Welcome - Master Services Agreement

Master Services Agreement

This Master Services Agreement is made and entered into between NewsCred Inc. (t/a Welcome), a Delaware corporation with a principal place of business at 386 Park Avenue, 6th Floor, New York, NY 10016, United States of America, and its Affiliates (hereinafter “Company”, “NewsCred”, or “Welcome” as referenced throughout); and Customer, as defined above and in any applicable Order Form.

Company and Customer are individually referred to as a “Party” and collectively as the “Parties”. This Master Services Agreement, including all Orders, appendices and references, serve as the terms and conditions for an agreement between the Parties (“Agreement”). The Parties’ understanding regarding the Subscription, and shall take precedence over any different or additional terms of any P.O. or other non-Company ordering document, and no terms included in any such P.O. or other non-Company ordering document shall apply to the Subscription. If there is a conflict between this Agreement and an Order, the terms of the Order shall prevail.

By signing the Company Order Form, Customer places an initial Order for the Subscription and accepts these terms and conditions. The date the Order Form is signed by Company shall be deemed to be the effective date (“Effective Date”).

1. Definitions

1. means any entity that controls, is controlled by, or is under common control of either Party to this Agreement. The term “control” shall mean the power or authority to direct influence over the operations of an entity, as indicated by the holding of a majority share of the voting stock of such entity, and in relation to the Company means the Episerver entity that is a party to this Agreement and/or signs an Order or other documentation as part of the Agreement, including Optimizely Inc., a company incorporated in Delaware, USA, Episerver Inc., a company incorporated in Delaware, USA, NewsCred Inc., a company incorporated in Delaware, USA, Episerver AB, a company registered in Sweden, Episerver UK Ltd., a company registered in England and Wales, and Episerver GmbH, a company registered in Berlin, Germany.

1. means an employee, agent, contractor, vendor, supplier, or customer of Customer who is authorized by Customer to access and use the Software Services for Customer’s business purposes.

1. means any proprietary and confidential information provided to either Party under this Agreement.

1. means the one (1) year period from and including a specified date within the Order, or if no date given, the Effective Date or any anniversary thereof.

1. “Service Level Agreement” (“SLA”) means the level of service provided by Company to Customer for the Software Service(s), which may define availability, operational information, third-party providers and additional responsibilities of Parties.

1. “Software Service(s)” means the cloud-based software services provided by Company to Customer as defined in an Order as part of Customer’s Subscription, each subject to the applicable Product Service Terms as defined in Section 2.2 of this Agreement.

1. “Subscription” means all Software Service(s) specified in any Order(s) to be made available pursuant to the terms and conditions of this Agreement by Company to Customer at any time during the term of this Agreement.

1. “Subscription Term” means the total period that the Agreement is in force made up of the Initial Subscription Term and any Extended Subscription Term(s).

2. Contractual Documents and Priority

2.2.    The following tables show the documents that are applicable to the relevant service and the precedence of those documents. Each table should be taken in isolation for the relevant service.

 

Name

Link if applicable

2.2.1.

The Master Services Agreement and subsequent Order(s)

N/A

2.2.2.

End-User Services Agreement

End-User Services Agreement (“EUSA”)

2.2.3.

Marketing Orchestration Platform Service Terms

Appendix – Marketing Orchestration Platform Service Terms (“MOP”) – Applicable to Welcome Services only

3. Subscription Term(s)

  • Initial Subscription Term – This Agreement shall commence on the Effective Date and shall continue for the total months stated in the initial Order (or line item within such Order) (hereby “Initial Subscription Term”).
    • Auto Renewal – Customer’s Subscription, subject to the rights of termination and suspension in this Agreement, will auto-renew at the end of the Initial Subscription Term for twelve (12) months (“Extended Subscription Term“) at the end of the Initial Subscription Term and at the end of each Extended Subscription Term thereafter, with invoicing and payments for the base Usage Terms and Rights invoiced annually in advance. Such auto-renewal will take effect unless this Agreement is terminated in accordance with the Agreement terms and shall include all Software Service(s) agreed to in the relevant Subscription Term.
    • Price Increase – Following the Initial Subscription Term [and any Extended Subscription Term], increase of Subscription fees may be adjusted based on the previous Contract Year, effective on each anniversary date of the Effective Date, upon ninety (90) days’ written notice from Company to Customer, by no more than five percent (5%) per annum.

4. Fees, Billing, and Payment

  • Customer shall pay Company all fees set forth in the Agreement. Except where otherwise stated in the Agreement, all prepaid fees are non-refundable and non-cancellable. While Software Service(s) fees may be expressed in monthly terms in the Order, billing, invoice, and payments will be done on an annual and in advance basis. If any Software Service(s) fees are incurred through the Overage Terms and Price during the Initial Subscription Term or renewal Subscription Term(s), those will be invoiced on a monthly basis, in arrears. Payment terms are net thirty (30) days from the issue date of the invoice for all fees herein.
    • If Customer does not pay the undisputed (where such dispute must be genuine in nature) outstanding amount due, within the time set out, Customer shall, in addition to the outstanding amount due, pay penal interest on the overdue amount at the rate of eight percent (8%) per annum. The payments shall at first hand be offset by the accrued penal interest and only thereafter by the outstanding amount due. Customer’s obligation to pay penal interest in accordance with this Section does not in any way limit Company’s right to suspend the affected Software Service(s) or terminate the Agreement invoking premature termination pursuant to Section 5.5 (Suspension of Services) herein.

5. Termination and Suspension

  • Termination for cause – Unless otherwise provided in this Agreement, either Party may terminate this Agreement for cause, as to any or all Software Services and/or Subscriptions: (i) upon thirty (30) days’ written notice to the other Party of a breach if such breach remains uncured for thirty (30) days following the written notice, or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, receivership, or assignment for the benefit of creditors or if Customer infringes on Company intellectual property rights or ninety (90) days after (or ten (10) days if paid by credit card) Customer has received notice of undisputed non-payment.
    • Termination for convenience – Either Party may terminate the Agreement and/or Order(s) for convenience during the Initial Subscription Term or Extended Subscription Term, however the notice period required is no less than ninety (90) days prior to the end of the Initial Subscription Term or Extended Subscription Term. If Customer terminates the Agreement and/or Order(s) for convenience, Customer shall be responsible for payment of any outstanding and remaining fees of the Initial Subscription Term or Extended Subscription Term.
    • Termination for non-renewal – Written notice for terminating the Agreement and/or Order(s) for non-renewal of the Subscription(s) for the upcoming Extended Subscription Term may be given by either Party, however the notice period required is no less than ninety (90) days prior to the end of the Initial Subscription Term or Extended Subscription Term. If Customer terminates the Agreement and/or Order(s) for non-renewal, Customer shall be responsible for payment of any outstanding and remaining fees of the Initial Subscription Term or Extended Subscription Term.
    • Effects of Termination – The following provisions apply if this Agreement expires or is terminated for any reason:
      • Return of Confidential Information – Parties shall, promptly return or destroy all copies (in whatever form, whether full or partial) of all Confidential Information, which is in a Party’s possession or under its control. Within thirty (30) days after termination, Parties shall provide written confirmation to the other Party that all copies of the Confidential Information have been returned or have been destroyed. Parties shall also implement appropriate measures to safeguard the confidentiality of any intangible Confidential Information that cannot be physically returned or destroyed.
      • Termination of Software Services – Customer’s license rights terminate, and it must promptly: (i) stop using the applicable Software Service(s); and (ii) cease accessing any Customer Data in the applicable Software Service. Company may delete the Customer Data at any time after thirty (30) days from the termination date.
      • Payments – Customer shall remain obligated to pay all amounts already owed to Company under this Agreement and any related agreements. All amounts due to Company hereunder shall become immediately due and payable upon termination. However, if termination of the Agreement occurs due to Company’s uncured breach, all pre-paid, unused fees under this Agreement from the date of termination shall be refunded to Customer.
    • Suspension of Services – Company will provide Customer with notice of non-payment of any amount overdue with no less than thirty (30) day notice. Unless the full amount of undisputed fees has been paid, Company shall then give final notice of non-payment, and may suspend Customer access to any or all of the Software Services ten (10) days after such final notice. Company will not suspend the Software Service(s) whilst Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Software Service(s) is suspended for non-payment of undisputed fees, Company may charge a re-activation fee consistent with industry standard to reinstate the Software Service(s).

  Appendix – Marketing Orchestration Platform Service Terms

This Appendix is made and entered into between Customer and Episerver (hereafter, “Optimizely” or “Company”) as part of the Master Services Agreement (‘Agreement’). The Marketing Orchestration Platform Service Terms (“MOP”) is to be considered as an integral part of the Agreement. Capitalized terms defined in the Agreement or any Order Forms shall apply within this MOP. The terms of this MOP shall only apply to the Marketing Orchestration Platform Service(s).

Additional Definitions

“Analytics Pixel” means the tracking pixel embedded in the content posted via the Platform.

“Analytics Script” means the javascript tracker provided to Customer by Company.

“Client Data” means content owned or licensed separately by Customer and has the same meaning as referenced in the EUSA.

“Marketing Orchestration Platform” or “Platform” means Company’s proprietary end-to-end marketing software that allows Company’s customers to plan, staff, and execute content marketing campaigns across multiple platforms by displaying the Client Data.

“Login Credentials” means the unique username and password provided by Company to Customer.

“Services” means the provision of the Company Login Credentials to access and use the Company Platform, and/or any other services set forth on Customer’s Order Form.

Additional Terms and Conditions

1. Customer shall not copy and/or distribute the Company Login Credentials or provide access to the Services to anyone outside of permissioned employees, agents and/or contractors, and shall protect the Services from unauthorized access, modification or distribution;

  • Customer will not use the Services in contravention of any laws or regulations, including, but not limited to, intellectual property law and/or privacy laws;
  • Customer shall not use the Services in a manner that adversely impacts the stability of Company’s servers or adversely impacts the behavior of other applications using the Company Platform;
  • Customer will not use the Services to build or support, or assist a third party in building or supporting, products or services competitive to Company; and
  • Customer will not perform any penetration testing, load testing, or any other kind of testing on Company’s software.
  • Company shall provide Customer with a JavaScript tracker (the “Analytics Script”), which Customer must implement on the requisite approved Customer property(ies) (digital properties to which Customer publishes the  Client Data. Each piece of content published via the Platform will have an embedded tracking pixel (the “Analytics Pixel”), which Customer must not remove. Company will use the Analytics Script, the Analytics Pixel, and cookies to track anonymized data on usage of Client Data, measure interest in certain topics, and capture information on page views, unique visitors, browser information, IP address, referrals from paid search, and engagement metrics, such as time on site. The foregoing data will be delivered to Customer  via the Platform. For the avoidance of doubt, analytics data shall be tracked only during the Term, shall be anonymized and/or aggregated, and may be used for Company’s internal business purposes, but shall       not be distributed to any third parties and shall not be associated with Customer specifically.
  • Customer hereby grants Company a limited, non-exclusive, non-assignable, non-sublicensable right and license to use and store the Client Data within the Platform during the Term of Customer’s Agreement solely to enable Customer’s use of the Services. Company claims no intellectual     property rights in the Client Data. Company does not pre-screen Client Data, but reserves the right in its sole discretion to refuse to display or remove any Client Data that Customer posts.
  • All fees are non-cancelable, non-refundable, and are based on the Services purchased and not based on usage of such Services by Customer. There shall be no rollover of unused fees or Services after the expiration of the Term of the applicable Order Form and/or SOW.

Service Level Agreement for the Marketing Orchestration Platform Service

1. SERVICE LEVELS

For the purposes of this Agreement, “available” or “availability” means that Customer and its authorized users are able to access the basic features of the software. Company will use commercially reasonable efforts to ensure that the level of system availability will be at an annual average of 99.9% of the time 24X7, and a monthly average of 99.0%. The foregoing averages exclude Planned Downtime, as defined below. The web browser access compatibility shall allow for utilization by the most recent version of Google Chrome.

Prioritization of Problem Responses

Problems will be addressed by Priority Levels determined by Company, and will be escalated to a progressively higher management level as required, and depending upon those priorities.  A description of these Priority Levels is as follows:

Priority Levels

Committed Response Time

Description of Problem

Priority 1

4 business hours

The highest priority level, this classification indicates a business-critical loss of service, or serious impairment to service, which cannot be circumvented.  Examples: Outages of hardware, software, network, or cannot access software or website

Priority 2

8 business hours

Critical loss of application functionality or performance, with an impact on business operations but the application is still functional.  Examples:  Task creation, pitch request, or comments are not working, or progression of a workflow is impeded etc. 

Priority 3

72 business hours

Moderate loss of application functionality, with possible business impact. Should be fixed at next maintenance release.

Priority 4

TBD, but less than 1 month

Minor loss of application functionality, product feature question, or cosmetic issue, with no significant business impact. Will be addressed at the earliest possible opportunity.

Escalation of Notification

  Management Level  

Priority 1

Priority 2

Priority 3

Priority 4

Customer Support Engineer

30 minutes

30 minutes

30 minutes

30 minutes

Customer Support Manager

1 hour

8 hours

26 hours

N/A

SVP of Customer Success & VP of Product

4 hours

12 hours

36 hours

N/A

CEO

8 hours

16 hours

N/A

N/A

2. MAINTENANCE OF SOFTWARE

Company shall provide maintenance and upgrades to the software during the hours of 8am and 8pm EST (the “Routine Maintenance Window”) unless deferral of such maintenance or upgrades to the Routine Maintenance Window would materially and adversely affect performance or security of Company’s network or data center. Company shall endeavor to perform such maintenance or upgrades in such a manner so as to not adversely impact Customer’s use of the software.  Notwithstanding the foregoing, planned downtime may occur when Customer has no access to the software due to scheduled maintenance and application upgrades (“Planned Downtime”).  To the extent possible, Company shall notify Customer as far in advance as practicable of any maintenance or upgrades outside of the Routine Maintenance Window.  Company shall provide error correction services, including programming changes to the software to correct reproducible errors therein.  Company will provide the following services without additional charge to Customer:

A. Promptly notify Customer of any substantial defects or malfunctions in the software impairing access of which it learns from any source, correct any such defects or malfunctions and provide Customer with corrected copies of same or provide a workaround until corrected within the time frames specified in Section 1;

B. Provide to Customer no later than the first day of general release, copies of updates to the software, including, without limitation, modifications to the software which can increase the speed, efficiency or base of operation of the software or add additional capabilities to or otherwise improve the functionality of the software;

C. Promptly update the software as required to remain compatible with current industry standard operating systems and hardware platforms.  

D. Provide to Customer all reasonably necessary telephone or written consultation requested by Customer in connection with its use and operation of the software or any problems therewith during the support hours specified in this Section 2; and

E. Respond to errors in the software identified by Customer within the time frames specified in Section 1.

3. BACK-UP

Company will maintain a complete and current copy of the software and Customer’s database on a server located at a remote backup site owned and maintained by Amazon Web Services – US East Region.  Company will provide access to the software for Customer 24×7 except during periods of maintenance, back-up and upgrade services, for which at least three (3) business hours prior written notice will be given to Customer.  Company will back up Customer’s database daily.  

4. SECURITY

During the term of the Agreement, Company shall, at a minimum, implement certain procedures designed to protect the security of Client’ Data and Customer’s Confidential Information:

A. User identification and access controls designed to limit access to the Client Data and other Customer Confidential Information to authorized users and to Company as otherwise permitted under the Agreement.

B. External connections to the internet will have appropriate security controls including industry standard intrusion detection and counter-measures that will detect and terminate any unauthorized activity prior to entering the firewall maintained by Company.

C. Industry standard firewalls regulating all data entering Company’s internal data network from any external source which will enforce secure connections between internal and external systems and will permit only specific types of data to pass through.

D. Industry standard security techniques will be used when Client Data and electronic forms of Customer’s confidential information are transmitted by Company on behalf of Customer.

E. Physical security measures including securing all Client and Customer’s Confidential Information on a secure server and locked data cabinets and within a secure facility.  Only authorized Company employees and agents will have physical access to such information.

F. Regular employee training regarding security and data recovery programs.

G. Regular testing of the systems and procedures outlined in this Section; and

H.  Audit controls that record and monitor software activity regularly.