Master Subscription Agreement
This use.id Master Subscription Agreement (“MSA”) is effective as of the effective date of an applicable signed order form (such form an “Order Form” and such date the “Effective Date”) and is by and between Digita BV, with a place of business at Breydelstraat 34-40, 1040 Brussels, Belgium (“Digita”), and the customer set forth on the Order Form (“Customer”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control.
The Parties agree as follows:
1. Scope of the services
The “Services” mean the products and services that are ordered by Customer from Digita in an Order Form referencing this MSA. Services exclude any products or services provided by third parties, even if Customer has connected those products or services to the Services. Subject to the terms and conditions of this MSA, Digita will make the Services available to Customer during the Term.
2. Price and payment
2.1 Customer will pay the fees specified in the Order Form (the “Fees”).
2.2 Digita will invoice Customer for Fees, either within the Services or directly, within thirty (30) days of the Effective Date or otherwise as specified in the Order Form. Customer will pay all invoiced Fees net forty-five (45) days from the date of the invoice. Fees do not include local, state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Customer, except for taxes on Digita, based on Digita’s income or receipts.
3. Term and termination
3.1 This MSA commences on the Effective Date and will remain in effect through the term specified in the Order Form, and will renew as specified in the Order Form unless otherwise terminated in accordance with this Section (collectively the “Term”). If the Order Form does not specify, the Term will be one year and will automatically renew for successive one-year periods unless Customer provides Digita with notice of termination at least forty five (45) days prior to the end of the Term.
3.2 A Party may terminate this MSA for cause (a) upon notice to the other Party of a material breach if such breach remains uncured after ten (10) days from the date of the breaching Party’s receipt of such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately by Digita if Customer makes one of the Prohibited Uses below. Non-payment of Fees by Customer for sixty (60) days after issuance of an invoice, and any violation of the Prohibited Uses clause below will be considered material breaches of this MSA.
3.3. Effect of Termination and Survival. Upon termination of an Order Form or this MSA (a) with respect to termination of the entire MSA, all Order Forms will concurrently terminate, (b) Customer will have no further right to use the Services under the terminated or canceled Order Forms and Digita will remove Customer’s access to same, and (c) unless otherwise specified in writing, Customer will not be entitled to any refund of fees paid. The following Sections will survive termination: Section 2 (Fees and Payment), Section 4 (Intellectual Property Rights), Section 5 (Confidentiality), Section 7.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of this MSA will not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this MSA.
4. Ownership, License, and Use of the Services.
4.1. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (“Intellectual Property Rights”). Digita will retain Intellectual Property Rights in the Services and all components of, or used to, provide the Services or created by the Services or by Digita in the course of providing the Services (the “Services Information”). Customer will retain Intellectual Property Rights in all information it provides to Digita as part of this MSA (other than Feedback as described below), including but not limited to in the course of its use of the Services (the “Customer Information”).
4.2. Customer may, under this MSA, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Digita (the “Feedback”). Customer provides Digita a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback. Digita also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback.
4.3. Digita hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to and license to access and use the Services as set forth in the Order Form all subject to the terms and conditions of this MSA and the Order Form. Customer hereby grants Digita a non-exclusive, non-transferable, non-sublicensable right and license to use the Customer Information solely to provide the Services to Customer.
4.4. Customer may designate and provide access to the Services to employees, agents, or authorized contractors (each an “Authorized User”). Customer is responsible for all use and misuse of the Services by Authorized Users and for adherence to all terms of this MSA by any Authorized Users, and references to Customer herein will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify Digita of any unauthorized access or use of which Customer becomes aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of this MSA by Customer.
4.5. Customer and Authorized Users will not: (a) “frame,” distribute, resell, or permit access to the Services by any third party other than as allowed by the features and functionality of the Services; (b) use the Services in violation of applicable laws; (c) interfere with, disrupt, or gain unauthorized access to the Services; (d) successfully or otherwise, attempt to: reverse engineer, discover the underlying source code or structure of, or copy the Services; (e) provide Digita any Customer Information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party intellectual property rights; (f) transfer to the Services or otherwise use on the Services any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Services; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services; (h) provide access to the Services to an individual associated with a Digita Competitor; or (i) extract information from the Services in furtherance of competing with Digita. A “Digita Competitor” is any entity that provides the same or similar goods and services to those provided to Digita, as would be determined by a commercially reasonable individual.
4.6 Customer will comply with other policies that govern the Services such as the Provisioning Service User Policy.
5. Confidential information
If the parties have a separate mutual nondisclosure agreement, that agreement will control (the “Separate MNDA”). Otherwise, as used herein, the “Confidential Information” of a Party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (the “Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Services Information and Customer Information are Confidential Information under this MSA, or confidential under the Separate MNDA, as applicable. Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this MSA, such obligations including, in the case of Digita, to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party.
6. Privacy and Security Practices
7. Representations, Warranties, and Disclaimers.
7.1. Each Party represents that it has validly entered into this MSA and has the legal power to do so.
7.2. Digita warrants that during an applicable Term (a) the DPA accurately describes the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Information; and (b) the Services will perform materially in accordance with any applicable documentation provided to Customer. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in Section 3 (Term and Termination) herein.
7.3. Except as specifically set forth in this section, the services, including all server and network components, are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and Digita expressly disclaims any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Customer acknowledges that Digita does not warrant that the services will be uninterrupted, timely, secure, error-free, or free from viruses or other malicious software, and no information or advice obtained by customer from Digita or through the services shall create any warranty not expressly stated in this MSA. The parties additionally agree that Digita will have no liability or responsibility for Customer’s various compliance programs, and that the services, to the extent applicable, are only tools for assisting Customer in meeting the various compliance obligations for which it solely is responsible.
8.1. Digita will indemnify and hold Customer harmless from any third party claim against Customer arising out of Customer’s use or purchase of the Services as permitted hereunder alleging that such Services infringe or misappropriate a third party’s valid patent, copyright, trademark, or trade secret. Digita will, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Digita for such defense, provided that (a) Customer promptly notifies Digita of the threat or notice of such claim; (b) Digita will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Digita will not settle or compromise any claim that results in liability or admission of any liability by Customer without prior written consent); and (c) Customer fully cooperates with Digita in connection therewith. If use of a Service by Customer has become, or, in Digita opinion, is likely to become, the subject of any such claim, Digita may, at its option and expense, (i) procure for Customer the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Digita, terminate this MSA and repay, on a pro-rata basis, any Fees previously paid to Digita for the corresponding unused portion of the Term for related Services. Digita will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Customer; (y) modification of the Services by anyone other than Digita; or (z) the combination, operation or use of the Services with other hardware or software where the Services would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Digita to Customer and constitute Customer’s sole remedy with respect to an infringement claim brought by reason of access to or use of a Service by Customer or Authorized Users.
8.2. Indemnification by Customer. Customer will indemnify and hold Digita harmless against any third party claim arising out of (a) Prohibited Uses in breach of this MSA as set forth above; or (b) alleging that Customer Information infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret; provided (i) Digita promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Customer will not settle or compromise any claim that results in liability or admission of any liability by Digita without prior written consent); and (iii) Digita fully cooperates in connection therewith.
9. Limitation of liability
Except for breaches of the prohibited uses section above, under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this MSA, or their affiliates, officers, directors, employees, agents, service providers, suppliers or licensors be liable to the other party or any affiliate for any lost profits, lost sales or business, lost data (being data lost in the course of transmission via Customer’s systems or over the internet through no fault of Digita), business interruption, loss of goodwill, costs of cover or replacement, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other indirect loss or damages incurred by the other party or any affiliate in connection with this MSA or the services regardless of whether such party has been advised of the possibility of or could have foreseen such damages. Notwithstanding anything to the contrary in this MSA, either party’s aggregate liability to the other party or any third party arising out of this MSA or the services will in no event exceed the fees paid by Customer during the twelve (12) months prior to the first event or occurrence giving rise to such liability; provided that liability under the Parties’ indemnification obligations or for breaches of confidentiality will not in the aggregate exceed (10) ten times that amount; and further provided that liability for damages due to prohibited uses under this MSA will be capped at € 100.000. Customer acknowledges and agrees that the essential purpose of this section is to allocate the risks under this MSA between the Parties and limit potential liability given the fees, which would have been substantially higher if Digita were to assume any further liability other than as set forth herein. Digita has relied on these limitations in determining whether to provide Customer with the rights to access and use the services provided for in this MSA.
10.1. This MSA, any active Order Forms, the Separate MNDA and User Policies, if applicable, constitute the entire agreement, and supersedes all prior agreements, between Digita and Customer regarding the subject matter hereof.
10.2. Either Party may, without the consent of the other Party, assign this MSA to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party’s assets provided that (1) the other Party is provided prior notice of such assignment and (2) any such successor agrees to fulfill its obligations pursuant to this MSA. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
10.3. If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
10.4. The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
10.5. All notices provided by Digita to Customer under this MSA may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by Customer on the Order Form; or (b) electronic mail to the electronic mail address provided for Customer’s account owner. Customer must give notice to Digita either in writing by Courier or mail to TOPOS Office Center, Breydelstraat 34-40, 1040 Brussels, Belgium, Attn: Legal Department or by email to [email protected] All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
10.6. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the Parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognising their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the Parties do not reach such solution within a period of sixty (60) days, then, upon notice by either Party to the other, all disputes, claims, questions, or differences shall be finally settled by the the courts located in Leuven, Belgium in accordance with the provisions of the laws of Belgium.
10.7. If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing Party will be entitled to reasonable attorneys' fees and costs.
10.8. If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
10.9. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed Party's reasonable control.
10.10. Digita may use Customer’s name, logo, and trademarks solely to identify Customer as a client of Digita on Digita’s website and other marketing materials and in accordance with Customer’s trademark usage guidelines. Digita may share aggregated and/or anonymized information regarding use of the Services with third parties for marketing purposes to develop and promote Services. Digita never will disclose aggregated and/or anonymized information to a third party in a manner that would identify Customer or any identifiable individual as the source of the information.
10.11. Digita may amend this MSA and the User Policies of the Services from time to time, in which case the new MSA will supersede prior versions. Digita will notify Customer not less than ten (10) days prior to the effective date of any such amendment and Customer’s continued use of the Services following the effective date of any such amendment may be relied upon by Digita as consent to any such amendment. Digita’s failure to enforce at any time any provision of this MSA does not constitute a waiver of that provision or of any other provision of this MSA.
Updated about 1 year ago