Master Subscription Agreement
1. Contract Structure
- This Master Subscription Agreement (“Agreement”) is entered into between Colony Networks Inc. (“Colony”) and the customer (“Customer”) identified on the first Service Agreement signed by both parties referencing this Agreement (“Order”), effective as of the effective date identified on that Order (“Effective Date”).
- This Agreement and all Orders govern Customer’s access to and use of Colony’s Service, and Statements of Work (“SOW”) govern any Professional Services Colony provides to Customer. Customer and Colony may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.” In the event of any conflicts between this Agreement, any Order, and/or any SOW, the following order-of-precedence applies: SOW take precedence and prevail over Orders solely with respect to the subject matter of SOW; and Orders and SOW take precedence and prevail over this Agreement solely with respect to their respective subject matter.
- THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN COLONY AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER, CLICKING “ACCEPT,” OR ACCESSING OR USING ANY COLONY SERVICE. BY SIGNING AN ORDER, OR ACCESSING OR USING ANY COLONY SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, COLONY’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY COLONY SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S CONSENT TO THIS AGREEMENT.
- Ownership of the Service. The Service is the property of Colony, and is protected by copyright, patent, trade secret and other intellectual property laws. Colony and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order(s). All rights not expressly granted to Customer are reserved and retained by Colony and its licensors.
- Ownership of Customer Data. As between Customer and Colony, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof. Colony has the right to use the Customer Data to improve its products and services, and retain certain Customer Data in anonymous and aggregate form for internal analytics purposes.
3. Service Use and Grant of Rights
- Subject to the terms and conditions of this Agreement, Colony hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide, royalty-free right to access and use the Service during the Service Term in accordance with the terms of this Agreement and all applicable Order(s) and SOW (e.g., any usage volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein).
- Customer is permitted to use the Service for their own internal benefit. Customer will not sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, unless expressly stated otherwise in a specific Service Agreement that defines the nature and conditions of such use.
- Customer agrees that the Customer will use the Services only in compliance with applicable laws and regulations.
4. Customer Responsibilities
- Customer Responsible for User Accounts. Customer is responsible for all activity occurring under Customer’s User accounts (except to the extent any such activity is caused by Colony), and for complying with all laws and regulations applicable to Customer’s use of the Service. Customer also must (a) notify Colony promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify Colony promptly upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying, distribution or other misuse of any aspect of the Service, and (c) input accurate and complete customer information into the Service in the established standard format and in accordance with the specifications set forth in the documentation therefor.
- Use Restrictions. Customer must not, without Colony’s prior written consent, either directly or indirectly cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement (Customer may allow its own customers to access the functionality or output of the Service, via interfaces, portal applications and the like, solely for Customer’s internal business purposes in accordance with the applicable Order); (b) creation of any modifications, translations or derivative works of the Service; (c) reverse engineering, decompiling, disassembly or attempted discovery of the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (other than in the context of a security audit); (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; (g) sending, storing or use of any infringing, obscene, threatening, libelous or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any illegal spam, or any material that is harmful to children or violates any third party privacy rights). Customer also must use reasonable security measures to access the Service, and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service. Colony also reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Service (e.g., by temporarily suspending access by anyone who introduces malicious code or attempts to do so), notwithstanding anything to the contrary in this Agreement; or (h) ; removal of any proprietary notices or labels.
- Customer PCI Responsibilities. If Customer or its third party service provider processes any credit card information using the Service, Customer (and/or such service provider, as applicable) will: (a) comply with their responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS”); (b) implement and maintain reasonable security measures to protect all cardholder data in their possession or control; and (c) not take any action in connection with using the Service that places Colony in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Service).
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the 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.
5. Privacy, Security, Customer Data, Continuity & Support
- Compliance with Privacy Laws. Colony and Customer will at all times comply with all Privacy Laws. Colony will only use Customer Data in the manner permitted by this Agreement and all Privacy Laws; provided, however, that: (a) Customer hereby authorizes Colony and its Affiliates to use Customer Data solely to provide the Service to Customer and otherwise meet Colony’s obligations under this Agreement, including engaging subprocessors and contractors to provide the Service to Customer in accordance with this Agreement (Colony remains liable for such Affiliates’, subprocessors’ and contractors’ compliance with this Agreement); and (b) Customer hereby warrants that, to the extent required by Privacy Laws applicable to Colony’s provision of the Service to Customer and the parties’ respective obligations under this Agreement, Customer has provided all proper notices under Privacy Laws and obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order to grant the authorizations in Section 5.1(a) and to use the Service in the manner contemplated by this Agreement.
Notwithstanding anything to the contrary in this Agreement, if (i) complying with any Privacy Laws would materially change Colony’s costs or risks in providing the Service (including, without limitation, by requiring that any Colony data centers be located in specific locations, or requiring Colony to operate in violation of any Canadian laws), and (ii) after the Parties’ respective legal counsel meet to discuss the problem, Colony provides written notice that it does not wish to incur such costs or risks, then each Party will have the right to terminate this Agreement (including all Order Forms and SOW) in writing within thirty (30) days after Colony provides such written notice – in which case the termination will be effective thirty (30) days thereafter. In the event of such a termination, Customer’s sole right and Colony’s sole obligation (except to the extent otherwise expressly stated in this Agreement) will be for Colony to promptly refund to Customer, on a pro rata basis, any Fees paid under all Orders and SOW then in effect that are unused as of the termination effective date.
- Unless otherwise mutually agreed to in writing by the Parties, the Service will be hosted in Colony’s public cloud-hosted data centre(s).
- Security of the Service. Throughout the term of this Agreement, Colony will maintain a data security program for the Service that will: (a) include reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data processed or stored by the Service; and (b) include reasonable and appropriate controls pursuant to Colony’s standards of internal control. Colony will be responsible for unauthorized access and damage to, and for unauthorized deletion, destruction and loss of, Customer Data solely to the extent arising from Colony’s breach of its obligations under this Agreement.
- Business Continuity & Disaster Recovery. Colony will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service.
- Data Retention. Regardless of the basis for expiration or termination of this Agreement, Colony will not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination, unless otherwise agreed in advance by the Parties in writing.
- Support & Service Level Agreement. Colony will provide technical support for the Service in accordance with Exhibit A to this Agreement (Support & Service Level Agreement) as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.
6. Term & Termination
1. Term of Agreement. This Agreement will begin on the Effective Date and continue in effect until all Orders and SOW expire or are terminated in accordance with this Agreement (e.g., Section 6.2.2), which may be done concurrently with termination of this Agreement.
2. Term of Order Forms. The term of each Order Form will be set forth therein, starting on the Effective Date specified therein and continuing for the initial Service term specified therein (“Initial Service Term”).
PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS AND THOSE IN SECTION 7.2. Unless otherwise set forth in the applicable Order Form, or unless the Order Form is terminated in accordance with Section 6.2.2, upon expiration of the Initial Service Term, the relevant Order Form will renew automatically on an annual basis for subsequent renewal terms of twelve (12) months (each a “Renewal Service Term“), unless either Party notifies the other Party in writing, at least thirty (30) days (subject to Section 7.2) prior to the end of the then-current Service Term, that it chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”
1. Termination of Agreement. Neither Party will have the right to terminate this Agreement without legally valid cause (no termination “for convednience”). Either Party may terminate this Agreement, but only by providing written notice to the other Party, and only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.
2. Termination of Order or SOW. Either Party may terminate any Order and/or SOW in accordance with their respective terms. If not specified in the applicable Order or SOW, then subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding warranties and Service Credits): either Party may terminate any Order or SOW for cause upon written notice if the other Party fails to cure any material breach thereof, or any material breach of this Agreement, within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach. Either Party may terminate this Agreement, but only by providing written notice to the other Party, and only after all Orders and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.
- EFFECT OF TERMINATION
1. Effect of Expiration or Termination of Agreement. Sections 1, 2, 4.2, 5.3, 6, 8, 9, 10, 11, 12.3, 13, 14, 15, 16 and 17 of this Agreement will survive any expiration or termination of this Agreement. The applicable Order and SOW may identify additional terms that will survive any expiration or termination of this Agreement.
2. Effect of Termination of Order or SOW. Subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding Compliance with Privacy Laws, Indemnification, Warranties and Service Levels): (a) if Customer terminates an Order, SOW and/or this Agreement for uncured material breach in accordance with this Agreement, Customer will be entitled to a refund, on a pro rata basis, of any Fees paid thereunder that are unused as of the termination effective date; and (b) if Colony terminates an Order, SOW and/or this Agreement for uncured material breach in accordance with Section 6.2, all amounts owed by Customer thereunder will become due and payable.