MASTER SERVICES AGREEMENT
This Filum Master Service Agreement (the Agreement) is made between Filum, Inc., a US corporation (Filum) and each party (a Customer) that executes an Order Form for the Services, as defined below. Between Filum and each Customer the Agreement consists of these terms, each Order Form, including any exhibits, and each amendment of any of the foregoing. This Agreement is effective as of the date of Customers initial Order Form (the Effective Date). By executing the initial Order Form, Customer agrees to all the terms set forth below.
In certain cases Filum may provide a trial version of the Services. In that case each Customer consents to this Agreement by clicking Agree or using the Services. If Customer and Filum execute a subsequent agreement regarding commercial use of the Services, its terms will supersede the terms here to the extent of any conflict.
NOW THEREFORE, the parties agree as follows:
1. SERVICES AND SUPPORT
1.1. Services.Subject to the terms of this Agreement, Filum will use commercially reasonable efforts to provide to Customer the services identified on each Order Form and the technical support on Exhibit A. As used in this Agreement, the term Services includes the customer-facing services, implementation services, support, Software (as defined below) and any other services provided by Filum to Customer. As part of the registration process, Customer will identify an administrative username(s) and password(s) for Customers Filum user(s).
1.2. Orders by Affiliates. Customers Affiliates may, upon executing a new Order Form and agreeing to be bound by the provisions of this Agreement use the Services identified in that Order Form. Upon execution of an Order Form by Filum and the Affiliate(s), the Affiliate(s) will be bound by the provisions of this Agreement as if they were an original party hereto. Affiliate means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to Filum or in the business of developing and offering products or technologies that are substantially similar to the Services.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Use of Software Underlying Services. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (the Software); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Filum in writing or authorized within the Services); frame, mirror or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as part of a Powered by Filum deployment identified on an Order Form; or remove any proprietary notices or labels.
2.2. Appropriate Use of Services. Customer will not, and will not permit its users to:
(a) Post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Services; or
(b) Attempt to access any other Filum systems that are not part of these Services.
(c) Use the Services to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:
(i) Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or flaming others, or criminal or civil liability under any local, state, federal or foreign law; or
(ii) Any information, software or content Customer does not have the legal right to process or transmit.
2.3. Although Filum has no obligation to monitor Customers use of the Services, Filum may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.
3.1. Confidential Information. Subject to the limitations set forth in Section 3.2, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be Confidential Information. Confidential Information of Filum includes non-public information regarding features, functionality and performance of the Services and Software. Confidential Information of Customer includes all data provided by Customer to Filum to enable the provision of the Services (Customer Data).
3.2. Exceptions. Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.
3.3. Nondisclosure. Each party covenants that it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing partys Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
3.4. Return; Destroy; Protect. On the disclosing partys request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of Confidential Information created in the ordinary course of the receiving partys business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains information disclosed by the disclosing party, the receiving party will continue to protect such information in accordance with Section 3.3: (x) for so long as it meets the definition of Confidential Information above; (y) if it constitutes a trade secret for so long as required under applicable law, and/or (z) if it constitutes personal data received from the disclosing party for so long as required by applicable law.
3.5. Customer Identification. Filum may identify Customer as a user of the Services and may use Customers name and logo in Filums customer list, press releases, blog posts, advertisements, and website.
4. PROPRIETARY RIGHTS
4.1. Ownership Rights. Customer owns all right, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and all intellectual property rights related to any of the foregoing. Filum owns and retains all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
4.2. Protection of Customer Data. Filum will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Filum personnel except (a) to provide the Services and to prevent or address service or technical problems, or (b) as Customer expressly permits in writing.
4.3. Removal of Customer Data. Upon termination or expiration of this Agreement, in the event Filum has any Customer Data, Filum shall delete all such Customer Data from its systems without retaining any copies thereof.
4.4. Injunction for Breach. The parties agree that damages would be an inadequate remedy in the event of a breach of Sections 3 or 4. Therefore, the parties agree that a party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach by the other party of Sections 3 or 4.
5. PAYMENT OF FEES
5.1. Calculation of Fees. Customer will pay Filum the applicable fees described in each Order Form (the Fees). The initial Fees are identified on the initial Order Form. Except as otherwise provided herein all fees are noncancelable and nonrefundable. If Customers use of the Services exceeds the Services capacity set forth on the Order Form(s) or otherwise requires the payment of additional fees (per the terms of this Agreement), Filum will invoice Customer for such additional usage and Customer agrees to pay the additional Fees in the manner provided herein.
5.2. Payment Terms. Filum will bill through an invoice. Full payment for invoices issued in any given month must be received by Filum within 30 days after the mailing date of the invoice (which may be sent by email). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Filums net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Filum hereunder. If an applicable tax authority requires Filum to pay any taxes that should have been payable by Customer, Filum will advise Customer in writing, and Customer will promptly reimburse Filum for the amounts paid. If Customer believes that Filum has billed Customer incorrectly, Customer must contact Filum no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Filums customer support department. Without limiting its other remedies, Filum may suspend Services for nonpayment of fees.
6. TERM AND TERMINATION
6.1. Term. This Agreement will continue from the Effective Date until the earlier of: (a) the expiration of all Services subscriptions, or (b) termination pursuant to Section 6.2 below (the Term). Each Services subscription will run for the subscription term specified in the applicable Order Form and will renew automatically for additional one-year periods unless a party provides notice of nonrenewal to the other party at least 30 days prior to expiration of the applicable term.
6.2. Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party (a) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets (Termination for Cause). If Filum terminates this Agreement for Customers breach, Customer remains obligated to pay the balance due on Customers account for the remainder of the Term, computed in accordance with the applicable Order Form(s), and will be billed for such unpaid fees.
6.3. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTIES AND DISCLAIMER
7.1. Authority. Each of Filum and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
7.2. Services Warranty. Filum shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform implementation and support Services in a professional and workmanlike manner.
7.3 FILUMTRAN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED AS IS AND FILUMTRAN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1. By Filum. Filum will defend or settle any claims, actions and demands brought by third parties against Customer and Customers subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively Indemnified Parties) where the third party expressly asserts that the Software:infringes such third partys trademark or copyright arising under the laws of the United States, orFilum misappropriated such third partys trade secrets in the development of the Software (collectively, Claims). Customer must give written notice of the Claim to Filum promptly after Customer becomes aware of the Claim, and Filum’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Filum, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Filum or combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customers use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Filum to be infringing, Filum may, at its option and expense (x) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid, unused fees for the Services.
8.2. By Customer. Customer will indemnify, defend and hold harmless (by counsel reasonably satisfactory to Filum) Filum and its Indemnified Parties against all liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorneys fees and disbursements) alleging that the Customer Data or its use has infringed the rights of or otherwise caused harm to a third party, or violated applicable law; provided that in any such case Filum gives written notice of the Claim to Customer promptly after Filum becomes aware of such Claim, and Customers indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice.
9. LIMITATION OF LIABILITY
9.1. NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS AND SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF FILUMTRAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMERS LIABILITY FOR MISAPPROPRIATION OF FILUMS INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND SERVICES.
9.2. DIRECT DAMAGES. THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO FILUMTRAN DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM, OR $100 IF CUSTOMER IS USING A TRIAL OF THE SERVICES. THE FOREGOING SHALL NOT LIMIT CUSTOMERS PAYMENT OBLIGATIONS UNDER SECTION 5.
10.1. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.
10.2. Notices. All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to each party at its respective address provided on the initial Order Form.
10.3. Enforceability. If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.
10.4. Force Majeure. If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.
10.5. Assignment. This Agreement may not be assigned by either party without the other partys consent, whether by operation of law or otherwise; provided that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void.
10.6. Integration. This Agreement is the complete statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Filum in lieu of or in addition to Filums Order Form, Customers purchase order shall be binding only as to the following terms: (a) the Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.
10.7. Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
10.8. Governing Law and Jurisdiction; Attorney Fees. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement must be brought in the federal or state courts in the Northern District of California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorneys fees and expenses and court costs.
This Terms of Service is effective as of May 05, 2020.