Angle Technology
Master Services Agreement
THIS MASTER SERVICES AGREEMENT (“MSA”) IS ENTERED INTO AS OF THE EFFECTIVE DATE BETWEEN ANGLE TECHNOLOGY, INC. (“ANGLE) AND CUSTOMER (AS DEFINED BELOW) (“CUSTOMER”) AND FORMS PART OF THE AGREEMENT THAT GOVERNS CUSTOMER’S USE OF THE ANGLE SERVICES. UNLESS OTHERWISE INDICATED, CAPITALIZED TERMS HAVE THE MEANING ASSIGNED TO THEM IN THE AGREEMENT.
IF YOU ARE ENTERING INTO THIS MSA ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THAT ENTITY AND ITS AFFILIATES TO THIS MSA, IN WHICH CASE “CUSTOMER” WILL REFER TO THAT ENTITY. IF YOU DO NOT HAVE AUTHORITY TO BIND YOUR ENTITY OR DO NOT AGREE WITH ANY PROVISION OF THIS MSA, YOU MUST NOT ACCEPT THIS MSA AND MAY NOT USE THE ANGLE SERVICES.
1. Definitions. Defined terms used in this MSA are set out below. Capitalized terms used but not defined in an Exhibit or an Order Form will have the meaning assigned to them, if any, within MSA.
1.1 “Affiliate” of a party means an entity that controls, is actually or in effect controlled by, or is under common control with such party.
1.2 “Agreement” means this MSA, the referenced or attached Exhibits and addenda, and any accompanying or future Order Form(s) entered into by the Parties under this MSA.
1.3 “Angle Services” means the Angle membership software platform (“Angle Platform”), support services (“Support Services”), and implementation services (“Implementation Services”).
1.4 “Authorized User” means employees or agents of Customer or its Affiliates selected by Customer to access and use the Angle Platform.
1.5 “Beta Features” means any feature of the Angle Platform that is clearly designated as “beta”, “experimental”, “preview” or similar, that is provided prior to general commercial release, and that Angle in its sole discretion offers to Customer, and Customer in its sole discretion elects to use.
1.6 “Customer Content” means all content, data, and other information processed by Angle on Customer’s behalf in the course of providing the Angle Services.
1.7 “Documentation” means Angle’s standard usage documentation related to the Angle Platform that it provides to its customers generally.
1.8 “Fees” means all amounts payable for the Angle Services.
1.9 “Effective Date” means the earliest of (i) the effective date of the initial Order Form entered into by the parties that references this MSA; (ii) Customer’s first access to the Angle Services; or (iii) the date on which the MSA is fully executed by the parties.
1.10 “Intellectual Property Rights” means all worldwide intellectual property rights available under applicable laws including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, and know-how.
1.11 “Order Form” means an order form or similar agreement for the provision of Angle Services entered into by the parties or any of their Affiliates and incorporated by reference into, and governed by, the Agreement. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.12 “Prohibited Content” means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to Angle in its sole, but reasonable, discretion.
2.1 Angle Platform. Angle will make the Angle Platform available to Customer in accordance with the terms of the Agreement, the Documentation, and any applicable Order Form solely for Customer’s internal business purposes. Customer may permit Authorized Users to use the Angle Services on its behalf. Customer is responsible for provisioning and managing its Authorized Users accounts, for its Authorized Users actions through the Angle Services, and for their compliance with the Agreement. Customer will ensure that Authorized Users keep their user credentials confidential and will promptly notify Angle upon learning of any compromise to an Authorized User’s account or user credentials.
2.2 Third Party Platforms. In order to use the Angle Platform, Customer may have to register for one or more third-party platforms (“Third Party Platforms”). Customer’s access to and use of any Third Party Platform is governed by the terms provided by the Third Party Platform provider and not the Agreement. Customer is responsible for its compliance with such Third Party Platform terms and all actions performed in or through the Third Party Platform. Angle does not control and has no liability for Third Party Platforms, including their security, functionality, operation, availability, interoperability, or data privacy processes. If Customer enables a Third-Party Platform to integrate or otherwise operate in connection with the Angle Platform, Customer authorizes Angle to access and exchange Customer Content and any end-user data (including personally identifiable information) with the Third Party Platform on Customer’s behalf.
2.3 Support Services. Angle will provide Support Services to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm (Pacific), with the exclusion of holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling (503) 896-8612 or at any time by emailing support@angle.com.
2.4 Implementation Services. Angle will provide Implementation Services to Customer as set forth on the applicable Order Form. Angle will retain all right, title and interest in and to all work product and deliverables (including any and all intellectual property rights therein) provided to Customer during Implementation Services (“Deliverables”) except to the extent that they contain any pre-existing Customer intellectual property. Customer’s rights to the Deliverables shall be the same as Customer’s rights to the Angle Platform to which such Deliverables pertain.
2.5 Customer Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Angle Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.6 Beta Features and Free Trials. Angle may offer Customer optional free trials of the Angle Platform and Beta Features. Customer’s access to and use of any free trial of the Angle Platform and any Beta Features is permitted solely for Customer’s internal evaluation during the period designated by Angle on the applicable Order Form (or if not so designated, 30 calendar days). Either party may terminate Customer’s use of a free trial of the Angle Platform and the Beta Features at any time for any reason. The offered free trials of the Angle Platform and Beta Features may be inoperable, incomplete, or include features never released.
3.1 Use Limits. Customer shall not, directly or indirectly, (a) 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 Angle Services or any software, documentation or data related to the Angle Services (“Software”); (b) modify, translate, or create derivative works based on the Angle Services or any Software (except to the extent expressly permitted by Angle or authorized within the Angle Services); (c) sell, resell, license, sublicense, distribute, rent. lease, or use the Angle Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; or use the Angle Services in violation of any law or the rights of others; or (e) use the Angle Platform other than in accordance with the Documentation.
3.2 Customer Content. Customer will not include in Customer Content any data for which it does not have all rights, power, and authority necessary for its collection, use, and processing as contemplated by this Agreement.
3.3 Prohibited Content. Customer will not include in Customer Content any Prohibited Content.
4.1 Confidential Information. “Confidential Information” means any business or technical information disclosed by or on behalf of either party or their Affiliates to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, all non-public elements of the Angle Services are Angle’s Confidential Information, Customer Content is Customer’s Confidential Information, and the terms of the Agreement and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. Confidential Information will not include information that the receiving party can demonstrate (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information
4.2 Confidentiality. A receiving party will not use the disclosing party’s Confidential Information except as permitted under the Agreement or to enforce its rights under the Agreement and will not disclose such Confidential Information to any third party except to those of its employees, Affiliates and/or subcontractors who have a need to know such Confidential Information for the performance or enforcement of the Agreement; provided that each such employee, Affiliate and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 4.2 (Confidentiality). The receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to those that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable laws, subject to the party required to make such disclosure giving reasonable notice (if legally permitted to do so) to the other party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 4.2 (Confidentiality) will supersede any non-disclosure agreement by and between the parties (whether entered into before, on or after the Effective Date) and such agreement will have no further force or effect with respect to Customer Content.
4.3 Equitable Relief. Each party acknowledges and agrees that the other party may be irreparably harmed in the event that such party breaches Section 4.2 (Confidentiality), and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereto hereby agrees that the non-breaching party will be entitled to seek injunctive relief to prevent or stop such breach, and to obtain specific enforcement thereof. Any such equitable remedies obtained will be in addition to, and not foreclose, any other remedies that may be available.
5.1 Angle. Subject to the limited rights expressly granted to Customer hereunder, Angle reserves and retains, and as between Angle and Customer, Angle exclusively owns all rights, title, and interest in and to the Angle Services, including, all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Angle hereunder other than as expressly set forth herein.
5.2 Customer. As between Customer and Angle, Customer owns all rights, title, and interest in and to Customer Content. Customer hereby grants to Angle during the Term a worldwide, non-exclusive, fully paid, and royalty-free right and license (with rights to sublicense solely to Third Party Platform providers that require such transferred Customer Content to assist Angle in its delivery of the Angle Services), to access, use, copy, create derivative works from, distribute, perform, and display Customer Content solely to provide the Angle Services to Customer.
5.3 Usage Data. Notwithstanding anything to the contrary, Angle shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Angle Services and related systems and technologies and Angle will be free (during and after the term hereof) to (a) use such information and data to improve and enhance the Angle Services and for other development, diagnostic and corrective purposes in connection with the Angle Services and other Angle offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business.
5.4 Feedback. Customer may provide suggestions, enhancement requests, or other feedback to Angle regarding the Angle Services (“Feedback”). If Customer elects to offer Feedback to Angle, it hereby grants to Angle a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Services or otherwise use any Feedback it receives from Customer solely to improve Angle’s products and services, provided that such Feedback is used in a manner that is not attributable to Customer. Customer irrevocably waives in favor of Angle any moral rights which it may have in such Feedback pursuant to applicable copyright law.
7.1 Angle Indemnification. Angle will defend Customer from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Angle Platform as permitted hereunder infringes or misappropriates such third party’s Intellectual Property Rights, and Angle will indemnify Customer for any damages and any reasonable attorneys’ fees finally awarded against it or as part of a settlement arising from such lawsuit or proceeding; provided, however, that Angle will have no liability under this Section 7.1 to the extent any such lawsuit or proceeding arises from: (a) the combination, operation or use of the Angle Platform with equipment, devices, software or data not supplied by Angle; or (b) Customer’s or an Authorized User’s use of the Angle Platform other than in accordance with the Documentation and the Agreement; or (c) any modification or combination of the Angle Platform that is not performed by Angle. If Angle receives information about an infringement or misappropriation claim related to the Angle Platform or otherwise becomes aware of a claim that the provision of the Angle Platform is unlawful in a particular territory, then Angle may at its sole option and expense: (a) replace or modify the Angle Platform to make it non-infringing and of substantially equivalent functionality; (b) procure for Customer the right to continue using the Angle Platform under the terms of the Agreement; or (c) if Angle is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate the Agreement and refund to Customer any prepaid Fees prepaid, but unused Fees for the Angle Platform.
7.2 Customer Indemnification. Customer will defend Angle from and against any lawsuit or proceeding brought by a third party to the extent (a) alleging that Customer’s use of the Angle Services is in violation of any applicable laws, the rights of a third party, or the Agreement; and (b) arising from or related to Customer Content or its use with the Angle Services, and Customer will indemnify Angle for any damages and any reasonable attorneys’ fees finally awarded against it or as part of a settlement arising from such lawsuit or proceeding.
7.3 Sole Remedy. SUBJECT TO SECTION 7.4 (CONDITIONS OF INDEMNIFICATION), THE FOREGOING SECTIONS 7.1 (ANGLE INDEMNIFICATION) STATE THE ENTIRE OBLIGATION OF ANGLE AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE ANGLE PLATFORM.
7.4 Conditions of Indemnification. As a condition to an indemnifying party’s (each, an “Indemnitor”) obligations under this Section 7 (Indemnification), a party seeking indemnification (each, an ”Indemnitee”) will: (a) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification (but late notice will relieve Indemnitor of its obligation to indemnify only to the extent that it has been prejudiced by the delay); (b) grant the Indemnitor sole control of the defense (including selection of counsel) and settlement of the claim; (c) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim; and (d) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim in a manner that does not fully discharge the claim against an Indemnitee or that imposes any obligation on, or restricts any right of, an Indemnitee without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND SO FAR AS PERMITTED BY LAW, ANGLE OFFERS NO WARRANTY, INDEMNITY, SLA, OR SUPPORT SERVICES FOR FREE TRIALS OF THE ANGLE PLATFORM OR THE BETA FEATURES AND ANGLE’S AGGREGATE LIABILITY RELATING TO ALL FREE TRIALS OF THE ANGLE PLATFORM AND THE BETA FEATURES WILL NOT EXCEED ONE THOUSAND DOLLARS (USD $1,000).
10.1 Termination for Cause. Either party may terminate the Agreement, effective thirty days’ after written notice, if the other party materially breaches the Agreement and such breach is not cured within such thirty day period.
10.2 Effects of Termination. Upon termination of the Agreement, (a) Customer and all Authorized Users must immediately cease all use of the Angle Services; (b) Customer will pay all Fees payable to Angle for the period of time prior to the effective date of such termination; and (c) Angle will make Customer Content available to Customer for electronic retrieval for a period of thirty days, but thereafter Angle may, but is not obligated to, delete Customer Content.
10.3 Survival. All sections of the 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.
11.1 Mutual Representations. Each party represents that it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into the Agreement.
11.2 Angle Warranties. Angle warrants that: (a) the Angle Platform will perform materially in accordance with the applicable Documentation; and (b) it will perform the Support Services and the Implementation Services in a professional manner. If Angle breaches any of the foregoing warranties in this Section 11.2, Customer’s exclusive remedy and Angle’s entire liability will be the correction of the breach, or if Angle cannot substantially correct the breach within a commercially reasonable amount of time, Customer may terminate the Agreement.
11.3. Customer Warranties. Customer warrants that: (a) it has obtained and will maintain all rights, consents, and permissions necessary for Customer and the Authorized Users to make available to Angle, and for Angle to use as contemplated herein, all Customer Content; and (b) the Customer Content will not infringe, misappropriate, or otherwise violate any intellectual property, privacy, publicity, or other proprietary rights of any person, or violate any applicable laws or government regulations.
11.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 11.2, THE ANGLE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND ANGLE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ANGLE DOES NOT WARRANT THAT THE ANGLE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL MEET CUSTOMER’S REQUIREMENTS.
12.1 By Angle Generally. Angle will provide the Angle Services in accordance with its obligations under laws and government regulations applicable to Angle’s provision of the Angle Services to its customers generally, including, without limitation those related to data protection and data privacy, irrespective of Customer’s particular use of the services.
12.2 By Customer Generally. Customer will use the Angle Services in compliance with all applicable laws and government regulations, including without limitation those related to data protection and data privacy.
12.3 Export Control; Trade Sanctions. The Angle Services may be subject to export controls and trade sanctions administered or enforced by the United States and other jurisdictions. Customer will comply with all applicable export controls and trade sanctions laws, regulations and/or any other relevant restrictions in Customer’s use of the Angle Services, including not permitting access to or use of any Angle Services in any country where such access or use is subject to a trade embargo or prohibition and not using the Angle Services in support of any controlled technology, industry, or goods or services, or any other restricted use, without having a valid governmental license, authority, or permission to engage in such conduct. Each party further represents that it (and with respect to Customer, each Authorized User and / or Affiliate accessing the Angle Services) is not named on any governmental or quasi-governmental denied party or debarment list relevant to this Agreement and is not owned directly or indirectly by persons whose aggregated interest in such party is 50% or more and who are named on any such list(s).
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