Effective as of: March 15, 2018
1. SERVICES AND SUPPORT
- Subject to the terms and conditions of this Agreement, Periscope will provide Customer and its Authorized Users (as defined below) with access to the Services through the internet. The Services are subject to modification from time to time at Periscope’s sole discretion, for any purpose deemed appropriate by Periscope. Periscope will use reasonable efforts to give Customer prior written notice of any such modification.
Periscope will use commercially reasonable efforts to provide Customer with the Services for 99.9% of all Scheduled Availability Time, calculated on a monthly basis (the “Service Availability”). Scheduled Availability Time is 24 hours a day, 7 days a week, excluding (i) Scheduled Maintenance (defined below); (ii) Emergency Maintenance (defined below); (iii) downtime due to acts of Customer, its vendor(s), or any third party connections, utilities or equipment or (iv) downtime related to any other forces beyond the reasonable control of Periscope (such as internet outages or outages with respect to Customer’s network or internet access). If Periscope fails to meet the Service Availability in any month during the current term and Customer is in compliance with all of its obligations hereunder, Periscope will provide Customer with a service credit for the subsequent billing cycle as follows:
In order to receive the service credit, Customer must notify Periscope and request the applicable service credit within ten (10) business days following the end of the calendar month in which the failure occurred. Failure to provide such notice will forfeit the right to receive the service credit. The service credit will be Periscope’s sole obligation and Customer’s exclusive remedy with respect to any failure by Periscope to meet the Service Availability.
- Scheduled Maintenance will be conducted between the hours of 4:00 pm PT and 7:00 pm PT on the second Saturday of each month, provided that Periscope, in its sole discretion, may conduct such Scheduled Maintenance at a different time, and if so, such change to the Scheduled Maintenance will be communicated to Customer (by email or by posting to Periscope’s website) at least 24 hours in advance.
- Periscope may also perform any maintenance reasonably necessary to fix critical functionality, security or other vulnerabilities or material defects that may substantially impair the usability or performance of the Services which cannot reasonably be performed during the Scheduled Maintenance window (“Emergency Maintenance”). Periscope will use commercially reasonable efforts to notify Customer (by email or telephone) of Emergency Maintenance as soon as reasonably practicable (including the steps being taken to remedy the applicable issue and anticipated time for remediation).
- Subject to the terms hereof, Periscope will provide reasonable support to Customer for the Services from Monday through Friday during Periscope’s normal business hours of 7am to 5pm.
2. RESTRICTIONS AND RESPONSIBILITIES
to the Services may require the Customer to install certain software applications.
Customer agrees to be bound by any end-user software agreements that govern the
installation and use of such client software applications. If Periscope
authorizes Customer to distribute any such application to its own end user
customers (“Third Party Customers”), Customer may do so only after effectively
binding such Third Party Customers to the applicable end- user software
agreements provided by Periscope for the benefit of Periscope.
will not, and will not permit any third party or Authorized User to: reverse
engineer, decompile, disassemble or otherwise attempt to discover the source
code, object code or underlying structure, ideas or algorithms of the Services
or any software, documentation or data related to the Services (“Software”)
(provided that reverse engineering is prohibited only to the extent such
prohibition is not contrary to applicable law); modify, translate, or create
derivative works based on the Services or Software; use the Services or
Software for timesharing or service bureau purposes or for any purpose other
than its own use; or use the Services or Software other than in accordance with
this Agreement and in compliance with all applicable laws and regulations
(including but not limited to any European privacy laws, intellectual property,
consumer and child protection, obscenity or defamation).
and its Authorized Users will cooperate with Periscope in connection with the
performance of this Agreement by making available such personnel and
information as may be reasonably required, and taking such other actions as
Periscope may reasonably request. Customer will also cooperate with Periscope
in establishing a password or other procedures for verifying that only designated
employees of Customer have access to any administrative functions of the
will designate an employee who will be responsible for all matters relating to
this Agreement (“Primary Contact”). Customer may change the individual
designated as Primary Contact at any time by providing written notice to
hereby agrees to indemnify and hold harmless Periscope against any damages,
losses, liabilities, settlements and expenses (including without limitation
costs and attorneys’ fees) in connection with any claim or action that arises
from an alleged violation of the foregoing or otherwise from Customer’s use of
Services. Although Periscope has no obligation to monitor the content provided
by Customer or its Authorized Users, or Customer’s or its Authorized Users’ use
of the Services, Periscope may do so and may remove any such content or
prohibit any use of the Services it believes may be (or alleged to be) in
violation of the foregoing.
will be responsible for maintaining the security of Customer account, passwords
(including but not limited to administrative and user passwords) and files, and
for all uses of Customer’s account with or without Customer’s knowledge or
consent, including any use by those employees and contractors for whom Customer
has authorized an account using the functionality of the Services (each, an “Authorized
User”). For clarity, Authorized Users may
only be employees and contractors of Customer. The license granted hereunder
does not extend to employees and contractors of any of Customer’s affiliates or
any entity that controls or is controlled by Customer, unless Customer has
obtained Periscope’s prior written consent. Customer shall ensure that its
Authorized Users are familiar with and agree to all applicable obligations
contained in this Agreement, and Customer is responsible and liable for any
breach of this Agreement by any Authorized User. Periscope will separately enter into a
collected directly from Authorized Users; such information shall not be deemed
Proprietary Information (as defined below) of Customer hereunder, and is not
subject to the terms of this Agreement, but rather is governed by the terms of
- Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Periscope is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Periscope does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
party, including any Authorized User (the “Receiving Party”) understands that
the other party (the “Disclosing Party”) has disclosed or may disclose
information relating to the Disclosing Party’s technology or business
(hereinafter referred to as “Proprietary Information” of the Disclosing Party).
Receiving Party agrees: (i) not to divulge to any third person any such
Proprietary Information, (ii) to give access to such Proprietary information
solely to those employees or contractors of Customer with a need to have access
thereto for purposes of this Agreement, and (iii) to take the same security precautions
to protect against disclosure or unauthorized use of such Proprietary
information that the party takes with its own proprietary information, but in
no event will a party apply less than reasonable precautions to protect such
Proprietary Information. The Disclosing
Party agrees that the foregoing will not apply with respect to any information
that the Receiving Party can document (a) is or becomes generally available to
the public without any action by, or involvement of, the Receiving Party, or (b)
was in its possession or known by it prior to receipt from the Disclosing
Party, or (c) was rightfully disclosed to it without restriction by a third
party, or (d) was independently developed without use of any Proprietary
Information of the Disclosing Party. Nothing in this Agreement will prevent the
Receiving Party from disclosing the Proprietary Information pursuant to any
judicial or governmental order, provided that the Receiving Party gives the
Disclosing Party reasonable prior notice of such disclosure to contest such
order. Notwithstanding anything to the contrary, Periscope may collect, use,
disclose, and freely exploit data with respect to the aggregate response rate
and other aggregate measures of the Services’ performance, and any other information
received by Periscope in connection with this Agreement provided such
information has been anonymized such that it does not identify Customer.
acknowledges that Periscope does not wish to receive any Proprietary
Information from Customer that is not necessary for Periscope to perform its
obligations under this Agreement, and, unless the parties specifically agree
otherwise, Periscope may reasonably presume that any unrelated information
received from Customer and any Authorized User is not confidential or
- Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4. INTELLECTUAL PROPERTY RIGHTS
as expressly set forth herein, Periscope alone (and its licensors, where
applicable) will retain all intellectual property rights relating to the
Service and the Software and any suggestions, ideas, enhancement requests,
feedback, recommendations or other information provided by Customer or any
third party or Authorized User relating to the Service and/or the Software,
which are hereby assigned to Periscope. Customer and its Authorized Users will
not copy, distribute, reproduce or use any of the foregoing except as expressly
permitted under this Agreement. This Agreement is not a sale and does not
convey to Customer any rights of ownership in or related to the Service or
Software, or any intellectual property rights.
- Periscope will obtain and process content and data provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If Periscope receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Periscope may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Periscope from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. Notwithstanding anything to the contrary, Periscope may freely use and disclose any data or other information provided by or collected from Customer in connection with its use of the Services, if it has been aggregated or otherwise anonymized such that it does not personally identify Customer or any of its personnel.
5. PAYMENT OF FEES
will pay Periscope the applicable fees as accepted and agreed to by Customer in
writing (email to suffice) during the registration process for the Services
(the “Fees”). To the extent applicable, Customer will pay Periscope for
additional services, such as integration fees or other consulting fees. All
payments will be made in accordance with the payment method and payment
schedule (“Payment Schedule”) mutually agreed by the parties in writing (email
to suffice). Customer agrees that
Periscope will charge Customer for the Fees on a recurring basis in accordance
with such Payment Schedule. Specifically, if Customer submits credit card
information to Periscope for payment of Fees, Customer hereby authorizes
Periscope to charge such credit card for the Fees incurred in accordance with
the Payment Schedule. If the parties agree that Periscope will invoice Customer
for the Fees, payments will be due within thirty (30) days of the date of the
- Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Customer agrees to pay any applicable taxes not otherwise included in the Fees (excluding US taxes based on Periscope’s net income) unless Customer has provided Periscope with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
6. TERM AND TERMINATION
to earlier termination as provided below, this Agreement will remain in effect for
the term specified on the quote (the “Initial Service Term”) or until
terminated in accordance with the terms of this Agreement. Following the
Initial Service Term, this Agreement will automatically renew for successive
renewal terms of equal length to the Initial Service Term, subject to early
termination (each, a “Renewal Term”, and together with the Initial Term, the “Service
Term”) unless either party gives the other party notice of non-renewal at least
thirty (30) days prior to the end of the then-current term. Additionally, the
thirty (30) day notice also includes any request for reduction in services
provided or fees. Fees for Renewal Terms
will not increase by more than 5% of the Fees for the then-current term.
the event of any material breach of this Agreement, the non- breaching party
may terminate this Agreement prior to the end of the Service Term by giving
thirty (30) days’ prior written notice to the breaching party; provided,
however, that this Agreement will not terminate if the breaching party has
cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement,
without notice, (i) upon the institution by or against the other party of
insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s
making an assignment for the benefit of creditors, or (iii) upon the other
party’s dissolution or ceasing to do business without a successor.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
Periscope represents and warrants that it will not knowingly include, in any Periscope software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Periscope fails to comply with the warranty in this Section, Customer may promptly notify Periscope in writing of any such noncompliance. Periscope will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. WARRANTY DISCLAIMER
THE SERVICES AND PERISCOPE PROPRIETARY INFORMATION AND ANYTHING PROVIDED BY PERISCOPE IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,”
WITHOUT ANY WARRANTIES OF ANY KIND. PERISCOPE (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL PERISCOPE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF Periscope HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF PERISCOPE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO PERISCOPE HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer and its Authorized Users may not provide to any person or export or re-export or allow the export or re- export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer and its Authorized Users acknowledge and agree that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Periscope are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub licensable by Customer except with Periscope’s prior written consent. Periscope may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Additionally, the Customer allows Periscope Inc. the use of its logo and likeness on Periscope Inc.’s website and other promotional material.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Periscope in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Periscope will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. Any dispute or claim arising out of or related to this Agreement, or breach or termination thereof, will be finally settled by binding arbitration in the County of San Francisco, California, United States pursuant to the International Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) then in effect by a single JAMS arbitrator with substantial experience in resolving complex commercial contract disputes. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will apply California law to the merits of any dispute or claim, without reference to rules of conflict of law, and shall have the authority to award any and all available remedies, including legal and equitable relief. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Customer hereby consents to the arbitration in the State of California in the county of San Francisco. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Periscope. Periscope is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.