THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S USE OF PICA9’S CAMPAIGNDRIVE SOFTWARE. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY ACCEPTING THIS AGREEMENT BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on June 30, 2020. It is effective between Customer and Pica9 as of the date of Customer’s accepting this Agreement.
ARTICLE I: DEFINITIONS
1.1 “Affiliates” means entities (i) under the majority ownership or control of, under common majority ownership or control with, or which own or control, a Party, and (ii) partnerships and joint ventures in which a Party or an entity under clause (i) above is a partner or a principal.
1.2 “Administrators” means users who have registered with the system at http://www.campaigndrive.com and who are entitled to use any administrative area of the system. An administrative area of the system includes, but is not limited to, document approval, template composition, integrated vendor administration, and configuration settings.
1.3 “CampaignDrive” means the software as a service described at http://www.campaigndrive.com and updated from time to time, including affiliated JumpStart implementation and training services.
1.4 “Integration” means the connection of Campaign Drive to a third-party or Customer application. An Integration usually entails the communication between CampaignDrive and an external system via a standard protocol whereby data is exchanged, such as an API.
1.5 “Modifications and Enhancements” means any updates to CampaignDrive made by Pica9 on a periodic basis intended to improve the system. These can be bug fixes, user interface improvements, technology upgrades, or feature enhancements. All Modifications and Enhancements become part of a Standard Feature Release.
1.6 “Standard Feature Release” means a regular release of new software for CampaignDrive. A Standard Feature Release is accompanied by release notes that explain the purpose of each change and its impact, if any, on other aspects of CampaignDrive.
1.7 “Users” means any person who has registered to use CampaignDrive provisioned for Customer at http://www.campaigndrive.com. This includes both Administrators and any other users registered to use CampaignDrive.
ARTICLE II: SERVICES SCHEDULES
2.1 Services Schedules. Each Services Schedule, together with the terms of this Agreement, is a separate contract that will be effective as of the date signed by authorized representatives of Pica9 and Customer. If any term of a Services Schedule conflicts with the terms of this Master Services Agreement, the terms of the Services Schedule will govern.
ARTICLE III: SUBSCRIPTION SERVICE
3.1 Subscription Service. Pica9 grants to Customer and its Affiliates a non-exclusive and non- transferable right to access and use CampaignDrive for the term set forth in the Services Schedule.
3.2 Ownership. Pica9 retains all right, title and interest in CampaignDrive, including all Modifications and Enhancements. No rights in the CampaignDrive are granted to Customer other than those set forth in this Agreement.
3.3 Standard Feature Releases. From time to time, Pica9 will release Modifications and Enhancements of CampaignDrive. Each release will be accompanied by a release note describing the Modifications and Enhancements provided within the release. In cases where a Modification or Enhancement requires configuration of Customer’s instance of CampaignDrive, Pica9 will offer appropriate guidance, at no additional charge, to help ensure proper use of the Modification or Enhancement.
ARTICLE IV: SERVICES
4.1 JumpStart Implementation and Training. At the initiation of the onboarding process, Pica9 will provide implementation and training program (JumpStart). The details of this service and fees associated will be part of a Services Schedule attached hereto.
4.2 Template Composition and Content Management. From time to time, Customer may request that Pica9 assist in: (1) design and installation of templates or (2) input and formatting of creative content (headlines, copy, images, etc.). Pica9 will provide such services on a time and materials basis, at rates specified in Pica9’s then-current services rates as agreed in a separate Services Schedule.
4.3 System Integration. From time to time, Customer may request that Pica9 create an Integration of CampaignDrive with an external system or data source. For the purposes of this Agreement, each such Integration shall be defined in a separate Services Schedule to this Agreement and any such services shall be subject to a fee outlined in such Services Schedule. Pica9 has no ownership rights in and to the Integration.
4.4 Expedited Feature Releases. From time to time, Customer may request that Pica9 develop a specific Modification or Enhancement for CampaignDrive. Pica9 may, at its discretion, elect to implement said Modification or Enhancement as part of a Standard Feature Release. The timing of any such Standard Feature Release is at the sole discretion of Pica9, unless Customer and Pica9 negotiate an expedited development schedule under a separate Services Schedule to this Agreement. As indicated in Article II, Pica9 retains all right, title and ownership in all Modifications and Enhancements, whether requested by Customer or not, and whether developed as an Expedited Feature Release or not.
4.5 Other Services. From time to time, Customer may wish to engage Pica9 to provide other services to support the use of CampaignDrive. Any such other services shall be governed by a separate Services Schedule and priced based on the Pica9’s then-current rates.
ARTICLE V: PAYMENT
5.1 Invoices. Pica9 shall submit invoices, in U.S. Dollars, to Customer, according to Services Schedules attached hereto. Customer shall be responsible for all taxes in connection with its purchases hereunder.
5.2 Terms of Payment. In consideration of for the services provided hereunder, Customer agrees to pay in U.S. Dollars invoices submitted by Pica9 within thirty (30) days after receipt thereof. Invoices will be submitted to Customer in advance of subscription services. If such invoices remain unpaid forty-five (45) days after receipt, they shall thereafter bear interest at the “Late Payment Rate,” which shall be equal to the lower of (i) 0.50% per month, or (ii) the highest rate permitted by applicable law. Invoices that remain unpaid sixty (60) days after receipt may result in suspension of CampaignDrive.
5.3 Disputed Amounts. If any amount is the subject of a dispute between Pica9 and Customer, and such dispute cannot be resolved promptly, Customer shall pay the amounts due under the invoice, less the disputed amount, and shall advise Pica9 in reasonable detail of the reason for the dispute. Customer agrees that services provided in connection with any disputed amount may be interrupted until payment is resolved. If Customer paid an amount that was not due under this Agreement, Pica9 shall refund such amount within 30 days after receipt of notice thereof from Customer. If any portion of such amount is in dispute, Pica9 shall refund the amounts not in dispute and shall notify Customer in reasonable detail of the reason for the dispute.
ARTICLE VI: OWNERSHIP
6.1 Customer Materials. All information and materials of Customer that Customer developed or acquired, including materials acquired prior to or independently of this Agreement and derivative works thereof even if developed as part of this Agreement (the “Customer Materials”), are and shall remain the exclusive property of Customer or its licencors. Pica9, its personnel, and its subcontractors may use the Customer Materials solely to perform the services. All Customer Materials shall be subject to the confidentiality provisions of this Agreement. Any additional terms and conditions shall be mutually agreed in writing by the Parties.
6.2 Pica9 Materials. All information and materials of Pica9 that Pica9 developed or acquired, including, but not limited to, materials developed prior to, during or independently of this Agreement and derivative works thereof, even if created as part of this Agreement (the “Pica9 Materials”), are and shall remain the exclusive property of Pica9 or its licensors, including derivative works of the foregoing created as part of the services. All Pica9 Materials provided to Customer shall be subject to the confidentiality provisions of this Agreement.
ARTICLE VII: CONFIDENTIALITY; USE OF INFORMATION
7.1 Confidentiality. “Confidential Information” shall mean any non-public information of the other Party and its Affiliates that is designated as confidential, or that the receiving Party knew or reasonably should have known was confidential. Without limiting the generality of the foregoing, the terms and conditions of this Agreement shall be considered Customer and Pica9 Confidential Information. Confidential Information shall not include any information which: (a) a Party can demonstrate was rightfully in its possession prior to the date of disclosure to it by the other Party; (b) at the time of disclosure or later, is published or becomes part of the public domain through no act or failure to act on the part of a Party; (c) a Party has developed independently without reference to any Confidential Information of the other Party; or (d) a Party can demonstrate came into its possession
from a third-party who had a bona fide right to make such information available. The Party receiving or being in possession of Confidential Information will not at any time disclose to any person or use for its own benefit or the benefit of anyone else, Confidential Information of the other Party without the prior written consent of said Party. Each Party shall limit disclosure of Confidential Information to its employees or agents who have a need to know related to the Parties’ business relationship. Upon termination of this Agreement, the recipient of Confidential Information shall promptly deliver to the other Party any and all Confidential Information in its possession or under its control, any copies made thereof which the recipient of the Confidential Information may have made, except as the Parties by prior express written permission have agreed to retain. Neither Party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government; provided that, if available, five days’ notice first be given to the other Party so a protective order, if appropriate, may be sought by such Party.
7.2 Security. Each Party shall implement reasonable, current security measures to prevent unauthorized access to the other’s Confidential Information under that Party’s control. Such measures shall in no event be less stringent than those used to safeguard the recipient Party’s own Confidential Information of a like nature.
ARTICLE VIII: MUTUAL INDEMNIFICATION
8.1 Customer will defend Pica9, at Customer’s expense, against any third-party claim, suit, action, or proceeding brought against Pica9 and its officers, directors, employees, agents, service providers, licensors, and Affiliates (the “Pica9 Indemnitees”) to the extent that such action is based upon or arises out of (a) unauthorized or illegal use of CampaignDrive by Customer or (b) any Customer Materials are alleged to infringe or misappropriate a third party’s patent, copyright, trademark or trade secret rights (a “Customer Indemnified Claim”). Further, Customer will indemnify and hold harmless the Pica9 Indemnitees from and against any damages, losses or liabilities actually awarded or settled in connection with a Customer Indemnified Claim.
8.2 Pica9 will defend Customer, at Pica9’s expense, against any third-party claims, suit, action, or proceeding brought against Customer and its officers, directors, employees, agents, service providers, licensors, and Affiliates (“Customer Indemnitees”) to the extent that such action is based upon or arises out of the alleged infringement or misappropriation by CampaignDrive of a third party’s patent, copyright, trademark or trade secret rights(a “Pica9 Indemnified Claim”). Further, Pica9 will indemnify and hold harmless the Customer Indemnitees from and against any damages, losses or liabilities actually awarded or settled in connection with a Pica9 Indemnified Claim.
8.3 The indemnified party will: notify the indemnifying party in writing within thirty (30) days of becoming aware of any such claim; give the indemnifying party sole control of the defense or settlement of such a claim; and provide the indemnifying party with any and all information and assistance reasonably requested by the indemnifying party to handle the defense or settlement of the claim. The indemnifying party shall not accept any settlement that imposes an obligation on the indemnified party or imposes liability not covered by these indemnifications without the indemnified party’s prior written consent.
ARTICLE IX: WARRANTIES; DISCLAIMER; LIMITATIONS OF LIABILITY
9.1 Pica9 Warranty. Pica9 warrants that (i) Pica9 will perform its responsibilities under this Agreement in a professional and workmanlike manner, consistent with generally accepted industry practices and procedures; and (ii) Pica9 will maintain sufficient hardware and network capacity to maintain adequate performance of CampaignDrive.
9.2 Customer Warranty. Customer warrants that the content, images, templates, layouts, designs, and typefaces (and combinations of such elements) (collectively, “Images”) uploaded into or designed/assembled on CampaignDrive by Customer does not violate a third party's intellectual property rights. Customer further agrees that Pica9 may remove any such Images that are determined, alleged or reasonably believed to be in violation of a third party's intellectual property rights. Customer further warrants that its Users are responsible for securely managing password(s) for CampaignDrive and agrees to contact Pica9 if Customer becomes aware of any unauthorized access.
9.3 Disclaimer of Warranties. Pica9 makes no representations or warranties about the suitability, reliability, availability, timeliness, security or accuracy of the subscription service, data made available from the subscription service, Pica9 Materials, or any services for any purpose. Application programming interfaces may not be available at all times. To the extent permitted by law, CampaignDrive, Pica9 Materials and consulting services are provided "as is" without warranty or condition of any kind. Pica9 disclaims all warranties and conditions of any kind, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.
9.4 No Indirect Damages. To the extent permitted by law, in no event shall either Party be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities.
9.5 Limitation of Liability. Except for Customer liability for payment of fees, either Party’s liability arising from its indemnity obligations, and either Party’s liability for violation of intellectual property rights, if, notwithstanding the other terms of this Agreement, either Party is determined to have any liability to the other Party or any third party, the Parties agree that the aggregate liability of a Party will be limited to the total amounts Customer has actually paid in the twelve month period preceding the event giving rise to a claim.
9.6 Third Party Products. Pica9 disclaims all liability with respect to third-party products used by Customer in connection with CampaignDrive. Pica9 licensors shall have no liability of any kind under this Agreement.
9.7 Minimum Customer Third Party Software. Customer agrees that all its Users are required to use current versions of supported browsers (Chrome, FireFox, and Internet Explorer). Pica9 will only support older versions of supported browsers for 12 months after they have been superseded by the subsequent versions.
ARTICLE X: TERM AND TERMINATION
10.1 Term. This Agreement is effective as of the Effective Date and will remain in effect for the period stated on the associated Services Schedule, Order Form, or Statement of Work. If not stated on a Services Schedule, this Agreement will remain in effect for a period of three (3) years after Effective Date. If not terminated or extended in a separate Services Schedule, this Agreement will automatically renew for three (3) years, unless Customer or Pica9 provides written notice at least 60 days before the termination date that this Agreement shall not renew.
10.2 Termination for Cause. Either Party may terminate this Agreement on thirty (30) days’ prior written notice if the other Party (i) has committed a material breach of this Agreement and has failed to cure such material breach within such thirty-day notice period, or (ii) should become insolvent, file a voluntary petition in bankruptcy, be adjudicated a bankrupt, have a receiver appointed for the operation of its business, or make a material liquidation of assets. The termination right under clause (i) above may also be exercised with respect to any Services Schedule to which such material breach relates.
10.3 Effect of Termination. Upon termination for any reason, each Party shall immediately return to the other any property belonging to the other that is in its possession, subject to any rights in such property that may exist under this Agreement. Upon request, Pica9 agrees to provide Customer data to Customer within 60 days at cost to Customer based on Pica9’s then current rates. Customer data to be provided in the following format: generated documents in PDF; content data in CSV; and Images in a series of zip files. Pica9 is not responsible for Customer data after more than 90 days from termination of the Agreement.
ARTICLE XI: GENERAL
11.1 Assignment. Neither Party shall assign this Agreement without the other Party’s prior written consent (not to be unreasonably withheld): provided, however, either Party may assign this Agreement in its entirety (together with all Services Schedules) without the other Party’s consent to its Affiliate or in connection with a change of control, corporate reorganization, merger, acquisition, or sale of all or substantially all of such Party’s assets or business. Subject to the foregoing, this Agreement is binding upon the parties’ respective representatives, successors, and permitted assigns.
11.2 Publicity. From time to time, and subject to the confidentiality provisions of this Agreement, Pica9 may publish information regarding Customer’s use of CampaignDrive, as part of Pica9’s training and/or marketing programs. Pica9 will provide Customer with such materials for review and approval upon request, such approval not to be unreasonably withheld.
11.3 Applicable Law. This Agreement, the interpretation hereof, and any disputes arising hereunder, shall be governed by the laws of the State of Delaware, without regard to its choice of law rules. In addition, the Parties consent to the exclusive jurisdiction of the state or Federal courts located in the State of Delaware.
11.4 Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
11.5 Notices. Any notice required to be given to a party under this Agreement shall be given by personal delivery to such party, or mailed by registered or certified mail, return receipt requested, postage prepaid, or shipped by a nationally-recognized overnight carrier, shipping prepaid, to such party at such party’s address set forth at the top of this Agreement.
11.6 Entire Agreement. This Agreement, its schedules constitute the entire, final and exclusive understanding of the Parties, and shall not be amended or modified except by written instrument that has been duly executed by the signature of an authorized representative of each of the Parties. This Agreement may not be amended or modified by conduct manifesting assent, or by electronic signature, and each Party is hereby put on notice that any individual purporting to amend or modify this Agreement by conduct manifesting assent or by electronic signature is not authorized to do so. Any and all previous agreements and understandings between the Parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.