Master Subscription Agreement
BY ACCEPTING THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) EITHER BY (1) EXECUTING AN ORDER FORM, STATEMENT OF WORK OR ANY OTHER DOCUMENT FOR ORDER OF SITEIMPROVE’S SERVICES (“SERVICE ORDER”) THAT REFERENCES THIS AGREEMENT, (2) ACCESSING OR USING A SITEIMPROVE SERVICE (“SERVICES”), (3) PAYING THE FEES SPECIFIED IN AN CUSTOMER ORDER, OR (4) OTHERWISE MAKING USE OF THE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS MASTER SUBSCRIPTION 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.
The purpose of this Agreement is to establish the terms and conditions under which Customer may order and purchase Siteimprove’s Services as described in a Service Order agreed to or accepted by Customer. Capitalized terms not otherwise defined in this Agreement will have the meaning set forth in the Service Order.
In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Service Order, the terms of the Service Order shall take precedence.
Non-English variations of this Agreement are provided for convenience only. In the event of any ambiguity or conflict, the English version prevails.
Any Service Order to Customer which contracts with Siteimprove Gmbh (Munich), or Siteimprove GmbH (Vienna), is subject to the terms of Rahmen-Abonnement-Vertrag.
a. Services. Siteimprove will make the Services available pursuant to this Agreement and the Service Order(s). The Services are available at: http://my.siteimprove.com.
b. Technical Support. Technical Support will be provided in accordance with the success plan included in Customer’s Service Order(s). Technical Support is available at Siteimprove’s Help Center, through which Customer can submit a support ticket at any time. Additionally, Customer may contact Siteimprove for product support, training, and additional services.
c. Professional Services. Any Professional Services, including any training, services provided in Customer’s success plan, and implementation services, will be subject to the quantities and limitations set out in Customer’s Service Order and the terms and conditions of the Professional Services Agreement, available at: https://www.siteimprove.com/legal/professional-services-agreement/.
d. Affiliates. Customer subsidiaries and group-affiliated companies, meaning any entity directly or indirectly controlling or controlled by, or in common control with Customer, where “control” is defined in this context as the ownership of at least fifty percent (50%) or more of the voting stock or other interest entitled to vote on general decisions reserved to stockholders, partners, or other owners of such entity, (“Affiliate”) shall have the right to execute a Service Order(s) or issue a purchase order(s) in their own name and account under the terms of this Agreement. Such Affiliate will be granted all rights under the terms and conditions of this Agreement as if the Affiliate was party to this Agreement. For the avoidance of doubt, whenever in this Agreement a reference is made to Customer, the reference shall be interpreted to mean Customer or its Affiliate, depending on who has executed the Service Order or issued the purchase order.
a. Right to Use. Siteimprove grants the Customer a right to use the Services on a worldwide, revocable, non-exclusive, non-perpetual and non-transferable basis. This right includes updates and new releases of the Services, but not new modules/services/products added to the Services. The Customer must be the owner or authorized administrator of the website(s) on which the Services are run. The Customer may use the Services on a third party’s website(s) if the Customer is the official supplier for that third party and it has been explicitly agreed with Siteimprove. If agreed that the Included Services may be used on a third party’s website, the Customer may create users on behalf of that third party. Notwithstanding the aforementioned, the same terms and conditions apply when using the Included Services on a third party’s website as on the Customers own website(s). The Customer has no right to retain or to use the Services after termination of this Agreement.
b. Limitations of Use. The Customer’s use of the Services is subject to the agreed quantities and limitations as specified in a Service Order (the “Limits”). If the Customer exceeds the Limits, Siteimprove will notify the Customer of such excess use and discuss appropriate upgrades. Customer may not: (i) rent, lease, assign, transfer, sublicense, display or otherwise distribute or make the Services available to any third party; (ii) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part the Services; (iii) remove or alter any trademark, logo, copyright or other proprietary notices, symbols, or labels in the Services; or (iv) use the Services for any illegal purpose.
c. For Non-Public Website Use. Any use of the Services on customer intranet, log-in-protected websites, staging websites, development website, or any other form of non-public websites (“Non-Public Websites”) is subject to the obligations set out in this Section 3(c). For Siteimprove to allow that the Services are used on a Non-Public Website, Customer must ensure that there is an encrypted line for the secure transport of data between such Non-Public Website and Siteimprove. Customer must ensure that, to the extent necessary, or required by applicable laws, it has an appropriate legal basis for the processing of personal data for the purpose of the Services, and that it has the right to disclose any confidential information on the Non-Public Website. Except when expressly agreed, Customer represents and warrants that the information on the Non-Public Website is not subject to heightened regulations (e.g., HIPAA, or FERPA). Additionally, Customer must assign an account with non-administrative rights to the Non-Public Website when using the Services on any website behind log-in protection. In the event of any failure by Customer to adhere to the obligations set out in this section, Siteimprove may reject to perform the Services on the Non-Public Website. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT SITEIMPROVE AND ITS AFFILIATES, DIRECTORS AND EMPLOYEES SHALL NOT BE LIABLE TO CUSTOMER UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SPECIAL DAMAGES ARISING OUT OF OR DUE TO CUSTOMER’S USE OF THE SERVICES IF SUCH USE IS IN BREACH OF CUSTOMER’S OBLIGATIONS IN THIS SECTION.
d. No Competitive Access. A direct competitor of Siteimprove may not access the Services except with Siteimprove’s express prior written consent. Customer may not facilitate access to the Services to a direct competitor of Siteimprove except with Siteimprove’s express prior written consent.
e. Region-Specific Supplemental Terms. The provision and use of the Services in certain jurisdictions are subject to Siteimprove’s Region-Specific Terms, available at: https://www.siteimprove.com/legal/regional-specific-terms/.
a. Term. This Agreement will remain in effect for the Subscription Term and the Renewal Term(s) specified on the Service Order. Unless agreed otherwise in a Service Order, the Services will renew for additional Renewal Terms until terminated pursuant to this Section 3.
b. Cancellation. Either party may terminate this Agreement or any Service Order as of the end of Customer’s then-current Subscription Term by providing ninety (90) days written notice prior to the end of such Subscription Term.
c. Termination for breach. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect in the event of a material breach by the other party. Material breach shall include: (i) any violation of the terms of Section 2, 4(a)-(b), 5, 6, 8, and 11(d)-(f), (ii) any other breach that a party has failed to cure within fourteen (14) calendar days after receipt of written notice by the other party; (iii) an act of gross negligence or willful misconduct of a party; and (iv) the insolvency, liquidation or bankruptcy of a party.
d. Reimbursement. Except for Customer’s termination rights under Section 3(c), Customer remains liable for payment of all amounts owed for the current Subscription Term and will not be entitled to a credit or refund.
a. Payment. All charges are due in accordance with the invoice date and payment terms specified in the applicable Service Order. The Subscription Fee during any Renewal Term will be increased by the Renewal Price Increase percentage specified on the Service Order. Customer must provide valid and current payment information and must promptly provide Siteimprove with any update hereto (e.g., a change to Bill To, or Ship To Address, payment information, or purchase order information) by submitting an Address Change Form provided by Siteimprove or available for download on Siteimprove’s website (https://www.siteimprove.com/legal/address-change-form/). If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.
b. Failure to pay. Late payments may bear interest at the rate of 1% per month (or the highest rate permitted by law, whichever is lowest) from the payment due date until paid in full. Additionally, if an invoice becomes overdue, Siteimprove reserves the right to suspend the provision of the Services until payment has been made.
c. Taxes. Unless otherwise stated in this Agreement, or the Service Order, no Fees on the Service Order include any taxes. Customer is responsible for any applicable taxes, which will be determined based on the laws and regulations of the taxing authority(ies) governing the Ship To Address provided by the Customer on a Service Order, unless Customer provides Siteimprove with a timely and valid tax exemption certificate.
d. Payment Portals. If Customer mandates Siteimprove use a vendor payment portal or any other portal that charges Siteimprove a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, Customer shall bear that cost. Any fees that have been invoiced to Siteimprove in relation to this will be invoiced to the customer by Siteimprove.
a. Definition. “Confidential Information” means all information disclosed by one Party (the ”Disclosing Party” to the other Party (the “Receiving Party”) which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information does not include information that: (a) was in the public domain prior or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party through no fault of Receiving Party; (b) was rightfully in Receiving Party’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party; (c) was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party; (d) was communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence; or (e) is approved by Disclosing Party for release by Receiving Party.
b. Nondisclosure Obligations. Receiving Party and its Representatives will: (i) maintain in confidence any Confidential Information; (ii) use its best endeavors to protect Confidential Information in accordance with the same degree of care with which it protects its own Confidential Information; and (iii) solely disclose Confidential Information to its employees and representatives who need access for purposes consistent with this Agreement or Service Order; and (iv) not disclose the other party’s Confidential Information to any third party, except in response to a valid order by a court or other governmental body or as required by law. The receiving party will promptly give notice to the disclosing party of any disclosure of the other party’s Confidential Information.
c. Ownership and Return of Confidential Information. All Confidential Information of Disclosing Party will remain the property of Disclosing Party. Upon written request of Disclosing Party, Recipient shall destroy or return to Disclosing Party all Confidential Information. However, Receiving Party will not be required to erase any Confidential Information of the Disclosing Party stored electronically as part of an archival back-up system maintained in the ordinary course of business. In the event of disclosure of confidential information to a third party in default of the provisions of this section 5, the defaulting party will use reasonable efforts to assist the Disclosing Party in recovering and preventing such third party from using, selling, disclosing or otherwise disposing of such confidential information. The obligations in this section 5 shall survive the termination of this Agreement and any Service Order concluded.
a. GDPR - General Data Protection Regulation. The Services are designed and developed to collect and process customers’ website content and certain operational data in relation thereto. Any personal data processed by Siteimprove when performing the Services is processed according to the Customer’s instructions and on its behalf. In this regard, Customer is deemed to be “Data Controller” and Siteimprove is “Data Processor”. Where applicable, Customer is responsible for entering into a Data Processing Agreement (“DPA”) with Siteimprove which lives up to any then-current legal standards. If the use of the Services on Non-Public Websites and/or websites that contain special categories of personal data has been agreed upon, the Customer ensures that the DPA reflects the processing of non-public and/or special categories of personal data. If Customer has not facilitated a DPA to be signed on the day that Customer begins to use the Services, the parties are deemed to have entered into Siteimprove’s standard DPA available at: https://siteimprove.com/privacy/dpa/.
b. CCPA - California Consumer Privacy Act. With respect to obligations to consumers under the California Consumer Privacy Act where applicable, Customer is a “business” and Siteimprove is a “service provider” (as such terms are defined in the CCPA) and each party will be responsible for its respective obligations under the CCPA, as applicable to the Agreement. If Customer has not facilitated a DPA to be signed on the day that Customer begins to use the Services, the Parties are deemed to have entered into Siteimprove’s standard CCPA DPA available at: https://siteimprove.com/privacy/dpa/.
c. Data Processing of Users and Customer Contacts. Other than the processing of Customer’s data under Section 6(a) and 6(b), Siteimprove collects some general usage and contact information about the users of Siteimprove’s services and other contact persons provided by Customer, such as the names and emails of the Siteimprove users, for internal necessary purposes such as customer identification, invoicing, support and sharing information about Siteimprove products to Customer. A detailed description of how Siteimprove processes Customer’s data under this section is available at: https://siteimprove.com/privacy/privacy-policy/. In this regard, Siteimprove will be the data controller under GDPR and business under CCPA and the Customer acknowledges and agrees that general customer and user information will be collected for Siteimprove’s internal use. The Customer has the right to access, correct, modify and erase any personal data provided by the Customer to Siteimprove. To exercise these rights, contact firstname.lastname@example.org.
7. IPR and data ownership
a. Ownership. Siteimprove owns and shall remain the sole owner of all intellectual property vested in the Services created prior to or during the performance by the parties of this Agreement. This ownership right includes any inventions, patents, utility model rights, copyrights, design rights, mask works, trademark rights, or knowhow, whether registered or not.
b. Customer Owned Data. All data provided to Siteimprove through the use of the Services (“Customer Data”) is and shall remain Customer property. Siteimprove does not resell any Customer Data. To enable Siteimprove to provide Customer with the Services, and subject to this Agreement, Customer hereby grants to Siteimprove a non-exclusive right to use and process Customer Data provided by Customer solely in connection with Siteimprove’s operation of the Services.
c. Aggregated Anonymous Data. Customer acknowledges and agrees that Siteimprove will have the right to obtain or generate and aggregate technical and other data about Customer’s use of the Services excluding any personally identifiable with respect to Customer (“Aggregated Anonymous Data”). Siteimprove owns Aggregated Anonymous Data and may use this to analyze, improve, support and operate the Services and otherwise for any business purpose, during and after the term of this Agreement. For clarity, this Section 7(c) does not give Siteimprove the right to identify Customer as the source of any Aggregated Anonymous Data.
d. Feedback. Siteimprove shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback received from Customer. Siteimprove also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated due to such feedback.
a. For Siteimprove. Siteimprove represents and warrants that: (i) it has the full power and authority to enter into and perform its obligations under these Terms; and (ii) the Included Services will perform substantially as described in this Agreement for the Initial Subscription Term and any Renewal Term, provided that it is used in accordance with this Agreement, including on the specified domains. These representations and warranties are only for the benefit of Customer.
b. For Customer. Customer represents and warrants that: (i) it has the full power and authority to enter into and perform its obligations under this Agreement; and (ii) it has full and legal right or authorization to display, disclose, transfer, assign or convey the information set forth and accessible on the websites on which the Services will be administered.
c. Disclaimer. Except for the express representations and warranties listed in this Agreement, each party makes no representations or warranties of any kind, whether express or implied. No oral or written information or advice given by either party will create a representation or warranty. Specifically, Siteimprove makes no representations or warranties with regard to the use of the Services for the purpose of ensuring Customer’s compliance with any laws or regulations. Neither party shall be held liable for failure or delay in performing an obligation under this Agreement to the extent such failure is due to circumstances that are beyond its reasonable control, including, but not limited to, order or measure of government, strike, blockade, natural disaster, act of war, terrorism, pandemic or internet service provider failure or delay.
a. By Customer. Customer will defend Siteimprove and its Affiliates from and against all third-party claims, lawsuits, and demands arising out of an allegation regarding (a) Customer Data, or (b) use of the Services by Customer or End Users in violation of this Agreement, and will indemnify Siteimprove and its Affiliates for all reasonable attorney’s fees incurred, damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 9(c).
b. By Siteimprove. Siteimprove will defend Customer from and against all third-party claims, lawsuits, and demands arising out of an allegation that Siteimprove’s Services infringe or misappropriates any patent, copyright, or trade secret of such third party, and will indemnify Customer for all reasonable attorney’s fees incurred, damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 9(c). In no event will Siteimprove have obligations or liability under this Section arising from: (a) use of the Services in a modified form or in combination with materials or technology not furnished by Siteimprove, and (b) any content, information, or data provided by Customer, Customer’s end users, or other third parties. For any claim covered by this Section, Siteimprove will, at its election, either (i) procure the rights to use the portion of the Services alleged to be infringing, (ii) replace the alleged infringing portion of the Services with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Services or this Agreement and provide Customer with a pro-rata refund of any pre-paid, unused Fees.
c. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Each party shall only be liable for direct damages. As such, each party shall not be liable to the other party for any indirect, special, incidental, or punitive damages caused by Customer’s use of the Services, including, but not limited to, loss of data, loss of business or any other loss arising out of or resulting from a party’s performance under this Agreement, even if it has been advised of the possibility of such damages. EXCEPT WHERE EXCLUDED BY APPLICABLE LAW, A PARTY’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEE. HOWEVER, IN NO EVENT SHALL A PARTY BE ABLE TO CLAIM A LIMITATION ON ITS LIABILITY IN THE EVENT OF; I) NON-COMPLIANCE WITH OBLIGATIONS CONCERNING PERSONAL DATA; II) ANY THIRD-PARTY IP INFRINGEMENT CLAIM, UNLESS SUCH CLAIM IS BASED ON A PARTY’S WRONGFUL OR ILLEGITIMATE USE OF THE SERVICES; OR III) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
a. Assignment. Except as otherwise expressly provided in this Agreement, neither party may assign, transfer, convey or encumber this Agreement or any rights granted in them without the prior written consent of the other party (such consent not to be unreasonably withheld). Notwithstanding the foregoing, a party shall have the right to assign this Agreement to its Affiliates or to a successor entity in the event of a merger, consolidation, transfer, stock purchase, provided the assignee is subject to all obligations under this Agreement.
b. Entire Agreement. This Agreement, together with the Service Order, Success Plan, Implementation Plan (if applicable), and any document mentioned in the Service Order, constitutes the entire agreement between the parties and supersedes any prior communications, commitments, or agreements, oral or written, with respect to the subject matter of this Agreement. Any other standard or boilerplate terms and conditions included in any document provided by one party to another (e.g., click-wrap agreements and purchase orders) are not to be considered agreed upon and will not be binding on either party. Any changes or modifications to this Agreement must be made in writing and signed by authorized representatives of both parties before taking effect.
c. Nature of Relationship. The parties agree the relationship created by this Agreement is that of an independent contractor. In performing all obligations and duties under this Agreement, the parties shall be, and at all times is, acting and performing as independent contractors, and not as a partner, co-venturer, agent, or employee of the other party, and nothing contained herein shall be construed to be inconsistent with this relationship or status, and is not granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party or to bind the other party in any manner. Except for any materials, procedures, or subject matter agreed upon between Siteimprove and Customer, Siteimprove shall have complete control over the manner and method of performing the Services. Siteimprove understands and agrees to independent contractor status. Siteimprove will be responsible for payment of all Siteimprove employee wages, payroll taxes, employee benefits, and any amounts due for federal and state income taxes and social security contributions.
d. Insurance. During the term of this Agreement and for two (2) years thereafter, each party shall at all times keep in effect appropriate insurance policies, with financially sound and reputable insurers, covering any claims for damages which the other party may be entitled to under this Agreement or as required by statutory law.
e. Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Siteimprove and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any user to access or use the Service in any capacity in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or for use in violation of any U.S. export law or regulation (e.g., nuclear, chemical, or biological weapons proliferation, or missile-development purposes).
f. Anti-Corruption and Ethical Conduct. Each party represents that it has not received, been offered, or offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of its employees, affiliates or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. The parties and their employees are obliged to desist from any practice which may lead to penal liability due to crimes in violation of competition, fraud, guaranteeing advantages, acceptance of bribery or other corruption crimes. The parties shall: (i) comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010; (ii) have in place throughout the term of the Agreement policies and procedures to ensure compliance with anti-corruption regulation; (iii) promptly report to the other party if it receives any request or demand for any undue financial or other advantage of any kind received by Customer or any of it Affiliates; (v) ensure that all third parties associated with it who are delivering services or goods in connection with this Agreement comply with this Section 11(f).
g. Notices. Notices under this Agreement shall be in writing and shall be sent as certified mail, by a nationally recognized courier (with proof of delivery receipt or acknowledgment of receipt) to the address set out in this Agreement, or by e-mail. E-mail notices to Customer will be sent to the e-mail address of the Primary Contact Person. E-mail notices to Siteimprove must be sent to email@example.com. The notice shall be deemed given on the date of receipt, or refusal of delivery, by the receiving Party.
This Agreement and any dispute in relation to the Services, or the Customer’s use hereof, will be governed by and construed in accordance with the relevant law based on where the Customer is domiciled cf. the table below and subject to the exclusive jurisdiction of the competent courts, also specified below.
|Customer domiciled in:||Governing Law||Exclusive jurisdiction|
|Customers in EEA, and Switzerland other than Germany and Austria||The country, state, or province, whichever is applicable, specified in the Ship To Address provided by Customer on the Service Order||The country, state, or province, whichever is applicable, where the Customer is specified in the Ship To Address on the Service Order|
|United Kingdom||England and Wales||London, United Kingdom|
|A country in Europe, the Middle East or Africa, other than a country in the EEA, Germany, Austria, Switzerland, and the United Kingdom||Denmark||Copenhagen, Denmark|
|Australia, and New Zealand||New South Wales, Australia||New South Wales, Australia|
|A country in Asia, or the Pacific region, other than Japan, Australia, or New Zealand||Singapore||Singapore|
|United States or a country in Central or South America, or the Caribbean||California||San Francisco, California, U.S.A.|
|Canada||Ontario||Toronto, Ontario, Canada|