MASTER SUBSCRIPTION AND SERVICES AGREEMENT
THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT GOVERNS PRIVACYCHECK’S DELIVERY OF SERVICES TO CUSTOMER AS FURTHER DESCRIBED IN THE APPLICABLE SUBSCRIPTION ORDER FORM. CUSTOMER’S EXECUTION OF THE SUBSCRIPTION ORDER FORM CONSTITUTES ITS ACCEPTANCE TO THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT. INDIVIDUALS ACCEPTING THE SUBSCRIPTION ORDER FORM AND THE MASTER SUBSCRIPTION AND SERVICES AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, REPRESENT THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THEM.
This Master Subscription and Services Agreement, the applicable Subscription Order Form(s) and any other exhibits or documents expressly incorporated into them (collectively the “Agreement”) is by and between the entity or individual designated as the Customer and signatory on the Subscription Order Form (“Customer”), and PRIVACYCHECK, INC., a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business at 1555 Broadway Street, Detroit, Michigan 48226 (“PrivacyCheck”) (collectively referred to as the “Parties” and individually to as a “Party”). The Agreement is effective as of the Effective Date set forth in the applicable Subscription Order Form executed by Customer (the “Effective Date”)
“Customer Data” means electronic data and information submitted by or for Customer in connection with the Services.
”Subscription Order Form” means the document that expressly incorporates this Master Subscription and Services Agreement signed by PrivacyCheck and Customer, and sets forth the terms, pricing and Services to be provided under the Agreement between PrivacyCheck and Customer.
“Services” means the services that are ordered by Customer under a Subscription Order Form.
“Term” means the definition set forth in Section 9.1 of this Master Subscription and Services Agreement.
“Member” means an individual who is authorized by Customer to use the Services (e.g., Customer’s employees), for whom Customer has purchased a subscription (or in the case of any Services provided by PrivacyCheck through a free trial, for whom a Service has been provisioned).
2. PRIVACYCHECK RESPONSIBILITIES
2.1 Services. PrivacyCheck will (a) make the Services available to Customer pursuant to this Agreement as stated in the applicable Subscription Order Form, (b) provide qualified personnel with the skills and expertise to help perform the Services, and (c) provide the Services in compliance with all Applicable Laws. “Applicable Laws” means all applicable federal, state and local statutes, legislation, directives, regulations, rules, orders and requirements of any regulatory authority, court or other foreign or domestic governmental body, as applicable. PrivacyCheck may utilize subcontractors or other third-parties to perform certain obligations under the Agreement provided that such arrangements do not relieve PrivacyCheck of its obligations under the Agreement.
3. FEES AND PAYMENT TERMS
3.1 Subscription Fees. The Services shall be purchased as subscriptions with the pricing set forth in the applicable Subscription Order Form. All subscription fees paid are non-refundable. Customer will reimburse PrivacyCheck for reasonable out-of-pocket expenses incurred by PrivacyCheck and its personnel in connection with its performance of the Services. PrivacyCheck will provide Customer with reasonably detailed invoices for such expenses on a monthly basis and Customer agrees to pay the total amount shown as due on each invoice within thirty (30) days of receipt.
3.2 Payment Terms. PrivacyCheck will invoice Customer in accordance with the applicable Subscription Order Form. Customer will pay all fees and expenses due to PrivacyCheck in US dollars no later than thirty (30) days after receiving it from PrivacyCheck. If Customer provides credit card information to PrivacyCheck, Customer authorizes PrivacyCheck to charge such credit card for the Services listed in the Subscription Order Form. All charges shall be made in advance, monthly, or annually, or in accordance with any different billing frequency stated in the applicable Subscription Order Form. If Customer fails to make any payment when due, without limiting PrivacyCheck’s other rights and remedies: (i) PrivacyCheck may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse PrivacyCheck for all reasonable costs incurred by PrivacyCheck in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for fifteen (15) business days or more, PrivacyCheck may suspend Customer’s Services until such amounts are paid in full.
3.3 Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on PrivacyCheck’s income.
3.4 Free Trial. If the applicable Subscription Order Form provides for a free trial period, PrivacyCheck will make the applicable Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period as specified in the applicable Subscription Order Form, or (b) when terminated by PrivacyCheck in its sole discretion. Additional terms and conditions may be specified on the Subscription Order Form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. During any free trial period, the Services are provided “as-is” without any representation or warranty whatsoever. PrivacyCheck’s indemnity obligations set forth in the Agreement shall not apply with respect to any Services provided within the free trial period.
The minimum age to create an account on this platform is 18 years of age. If you are under 18 years of age, please do not attempt to register or otherwise use the Services or send us any personal information. To use our Services, you will be required to sign up for an account, select a password and user name (“PrivacyCheck User ID”), and provide us with certain information or data, such as your first name, last name, personal email address, telephone number and zip code. You may as “head of household” also register your spouse or partner (with his/her consent), or child or children for the Services (which in the case of children, provides them read only access to information that we retrieve about them), provided that, you will not attempt to register any child or children between the ages of 13-18. As head of household, you: (a) will have administrative rights to your family member’s accounts, but may not access your spouse or partner’s search results without their consent; and (b) you may access your child or children’s account(s) to review their search results. You hereby represent and warrant that you are the parent or legal guardian of the child or children specified for any account that you create on behalf of such child or children. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your PrivacyCheck User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. We may also request you to verify your identity using personally identifiable information in order to access your digital footprint search results as part of our Services.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”), such as those offered by Google and Facebook. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Services for your own internal, personal (including your immediate family members, provided that they have consented to the creation of an account on their behalf, or you are their legal guardian), use, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your PrivacyCheck User ID, account or password with anyone, and you must protect the security of your PrivacyCheck User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your PrivacyCheck User ID and account.
4. ACCESS, USE AND RIGHTS
4.1 Intellectual Property and Other Rights. Customer acknowledges that, as between Customer and PrivacyCheck, PrivacyCheck owns all right, title, and interest, including all intellectual property rights, in connection with the Services, and any and all intellectual property provided to Customer or any Member in connection with the Services. PrivacyCheck reserves all rights not expressly granted to Customer in this Agreement. Nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services.
4.3 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to PrivacyCheck by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), PrivacyCheck is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to PrivacyCheck on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all rights, title, and interest in the Feedback, and PrivacyCheck is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although PrivacyCheck is not required to use any Feedback.
5.1 Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other means that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of PrivacyCheck including the Services, and the terms and conditions of the Agreement, including all Subscription Order Forms (and pricing), or other forms or media (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or contractors who have a legitimate need to know the Confidential Information, and that are under a contractual or legal duty maintaining protections not materially less protective of the Confidential Information than what is provided for in this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and, upon request, certify in writing to the disclosing Party that such Confidential Information has been destroyed.
6. REPRESENTATIONS AND WARRANTIES
6.1. Representations and Warranties. Each party represents and warrants to the other Party that:
6.1.1. The execution, delivery and performance of the obligations undertaken in this Agreement have been duly authorized.
6.1.2. The execution and delivery of the Agreement, and the performance of its obligations hereunder shall not cause either Party to violate any binding agreements or any Applicable Laws.
6.1.3. It is duly licensed, incorporated, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required to perform the obligations under this Agreement.
6.1.4. It shall during the Term comply with all Applicable Laws, and not infringe or violate the Intellectual Property Rights of any third party.
7.1. PrivacyCheck Indemnification. PrivacyCheck shall indemnify, defend, and hold harmless Customer and each of its directors, officers, employees or agents from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights held in the United States (i.e., United States patents, copyrights, or trade secrets). This shall not apply to the extent that the alleged infringement arises from use of the Services in combination with data, software, hardware, equipment, or technology not provided by PrivacyCheck or modifications to the Services not made by PrivacyCheck. If such a claim is made or appears possible, Customer agrees to permit PrivacyCheck, at PrivacyCheck’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If PrivacyCheck determines that neither alternative is reasonably available, PrivacyCheck may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately without further liability upon written notice to Customer.
7.2. Customer Indemnification. Customer shall indemnify, defend and hold harmless PrivacyCheck and each of its directors, officers, employees or agents from and against any Losses resulting from (i) Customer’s use of the Services; (ii) Customer’s breach of this Agreement including any breach by Customer of the Agreement’s representations and warranties; or (iii) any Third-Party Claim alleging infringement or misappropriation of any third party’s intellectual property rights.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
8. LIMITATIONS OF LIABILITY, DISCLAIMERS
8.1. Limitation of Liability. IN NO EVENT WILL PRIVACYCHECK OR ANY OF ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
PRIVACYCHECK’S TOTAL AGGREGATE MONETARY LIABILITY TO CUSTOMER UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO PRIVACYCHECK IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PROCEEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
8.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS-IS” AND PRIVACYCHECK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, PRIVACYCHECK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR ACHIEVE ANY INTENDED RESULT.
9. TERM AND TERMINATION
9.1. Term and Termination. The term of this Agreement begins on the Effective Date and continue for the term set forth in the applicable Subscription Order Form (the “Initial Term”), and unless terminated earlier pursuant to this Agreement’s express provisions, will be renewed automatically for succeeding terms of one (1) month or one (1) year, depending on the specifications set forth in the applicable Subscription Order Form (each a “Renewal Term” and together with the Initial Term, the “Term”). Either Party must give the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term to avoid a successive Renewal Term.
9.2 Termination. PrivacyCheck may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after PrivacyCheck’s delivery of written notice of such failure. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, all of Customer’s Services, including all outstanding requests for any Services, shall be immediately discontinued. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund.
9.4 Surviving Provisions. The sections titled ‘Access, Use and Rights,” “Confidentiality,” “Representations and Warranties” “Indemnification,” “Limitation of Liabilities; Disclaimers,” “Term and Termination,” “Surviving Provisions,” “General Provisions,” and subsection 3.4 Free Trial will survive any termination or expiration of this Agreement.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by PrivacyCheck. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that PrivacyCheck is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that PrivacyCheck shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that PrivacyCheck is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release PrivacyCheck, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
10. GENERAL PROVISIONS
10.1 Export Compliance. PrivacyCheck and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any Member to access or use the Services in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea) or in violation of any U.S. export law or regulation.
10.3 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
10.4 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
10.5 Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise in any one or more instances, will be deemed to be construed as a further or continuing waiver of such term, provision or condition or of any other term, provision or condition of this Agreement.
10.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.7 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered by electronic mail; (ii) one (1) business day after deposit with an internationally-recognized express courier (e.g., Federal Express, UPS or DHL), with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the address set forth above for Privacy Check, and sent to the address set forth in the Subscription Order Form for Customer, or to such other address as may be specified by either Party to the other Party in accordance with this Section.
10.8 Injunctive Relief and Specific Performance. The Parties agree that a breach of Sections titled “Access, Use and Rights” and “Confidentiality”, or the scope of any of the licenses granted hereunder, may result in irreparable and continuing damage to the non-breaching Party for which there may be no adequate remedy at law, and such Party is therefore entitled to injunctive relief and specific performance as well as such other relief as may be appropriate.
10.9 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
10.10 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Michigan in each case located in the city of Detroit and County of Wayne, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
10.11 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement.