Reputation.com (UK) LTD. Standard Service Agreement
This Standard Service Agreement sets forth the terms and conditions that shall govern the provision of services (“Services”) by Reputation.com (UK) Ltd. and/or its affiliates (collectively, the “Company”) to its customer (“Client”).
1. ADDITIONAL DETAILS OF PRODUCTS AND SERVICES
1.1 Service-Level Agreement. The Services will be available at least 99.5% per month. Should Services not be available, and should Client notify Company of such, the Company will extend Client’s subscription term by the period of reported outage at no cost. The right to receive an extension of the subscription term is the Client’s sole remedy for any failure to achieve the availability threshold referred to in this clause.
1.2 Collaborative Actions. Client understands that certain reputation management activities require the diligent cooperation of Client. To the extent that the Company’s ability to timely complete certain activities or obtain favorable results is attributable to a lack of timely or diligent cooperation from Client, in such case, a failure to complete activities or obtain results shall not constitute a breach of this Agreement.
2. LICENSE GRANT AND RESTRICTIONS
2.1 Proprietary Rights. All intellectual property rights in and to the Services and any user documentation related thereto are owned by Company, including, but not limited to patents, copyrights, trade secrets, and trademarks.
2.2 License Grant. Upon Company’s acceptance of Client’s order and for the duration of the Services term defined in the Service Proposal, Client shall have the nonexclusive, non-assignable (except as set forth in Section 9.6 below), royalty free, worldwide limited right to access and use the Services solely for its internal business operations and subject to the terms of the Agreement. Client may allow its employees to use the Services for this purpose and Client is responsible for its employees’ compliance with the Agreement.
2.3 License Restrictions. The licenses granted to Client in this Service Agreement do not include any right to: (a) damage, disable, or impair the Services (or the network(s) connected thereto; (b) to copy, modify, reroute, create derivative works of, derive the source code of, reverse engineer, disassemble or tamper with Services, or attempt to do any of the foregoing; (c) take any action that imposes an unreasonably or disproportionately large burden on Company’s infrastructure; (d) violate any local, state, federal or other applicable law or violate the rights of any third party (including, without limitation, rights of privacy or proprietary rights); (e) disable or circumvent any security features of the Company’s products or Services; or (f) cause or permit any third party to do any of the foregoing.
2.4 Reservation of Rights. All rights not expressly granted to Client in this Service Agreement are reserved to Company. No additional rights whatsoever (including, without limitation, any implied licenses) are granted to Client by implication, estoppel or otherwise. Client shall not, by virtue of this Service Agreement or related Service Proposal or other order form, acquire any ownership interest or rights in the Services, any Company trademarks or service marks, or any other Company technology, software (including third party technology and software) or intellectual property, except for the limited use and access rights described herein.
3. FEES AND PAYMENT FOR SERVICES
3.1 Fees. Client agrees to pay all fees specified in the Agreement, which unless otherwise stated are exclusive of VAT. Unless otherwise provided in any attached Service Proposal or order form, payment of the annual fee in full shall be invoiced upon execution of this Agreement and payment shall be due not later than thirty (30) days after the date of the invoice.
3.2 Taxes, Late Fees and Penalties. Client shall be responsible for paying any applicable sales or service taxes (including VAT) related to this Agreement. If any payment is not received by its due date, Client may be assessed interest on the overdue amount at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, from the date such payment was due until the date paid.
4. WARRANTIES AND DISCLAIMER
4.1 Mutual. Each of the parties represents and warrants that it has all necessary power to enter into and perform its obligations under this Agreement.
4.2 Company. The Company represents and warrants that: (a) the Services will be provided in a professional and workmanlike manner consistent with generally accepted industry standards; and (b) the Services do not infringe upon the intellectual property rights of third parties.
4.3 Client. Client represents and warrants that: (a) the information Client provides to Company to perform the Services accurate and truthful; (b) Client is authorized to provide Company with any information that Client provides to Company in connection with the Services, including Client’s customer information and any personally identifiable information; and (c) the Company’s possession and/or use of such Information on Client’s behalf as permitted in this Agreement will not violate any contract, statute, or regulation.
4.4 Disclaimers. Company does not guarantee or warrant that the Company will find or communicate to Client every example or all examples of Internet review-based or social media content about Client. THE SERVICES ARE PROVIDED “AS IS” AND COMPANY TO THE FULLEST EXTENT PERMITTED BY LAW SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND WHATSOEVER THAT WOULD OTHERWISE BE IMPLIED OR IMPOSED BY STATUTE, AT COMMON LAW, BY A COURSE OF DEALING OR OTHERWISE HOWSOEVER WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S NEEDS OR BE FREE FROM ERRORS.
5. LIMITATION OF LIABILITY
5.1 Limitation on Types of Damages. SUBJECT TO CLAUSE 6.3 AND WITHOUT PREJUDICE TO CLAUSE 6.2, IN NO EVENT SHALL EITHER PARTY EVER BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, OR CLAIM FOR CONTRIBUTION, OR OTHERWISE, FOR ANY: (I) INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS OR DAMAGES, OR (II) ANY LOST PROFITS, LOSS OF GOODWILL, LOSS OF OR CORRUPTION OF DATA, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, OR LOSS OF BUSINESS (IN EACH CASE, WHETHER DIRECT OR INDIRECT), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR DAMAGE.
5.2 Limitation on Amount of Damages. Subject to clause 6.3, the Company’s maximum liability arising out of or in any way connected to this Agreement shall not exceed the fees paid by Client to Company pursuant to the Agreement that is the subject of the claim during the twelve (12) months immediately preceding the claim.
5.3 Liability not Excluded or Limited. Nothing in this Agreement will in any way exclude or limit a party’s liability to the other party for losses or damages arising from: (i) death or personal injury caused by that party’s negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other matter for which it would be illegal to exclude or attempt to exclude or limit its liability.
6. TERM AND TERMINATION
6.1 Term of Engagement and Renewals. The initial term of each engagement shall begin on the date that Company receives an executed agreement and shall continue for the period specified in the Service Proposal or other ordering form (the “Initial Term”). Unless otherwise specified on the applicable Agreement, each Agreement shall automatically renew for successive periods equal in duration to the Initial Term (each a “Renewal Term”) unless either party provides written notice to the other party of its election to terminate the Agreement prior to the end of the then-current term.
6.2 Termination for Breach. Either party may terminate this Agreement at any time upon written notice to the other if the other: (a) is in material or persistent breach of this Agreement and either that breach is incapable of remedy, or the breaching party fails to remedy a material breach within thirty (30) days after receiving written notice identifying a material breach and requiring it to remedy that breach; or (b) is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally.
6.3 Effect of Termination. Upon termination: (a) all rights granted to Client under this Agreement, including Client’s right to use the Services, shall cease; (b) the Company shall stop performing all Services; (c) Client shall immediately pay to Company any fees due under this Agreement thorough the date of termination and (d) each party shall, upon receipt of a written request from the other party, destroy or return all CI (as defined in clause 7.1 below) of the other party. Termination or expiry of this Agreement for any reason shall not affect any rights or liabilities that have accrued prior to termination or expiry or the coming into force or continuance in force of any term that is expressly or by implication intended to come into or continue in force on or after termination or expiry, including clauses 3.1, 3.4, 3.5, 5 through 10.
7. CONFIDENTIALITY, PRIVACY AND PUBLICITY
7.1 Definition of Confidential Information. As used herein, Confidential Information (“CI”) means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood as confidential given the nature of the information and the circumstances of disclosure. CI shall include, without limitation, technical product information, product designs, techniques, methods, or strategies used in connection with the Services, user names, passwords and other log-in information, Company pricing information, the specific terms of this Agreement, and confidential information about and from Client’s employees and customers, including personally identifiable information. However, CI shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
7.2 Protection of CI. The parties each agree to collect, store, and use all CI provided to it or obtained by it as a result of this Agreement, in a manner that: (i) protects the security, confidentiality and integrity of the CI; (ii) ensures against reasonably anticipated threats or hazards to the security or integrity of the CI; and (iii) protects against unauthorized access to or use of the CI that could result in harm or inconvenience to the other party. Each party shall use at least the same degree of care in protecting the CI as the party uses to protect its own CI of like kind (but in no event less than reasonable care). The parties agree that CI shall not be used for any purpose outside the scope of this Agreement and that neither party shall disclose the any CI to any third party without the other party’s prior written consent other than to: (i) its legal counsel and accountants; (ii) to potential investors, lenders, purchasers of either party’s business, or underwriters in connection with their due diligence in future financings, acquisitions mergers or public offerings of either party; or (iii) as required by law.
7.4 Publicity. Client hereby acknowledges and agrees that Company may use Client’s name and logo for the purposes of identifying Client as a Company customer.
8. ARBITRATION, FORUM AND GOVERNING LAW
Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration before the before the London Court of International Arbitration (“LCIA”) under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The arbitration shall be conducted by and submitted to a single arbitrator (“Arbitrator”). The final arbitration hearing shall take place in London, England, but the parties agree that all proceedings and hearings prior to the final hearing may be handled via telephone or video conference. This Agreement and any dispute arising out of or in connection with it or its subject matter, whether of a contractual or non-contractual nature shall be governed by and construed under the laws of England. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator. Nothing in this clause will prevent either party from instigating legal proceedings to seek any interim or emergency measures, including the remedies of injunction, specific performance or other equitable relief in any court of competent jurisdiction.
9. GENERAL PROVISIONS
9.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing by overnight carrier; or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of breach or termination). All notices shall be sent to the addresses set forth in Service Proposal or other ordering document, which may be updated from time to time upon written notice to the other party.
9.2 Force Majeure. The Company shall be excused from performance hereunder to the extent that its performance is prevented, delayed or obstructed by causes beyond its reasonable control such as Internet outages, strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, and natural disasters.
9.3 Anti-bribery. Each party must: (a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including the UK’s Bribery Act 2010, the OECD Convention on Combating Bribery in International Business Transactions, the Foreign Corrupt Practices Act of the United States, and similar multilateral anti-bribery agreements (“Bribery Requirements”); (b) have in place and maintain an anti-bribery policy (“Bribery Policy”), or if none is in place as at the date of this Agreement, implement a Bribery Policy promptly following entry into this Agreement; (c) enforce compliance with the Bribery Requirements and the Bribery Policy where appropriate; and (d) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement to the extent permitted by applicable law. Each party must, if requested, provide the other party with any reasonable assistance, at the other party’s cost, to enable the other party to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with the Bribery Requirements.
9.4 Waiver and Severability. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. If any provision of this Agreement is found to be contrary to law by a court of competent jurisdiction, such provision shall be of no force or effect; but the remainder of this Agreement shall continue in full force and effect. The parties shall meet and confer in good faith with respect to any provision found to be in contravention of the law in order to agree on a substitute provision.
9.5 Assignment. Neither party may assign any of its rights or transfer any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Company may assign any or all of its rights, and transfer any or all of its obligations, under this Agreement, to any person, without the Client’s consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
9.6 Relationship of the Parties. The parties are independent contractors. The relationship between the parties shall not constitute a partnership, joint venture or agency. Neither party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of such other party. 9.7 Third Parties. Nothing in this Agreement confers any right on any person (other than the parties) pursuant to the Contracts (Rights of Third Parties) Act 1999.
9.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which will constitute an original, and all the counterparts will together constitute one and the same agreement.
9.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum executed by both parties or any accepted Agreements, the terms of such exhibit, addendum or accepted Agreements shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any document not executed by both parties (including a Client purchase order or Company invoice) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.