as a Service Agreement
This Limelight Software As A Service Agreement (the “Agreement”) is entered into as of order form date (“Effective Date”), between Limelight Platforms Inc. (“Limelight”), with its principal place of business located at 33 Bloor St. East, 5th Floor, Toronto, ON M4W 3H1 and (the “Customer” as defined on the order form), with its principal place of business located at [Customer on order form]. Each of Limelight and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.
This Agreement sets forth the terms and conditions that govern the provision and use of: (i) the Limelight Platform Services for assistance with direct marketing; and (ii) consulting, training and other professional services made available by Limelight in respect of the Limelight Services.
- “Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users or Consumers) loads, transmits to or enters into (or permits to be loaded into, transmitted to, or entered into) the Limelight Services, and includes information about Consumers made available by Customer to Limelight.
- “Consumer” means any individual who is not an employee or independent contractor of Customer who receives information from, provides information to, or otherwise interacts with the Limelight Platform Services pursuant to Customer’s use of the Limelight Platform Services.
- “Fees” has the meaning set out in Section 7.
- “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
- “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
- “Order Form” means the order form set out at Exhibit A, or any additional order form or statement of work that references this Agreement once executed by both Parties.
- “Permitted User” means those employees and independent contractors authorized by Customer on Customer’s behalf in accordance with Section 5 to access and use the Limelight Services in accordance with this Agreement.
- “Personal Information” means information about an identifiable individual.
- “Limelight Platform Services” means services through which Limelight hosts and makes available the Limelight solution for direct marketing services. The term “Limelight Platform Services” includes the Limelight Software and Technical Support Services, but does not include Professional Services.
- “Limelight Software” means Limelight’s direct marketing software product made available under the name “Limelight”, and any updates provided as part of the Limelight Platform Services.
- “Professional Services” means the consulting and other professional services set out in an Order Form.
- “Limelight Services” means the Limelight Platform Services and the Professional Services, collectively, and any part thereof.
- “Technical Support Services” means the support services described in Section 6.
- “Term” has the meaning set out in Section 11(a).
- “Website” means any websites used by Limelight to provide the Limelight Platform Services, including the websites located at https://limelightplatform.com/, https://dashboard.limelightplatform.com/, andhttp://support.limelightplatform.com/.
- Limelight Platform Services
- Provisioning of the Limelight Platform Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Limelight will make the Limelight Platform Services available to Customer (and, as applicable, to Consumers) on the terms and conditions set out in this Agreement.
- Restrictions on Use. Customer must not itself, and will not permit others to:
- except as expressly permitted in this Agreement, sub-license, sell, rent, lend, lease or distribute the Limelight Platform Services or any intellectual property rights therein or otherwise make the Limelight Platform Services available to others;
- use the Limelight Platform Services to permit timesharing, service bureau use or commercially exploit the Limelight Platform Services;
- use or access the Limelight Platform Services in violation of any applicable law (including anti-spam laws) or intellectual property right;
- use or access the Limelight Platform Services in a manner that threatens the security or functionality of the Limelight Platform Services;
- use the Limelight Platform Services to create, collect, transmit, store, use or process any Customer Data (including information provided by Consumers):
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use, or process; or
- that violates any applicable laws, or infringes, violates, or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right, or right of publicity);
- Modify the Limelight Platform Services;
- reverse engineer, decompile or disassemble the Limelight Platform Services;
- remove or obscure any proprietary notices or labels on the Limelight Platform Services, including brand, copyright, trademark, and patent or patent pending notices; /li>
- access or use the Limelight Platform Services for the purpose of building a similar or competitive product or service;
- perform any vulnerability, penetration, or similar testing of the Limelight Platform Services; or
- access or use the Limelight Platform Services for any purpose or in any manner not expressly permitted in this Agreement.
- Ownership; Reservation of Rights
- Except as expressly provided in this Agreement, Customer retains all right, title and interest, including intellectual property rights, in and to Customer Data. Customer grants to Limelight a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to collect, use, process and transmit Customer Data to provide the Limelight Platform Services. Limelight may collect and analyze data and other information relating to the provision, use, and performance of the Limelight Platform Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term of this Agreement, Limelight may: (i) use, store and process such data and information to improve and enhance the Limelight Platform Services and for other development, diagnostic and corrective purposes in connection with the Limelight Platform Services and other Limelight offerings; and (ii) generate aggregated and de-identified data and disclose such data and information solely in aggregated or other de-identified form in connection with its business.
- Limelight or its licensors retain all right, title, and interest, including intellectual property rights, in and to: (i) the Limelight Services; (ii) anything developed or delivered by or on behalf of Limelight under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
- All rights not expressly granted by Limelight to Customer under this Agreement are reserved.
- Consumer Consents; Privacy
- Customer User Account
Upon Customer’s request, Limelight will issue one or more individual accounts (each, a “Customer User Account”) to Customer for use by individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Limelight Platform Services (each, a “Permitted User”). Customer will ensure that Permitted Users only use the Limelight Software or Limelight Platform Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ compliance with this Agreement. Customer will promptly notify Limelight of any actual or suspected unauthorized use of the Limelight Software or Limelight Platform Services (including by any Permitted User or Consumer). Limelight reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
Up to two designated Customer personnel will generally have access to Limelight’s technical support on behalf of Customer via telephone from 9 AM (EST) to 6 PM (EST) Monday through Friday (excluding statutory and civic holidays observed in Toronto, Ontario). Customer will reasonably cooperate with Limelight to enable it to exercise the support activities contemplated in this Agreement.
- Fees and Payment
- Customer will pay to Limelight the fees described in any Order Form (the “Fees”). Unless otherwise provided in the Order Form, Limelight will invoice Customer for the first year of Fees as of the effective date of the Order Form, and thereafter Limelight will invoice Customer for Fees for the next 12 months on the date that is 30 days before the start of such 12-month period. If Customer’s use of the Limelight Platform Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. Unless otherwise noted on an Order Form, all Fees are identified in [US dollars] and are payable in advance. All Fees are non-refundable except as specifically provided otherwise in this Agreement.
- Changes to the Fees. Limelight reserves the right to increase the Fees by up to 5 percent on each anniversary of the Effective Date.
- Limelight will prepare and send to the Customer, at the then-current contact information on file with Limelight, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in the Order Form, Customer will pay all invoiced amounts within 30 days of the invoice date.
- Disputed Invoices or Charges. If Customer believes Limelight has charged or invoiced Customer incorrectly, Customer must contact Limelight no later than 45 days after having been charged by Limelight or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
- Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Limelight reserves the right to suspend Customer’s access to the Limelight Platform Services and any delivery of Professional Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
- The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property, or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees, or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Limelight.
- Any suspension of the Limelight Platform Services by Limelight pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
- Confidential Information
- For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality. Notwithstanding Section 8(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Limelight, to potential assignees, acquirers or successors of Limelight if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Limelight.
- Warranty; Disclaimer; Indemnity
- Customer Warranty. Customer represents and warrants to, and covenants with Limelight that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User and each Consumer), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable Limelight to provide the Limelight Platform Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Limelight and to or from all applicable third parties.
- Compliance with Applicable Consumer Laws. Without limiting any other provision in this Agreement, Customer acknowledges that it is solely responsible for confirming that its use of the Limelight Platform Services in respect of Consumers complies with all applicable laws (including all laws related to consumer protection, promotional contests, and use of emails and other electronic communications for marketing purposes).
- GENERAL DISCLAIMER. LIMELIGHT DOES NOT WARRANT THAT THE LIMELIGHT PLATFORM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE LIMELIGHT PLATFORM SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE LIMELIGHT PLATFORM SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY LIMELIGHT TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
- TO THE EXTENT PERMITTED BY APPLICABLE LAW, LIMELIGHT HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, LIMELIGHT EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION, OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE LIMELIGHT PLATFORM SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- Customer will defend, indemnify and hold harmless Limelight, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Consumers and Permitted Users) liability (including damages, recoveries, deficiencies, interest, penalties, and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) use of the Limelight Platform Services in respect of Consumers; (iii) Customer’s failure to comply with applicable laws; or (iv) use of the Limelight Platform Services (or any part thereof) by Customer or any Permitted User in combination with any third-party software, application or service. Customer will fully cooperate with Limelight in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Limelight.
- IP Infringement Indemnity. Limelight will defend, indemnify and hold harmless Customer, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties, and legal fees), directly or indirectly arising from or in connection with any claim by a third party that the Limelight Platform Services infringe any Canadian or U.S. copyright, patent or other intellectual property right, provided that Customer notifies Limelight within 30 days of the claim. Customer will give Limelight sole control of the defence of such claim, fully cooperate with Limelight in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Limelight.
- Replacement of Infringing Products. If all or any part of the Limelight Platform Services becomes, or in Limelight’s reasonable opinion is likely to become, the subject of a claim described in Section 9(e), Limelight will, at its option: (i) procure for Customer, at Limelight’s expense, the right to continue to use the Limelight Platform Services; (ii) modify the allegedly infringing material, at Limelight’s expense, to make it non-infringing and substantially equivalent in functionality to the replaced Limelight Platform Services; or (iii) if neither option in clause (i) or (ii) are reasonably feasible, terminate this Agreement and return a pro-rata portion of the Fees paid by Customer.
- Exclusions from IP Infringement Indemnity. Notwithstanding Sections 9(e) and 9(f), Limelight will have no liability for any claims of infringement to the extent that they arise from the use of the Limelight Platform Services: (i) in a manner not permitted in this Agreement; or (ii) in combination with any third-party software, application or service not provided by Limelight.
- Limitation of Liabilities
- The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- EXCEPT AS PROVIDED IN SECTION 10(c), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE LIMELIGHT SERVICES IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL LIMELIGHT’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- Section 10(a) will not apply to limit either Party’s liability or obligations under Section 9(d) (Indemnities) or Section 9(e) (IP Infringement Indemnity).
- Term and Termination
- This Agreement will commence on the Effective Date and continue to be in effect for a period set out in the Order Form (the “Term”). [The Term will automatically renew for successive one-year terms unless either Party provides the other Party with written notice of its intention not to renew not less than 90 days prior to the end of the then-current Term.]
- Termination for Convenience. Customer may terminate this Agreement at any time by providing written notice to Limelight and paying all of the Fees for the remainder of the Term.
- Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement (which includes, in the case of Customer, failure to pay Fees when due) and fails within 30 days after receipt of notice of such breach to correct such material breach.
- Other Termination Rights. If Limelight makes changes to the Limelight Platform Services that materially and adversely affect the business and operations of Customer, Customer may terminate this Agreement if: (i) Customer provides notice to Limelight no later than 30 days following the date that such changes became effective and provides reasonable evidence of such material adverse effect; and (ii) Limelight notifies Customer that it will not waive the application of such changes to Customer.
- Transition Services. Upon termination of this Agreement, Customer will no longer have rights to access or use the Limelight Platform Services. Within 30 days following termination, Limelight will make available for Customer to download, as Customer’s cost, a file containing the Customer Data. After such 30-day period and subject to its rights herein, Limelight will delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Limelight to provide the Limelight Platform Services.
- The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11(f) (Survival), and Section 12 (General Provisions).
- General Provisions
Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first-class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to Limelight, to the following address:507 - 555 Richmond Street West, Toronto, ON M5V 3B1Attention: Limelight Finance DepartmentEmail: email@example.com
and (ii) if to Customer, to the current postal or email address that Limelight has on file with respect to Customer. Limelight may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Limelight current at all times during the Term.
Customer will not assign this Agreement to any third party without Limelight’s prior written consent. Limelight may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors, and permitted assignees.
Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Limelight Platform Services.
Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Limelight in this Agreement means the right of Limelight to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond the Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labour problems (other than those involving Limelight’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites.
Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
Independent Contractors. Limelight’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations, or other communications, whether written or oral.
No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Limelight may use Customer’s name and logo on Limelight’s website to identify Customer as a customer of Limelight and the Parties will work together in good faith to issue at least one mutually agreed upon press release within 30 days after the date the Parties enter into this Agreement.