mattermark's website or separate written order form, as applicable, in accordance with the Subscription.
Payment Terms. The payments to Mattermark shall be made as set forth in the Subscription. Subscriber shall be responsible for and pay all sales tax, use taxes or other taxes or charges of any kind imposed by any federal, state or local government entity for any financial transactions arising out of this Agreement. All undisputed overdue amounts shall bear interest at the rate of 10% per annum or the maximum legal rate, if less. Mattermark shall be entitled to its cost of collection, including reasonable attorney's fees in connection with its attempts to collect any amounts owed under this Agreement.
Definition. Confidential Information shall mean and include all of the confidential and proprietary information and all other information, not in the public domain, that relates to the Data Service. All information disclosed or revealed by a Party hereunder orally, electronically, in writing or in any other tangible form, shall be deemed to be Confidential Information if (i) it has been marked confidential; (ii) the other Party has been placed on notice, orally or in writing, of its confidential nature; or (iii) due to its character or nature, a reasonable person under similar circumstances would treat such information as confidential.
Protection of Confidential Information. The receiving Party will protect the disclosing Party's Confidential Information from unauthorized dissemination and use with the same degree of care that such receiving Party uses to protect its own non-public and confidential information, but in no event less than a commercially reasonable degree of care. The receiving Party will not use the disclosing Party's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. The receiving Party will not disclose to third parties the disclosing Party's Confidential Information without prior written consent of the disclosing Party.
Non-Confidential Information. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving Party can document that such information (i) is or becomes generally known or available to the public through no fault of the receiving Party, (ii) was in the receiving Party's possession before receipt from the disclosing Party under this Agreement or any prior agreement or understanding between or among the Parties, or (iii) is lawfully obtained from a third party who has the right to make such disclosure.
Disclosure of Confidential Information. These provisions shall not prevent the receiving Party from disclosing Confidential Information where it is required to do so by law or by a binding court order save that, to the extent legally permissible, it shall notify the disclosing Party of such disclosure and allow the disclosing Party a reasonable opportunity to object to such disclosure.
WARRANTIES and LIMITATION OF LIABILITY
Warranties. Each Party represents and warrants to the other Party that (i) it has the legal right and power to enter into this Agreement; (ii) the performance of such obligations will not violate or conflict with any agreements, contracts or other arrangements to which it is a party; and (iii) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained.
Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE DATA SERVICE IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS FROM MATTERMARK. ANY INFORMATION OBTAINED THROUGH THE USE OF THE DATA SERVICE IS DONE AT SUBSCRIBER'S OWN RISK AND SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR DAMAGE TO SUBSCRIBER'S COMPUTER SYSTEM, NETWORK, DATA OR BUSINESS THAT RESULTS FROM SUCH ACTIVITY.
No Warranties Regarding Data Service. MATTERMARK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH REGARDS TO THE INFORMATION PROVIDED THROUGH THE DATA SERVICE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, MATTERMARK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGMENT. SUBSCRIBER ASSUMES THE ENTIRE RISK OF SELECTION AND USE OF INFORMATION PROVIDED THROUGH THE DATA SERVICE. WITHOUT LIMITING THE FOREGOING, MATTERMARK MAKES NO WARRANTY THAT (i) THE INFORMATION OFFERED THROUGH THE DATA SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS; (ii) THE DATA SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, COMPLETE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DATA SERVICE WILL BE ACCURATE OR RELIABLE.
No Warranty Regarding Advice or Information. NO ADVICE OR INFORMATION OBTAINED BY SUBSCRIBER FROM MATTERMARK SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL A PARTY'S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNT OF FEES PAID TO MATTERMARK UNDER THIS AGREEMENT BY THIS SUBSCRIBER.
TERM and TERMINATION
Term. Provided that Subscriber has fulfilled its obligations hereunder, including making all payments and updates, this Agreement shall commence as of the date on which Mattermark accepts this Agreement (the Effective Date), continue until the agreed upon termination date and automatically renew in accordance with the Subscription, unless otherwise terminated in accordance with this Section.
Termination for Cause. Either Party shall have the right to immediately terminate this Agreement (i) if the other materially breaches this Agreement and the breach remains uncured for a period of 14 days after the breaching Party receives written notification of the breach; or (ii) in the event the other becomes bankrupt, insolvent, dissolves, assigns its business for the benefit of creditors or otherwise terminates its business activities, or if any receiver, trustee or similar officer is appointed to take charge of such Party's business or properties.
Effect of Termination. The terms of this Agreement will survive termination for as long as necessary to permit their full discharge, excluding the License Grants which will terminate immediately. Upon the termination of this Agreement for any reason, (i) Subscriber shall immediately cease use of the Data Service; (ii) each Party shall, as promptly as is reasonably possible, return all Confidential Information of the other Party in its possession or control, including any copies thereof; and (iii) all rights and obligations of the Parties under this Agreement shall cease; provided, however, that termination of this Agreement shall not relieve the Parties of any obligations that accrued prior to the effective date of termination.
Good Faith Negotiation. Any matters arising in connection with this Agreement which are not expressly addressed herein, and all disputes, controversies, or claims which may arise between the Parties relating to or in connection with the performance of this Agreement or any breach thereof, shall be separately negotiated by the Parties in good faith and all reasonable efforts undertaken to settle amicably such matters before resorting to further legal recourse.
Dispute Resolution Procedure. Upon the occurrence of a dispute between the Parties, including, without limitation, any breach of this Agreement or any obligation relating thereto, the matter shall be referred to the chief executive officers of each Party, or their designees. The chief executive officers, or their designees, as the case may be, shall negotiate in good faith to resolve such dispute in a mutually satisfactory manner for up to 30 additional days, or such longer period of time to which the chief executive officers or their designees may agree. In the event that good faith negotiation fails to resolve the matter, such matter shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration panel shall consist of one disinterested third party appointed by the American Arbitration Association and agreed to by Mattermark. The forum to conduct the arbitrations will be in San Francisco County, California. The judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The award of the arbitrator shall be final, non-appealable and binding upon the Parties hereto and their respective successors and permitted assigns.
By Subscriber. Subscriber will, at its expense, defend, indemnify and hold Mattermark harmless from and against any damage, liability, cost or expense (including reasonable attorneys' fees and court costs) arising out of or resulting from any claim, suit or other proceeding (each a Claim and, collectively, the Claims) arising in any way from Subscriber's use of the Data Service or breach of this Agreement.
Indemnification Procedure. In the event of any Claim in respect of which Mattermark intends to claim indemnification, Mattermark will: (i) promptly notify Subscriber, in writing, of the claim, suit or proceeding; (ii) grant Subscriber the authority and control of the defense or settlement of such Claim; and (iii) provide Subscriber with all requested reasonable information and assistance, at Subscriber's expense, to defend or settle such Claim. Mattermark reserves the right to retain counsel, at its own expense, to participate in the defense and settlement of such Claim.
Governing Law and Venue. This Agreement will be governed and construed solely in accordance with the laws of the State of California without giving effect to principles of conflict of laws. Both Parties agree to submit to exclusive jurisdiction in California and further agree that any cause of action arising under this Agreement shall be brought solely in a court in San Francisco County, California.
Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either Party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
Captions. Titles or captions of articles and paragraphs contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof.
Assignment. Neither this Agreement nor any of the rights or obligations of a Party arising under this Agreement may be assigned or transferred without the prior written consent of the other Party, which consent shall not be unreasonably conditioned, delayed or withheld; provided that Mattermark may assign this Agreement in whole, but not in part, in connection with a merger, consolidation, reorganization or the sale of all or substantially all its assets or stock or that of its parent company.
Independent Contractors. The Parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither Party shall have the power to obligate or bind the other Party.
Notice. Any notice required or permitted under this Agreement or required by law must be in writing and must be (i) delivered in person; (ii) sent by first class registered mail, or air mail, as appropriate; or (iii) sent by a reputable overnight courier, in each case properly posted and fully prepaid to such other address of such Party as may be designated in writing. Notices shall be considered to have been given at the time of actual delivery.
Force Majeure. Mattermark shall not be liable for any failure to perform under this Agreement, including, without limitation providing access to the Data Service, caused by any events beyond its, or its data providers, reasonable control including, without limitation, acts of war, disasters, acts of God, terrorism, labor interruption, interruption of communications or utlilities or disease.
Entire Agreement. This Agreement, together with any separate written order form, (if applicable), sets forth the entire understanding and agreement of the Parties and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both Parties. Neither Party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.