Services Agreement

BEFORE USING THE IMPROVADO.IO PLATORM OR RECEIVE PROFESSIONAL SERVICES, PLEASE READ THESE TERMS OF SERVICE.  THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM AND/OR STATEMENT OF WORK (“SOW”) EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (THE “CUSTOMER”) AND IMPROVADO, INC. (“IMPROVADO”). PURSUANT TO THESE TERMS, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE IMPROVADO.IO PLATFORM AND/OR RECEIVE PROFESSIONAL SERVICES FROM IMPROVADO.  THESE TERMS, THE ORDER FORM AND STATEMENT OF WORK TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND IMPROVADO, EFFECTIVE AS OF THE LAST DATE OF EXECUTION OF THE ORDER FORM (THE “AGREEMENT”).

1.  The Services. Improvado delivers Software-as-a-Service on a subscription basis of its proprietary automated marketing reporting platform known as “Improvado.io”. Improvado will make Improvado.io available to: (a) Customer, and (b) individuals who are authorized by Customer to use Improvado.io on behalf of the Customer and who have been supplied user identification and passwords by Customer, including employees, consultants, contractors, and agents of Customer (“Users”).  Improvado hereby grants Customer and its Users a limited, non-exclusive right to access Improvado.io and receive support during the Subscription Term, including the specific access rights and limitations set forth in the Order Form (the “Subscription”). Professional services may be purchased by Customer at Improvado’s then current rates and shall be detailed in the corresponding SOW (the “Professional Services”).  The Subscription and the Professional Services collectively referred to as the “Services”.  The Subscription is granted solely to the Customer and its Users, and not any other third parties (including any of Customer’s Affiliates), except if expressly authorized by Improvado in the Order Form.  Affiliates may purchase additional Subscriptions from Improvado by issuing Order Forms hereunder. The Subscription is sold “As Is” and is not dependent on any future functionality or features (or any public comments or other verbal disclosures made by Improvado with respect thereto).

2. Confidentiality Obligations.  As used herein, "Confidential Information" means all confidential information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that is designated in writing as confidential as well as the terms and conditions of the Order Form and the SOW. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.

3.  Fees and Taxes. Customer shall pay to Improvado the fees specified in the Order Form and SOW (the “Fees”).  Except as otherwise provided in the Order Form or SOW, all Fees are quoted in US currency; Fees are based on Subscriptions purchased; payment obligations are non-cancellable; and Subscription Fees are non-refundable, except as provided in this Agreement. Fees will be invoiced in advance or in accordance with the terms of the Order Form or SOW. Fees are due within 30 days from the invoice date or as specifically set forth in the Order Form.  If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the right to charge late fees at the maximum rate permitted by law, and the termination rights set forth in this Agreement), Improvado reserves the right to suspend Improvado.io (upon prior written notice) without liability to Improvado until such account is paid in full. Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than Improvado's income taxes.  If Improvado pays any such taxes on the Customer's behalf, Customer agrees to reimburse Improvado for such payment unless Customer provides Improvado with a valid exemption certificate authorized by the appropriate taxing authority.

4.  Proprietary Rights. Improvado.io and all intellectual property rights therein, and all intellectual property rights relating to the provision of support and the Services are owned or licensed by Improvado.  Except for the license granted hereunder, nothing in this Agreement gives Customer any right, title or interest to Improvado.io and/or the Professional Services.  Customer shall retain all right, title, and ownership in and to the reports generated through the use of Improvado.io and any Work Product specifically stated as such in the SOW.  Notwithstanding, Customer acknowledges that in generating reports and providing the Services, Improvado may use certain materials, products, algorithm processing, training material, best practices and other property that belongs to Improvado ("Improvado Property").  The parties agree that Improvado shall retain all right, title, and ownership in and to the Improvado Property, including all intellectual property rights pertaining thereto. Improvado hereby grants to Customer a royalty-free, worldwide, non-exclusive, license to use the Improvado Property solely for internal business purposes. Customer shall not: (i) modify, translate, or create derivative works based on Improvado.io or the Professional Services; (ii) create any link to Improvado.io or frame or mirror any content contained or accessible from Improvado.io, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Improvado.io; (iv) or access Improvado.io in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of Improvado.io in order to compete with or cause damage to Improvado.

5. Term. Customer’s initial Subscription term for Improvado.io commences on the date stated in the Order Form (the “Start Date”).  The Subscription will continue for the Subscription term specified in the Order Form (the “Term”) and may be renewed as detailed in the Order Form.

6.  Termination. The Services may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either 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.

7.  Early Termination. If Customer wishes to terminate the Subscription prior to the expiration of the then current Term and such termination is not due to Improvado’s breach, all Subscription Fees that would otherwise be due up until the expiration of the Term in effect at the time shall be due and payable within thirty (30) days of the effective date of termination and no refunds for pre-paid Fees will be provided. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty. Professional Services may be terminated in accordance with the SOW.

8.  Surviving provisions.  The following provisions shall survive any termination or expiration of the Subscription: Sections 2, 4, 9, 10, 11, 12, 13, 17, 18 ,19 and 20.

9.  Corporate Authority.  Each party represents and warrants that: (i) it has the legal power and authority to enter into this Agreement; (ii) that the Agreement is executed by an employee or agent of such party with all necessary authority to bind such party; and (iii) that each party shall comply with all applicable laws and regulations in the compliance of this Agreement.

10. Functionality Warranty. Improvado warrants that Improvado.io will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of any applicable documentation provided by Improvado, including the Service Level Agreement.

11. Data Security and Warranty.  Improvado has implemented Appropriate Security Measures and maintains Improvado.io at reputable third-party Internet service providers and co-location facilities. "Appropriate Security Measures" means commercially reasonable efforts to ensure that the Customer Content (as defined below) will be maintained accurately as well as technical and physical controls to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Improvado, whether by accident or otherwise.

12. Additional Warranties. Improvado represents and warrants that: (i) the Professional Services will be provided in a professional, timely and workman like manner by persons with the proper skill, training and background, and consistent with generally accepted industry standards; (ii) the Professional Services will comply with all written specifications; (iii) the Professional Services will be free of material defects; (iv) Improvado’s technology shall not deliver any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate the contents of any databases and/or the normal operation of any computer systems (“Malicious Code”); (v) at the time of delivery, all documentation required hereunder (if any) shall be complete so as to enable Customer’s personnel with ordinary skills and experience to utilize Improvado.io and the Professional Services for the purposes for which they are being acquired by Customer, (vi) Improvado will at all times utilize reasonable and appropriate practices and technologies common and prevalent in Improvado’s industry to avoid causing damage to Customer’s computer systems or other technology; and (vii) Improvado will comply with all applicable laws and regulations.

13. Disclaimer. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis.  Other than as expressly provided herein, IMPROVADO DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW.  IMPROVADO DOES NOT WARRANT THAT IMPROVADO.IO, OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.  FURTHER, IMPROVADO DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED.  

14. Customer's Content. Customer retains all rights, title and interest in and to any information uploaded into Improvado.io and/or provided in connection with the Professional Services (except for the Improvado Property) as well as Customer’s Confidential Information (“Customer’s Content”).  Customer is responsible for the collection of the Customer Content. Customer acknowledges Improvado’s Privacy Policy available at https://improvado.io/company-legal/privacy-policy. Upon written request by Customer made within 30 days after the effective date of termination, Improvado will provide Customer with temporary access to Improvado.io so that Customer can retrieve its Customer Content.  After such 30-day period, Improvado shall have no obligation to maintain or provide any Customer Content and shall thereafter, unless legally prohibited, delete all Customer Content in Improvado’s systems (the “Systems”) or otherwise in its possession or control.

15. Other Networks; Approval and Usage. The Services may integrate and/or may include the ability to access Customer Content through third party networks, including social media websites, including but not limited to YouTube (“Third-Party Sources”). If the Services integrate with YouTube's API Services to provide additional features and functionalities, Customer agrees to be bound by YouTube’s terms found at https://www.youtube.com/t/terms.  Customer also acknowledges that use of Third-Party Sources may require approval of the owners or operators of such Third-Party Sources and will be subject to any acceptable usage policies such Third-Party Sources may establish. Improvado will not be liable for any failure to obtain such approval or any violation by Customer of such policies. Customer understands that Improvado does not own or control Third-Party Sources and agrees that Improvado shall not be responsible or liable for the performance or non-performance of Third-Party Sources or within interconnection points between the Improvado.io Platform, the Services and such Third-Party Sources.

16. Use Guidelines. Customer shall use Improvado.io for internal business purposes as contemplated by this Agreement and shall not: (i) willfully tamper with the security of the Systems or tamper with other customer accounts of Improvado, (ii) access data on the Systems not intended for Customer, (iii) log into a server or account on the Systems that Customer is not authorized to access or otherwise translate any underlying software in Improvado.io in such a manner that it appears to be part of Customer’s own or a third party website, (iv) attempt to probe, scan or test the vulnerability of any Systems or to breach the security or authentication measures without proper authorization; (v) wilfully render any part of the Systems unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit Improvado.io or make Improvado.io available to a third party other than as contemplated in this Agreement; (vii) attempt to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms in Improvado.io; (viii) share Improvado.io with any third party not explicitly authorized by Improvado or otherwise for the benefit of a third party; (ix) provide to third parties any evaluation version of Improvado.io without Improvado's prior written consent; or (x) deep link to any page of Improvado.io or otherwise link in a manner that bypasses Improvado’s homepage for Improvado.io.

17. Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

18. Indemnification.  Improvado shall indemnify, defend and hold Customer harmless against any loss, damage or cost (including reasonable attorney’s fees and costs) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of Improvado.io or the Professional Services, as contemplated hereunder, infringe the intellectual property rights of a third party.  Notwithstanding the foregoing if Improvado reasonably believes that Customer's use of any portion of Improvado.io is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Improvado may, at its expense: (i) procure for Customer the right to continue using Improvado.io; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of Improvado.io as set out herein. Improvado shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of Improvado.io or the Professional Services with other equipment or software not supplied by Improvado or in a manner not consistent with Improvado’s instructions.

19. Mutual Provisions.  Each party's indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.

20. General Provisions. This Agreement, inclusive of the Order Forms, SOW and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between Customer and Improvado with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. Customer agrees that Improvado may use Customer’s name and logo on Improvado’s website, and as a part of a general list of Improvado's customers for use and reference in corporate, promotional and marketing literature with Customer’s prior written consent. The parties are independent contractors.  Neither party will be liable for a delay in performing its obligations under this Agreement to the extent that delay is caused by insurrection, war, riot, explosion, nuclear incident, fire, flood, earthquake, or other catastrophic event beyond the reasonable control of the affected party, provided the affected party immediately notifies the other party and takes reasonable and expedient action to resume operations. Neither party shall assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate reorganization, merger or acquisition, provided the assignee agrees in writing to be bound by the terms of this Agreement, and is not a direct competitor of Customer. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns. This Agreement does not create a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or representative of the other party. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party.  No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement.  The parties shall attempt in good faith to resolve any claim or dispute concerning this Agreement prior to the commencement of litigation.  Upon the written request of either party, each of the parties will appoint a designated representative who does not devote substantially all of his or her time to the performance of this Agreement, whose task it will be to meet for the purpose of attempting to resolve the dispute.  The designated representatives will meet in person or by telephone, as often as reasonably necessary, to gather and furnish to the other all information with respect to the matter in issue and which is pertinent to the understanding or resolution of the dispute.  The representatives will discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding.  The specific format for the discussions will be left to the discretion of the designated representatives.  If the designated representatives do not resolve the dispute within thirty (30) days of receipt of written notice of the dispute, then an executive officer of Improvado and an officer of Customer will meet in person or by telephone to review and attempt to resolve the dispute prior to the commencement of litigation. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Notices regarding: (a) material changes to this Agreement; (b) internal or external changes materially impacting Improvado’s ability to do business; (c) breach; (d) termination; or (e) any other material information required to be in writing, will be in writing and deemed to have been given if delivered personally, by confirmed email, or on the third day after mailing by first-class, registered or certified mail, postage prepaid to either party at the address provided by Customer in the Order Form; for Improvado at:_________________, attention: CEO and CRO; or to such other address as a party may, from time to time, communicate to the other party. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.