Last Updated: December 1, 2022
GetMasset.com (www.getmasset.com), including all of its related applications, dashboards, or platforms (individually and collectively, the “Website”), is owned and operated by Masset, Inc. (“Masset,” “we,” “us” or “our”). By using or accessing the Website or Services (as defined below), by signing or clicking to accept these terms or any Subscription Documentation (as defined below) referencing these terms, you agree to be bound by the following terms and conditions, including our Privacy Policy (together, these “Terms”, or this “Agreement”).
If you are using our Services on behalf of a company, organization, or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee, agent, or other authorized representative with all necessary authority to bind that entity to this Agreement.
This Agreement includes and hereby incorporates by reference any Subscription Documentation executed between you and Masset, as well as any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with Masset concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms. Please note that we may modify this Agreement as described in Section 16.9 below.
1. DEFINITIONS.
1.1. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
1.2. “Law(s)” means all applicable local, state, federal, and international laws, rules, and regulations, or amendments thereto.
1.3. “Territory” means the United States, unless otherwise expressly set forth in Client’s Subscription Documentation.
2. SERVICES.
2.1. Services. Masset provides a proprietary asset collaboration product platform and related services (together with the Website, the “Service(s)”). Client will, from time to time, enter into a proposal, quote, services/purchase agreement, order form, statement of work, or otherwise click to accept or agree to an online registration form, which references this Agreement (“Subscription Documentation”) and details the Services ordered and scope of use descriptions for the Services (the “Scope of Use”).
2.2. Alteration of Subscription Documentation. Any amendments or modifications to any existing Subscription Documentation must be agreed to in writing by the parties. Masset has no obligation to perform any Services under any amended Subscription Documentation until the parties have agreed to the effect of such changes on the applicable Fees.
2.3. Modification of the Services. Masset reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services temporarily or permanently. Masset also reserves the right to replace certain Services with functionally equivalent Services, at its sole discretion. In the event Masset makes any modification or alteration to the Services that has a material adverse effect on the functionality of the Services ordered under your Subscription Documentation, Client may terminate this Agreement and receive a pro-rated refund of pre-paid unused Fees for the remainder of Client’s Subscription Term (as defined below).
2.4. Additional Terms. Client’s subscription to or use of certain Services may be subject to additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from these Terms or the Services (the “Additional Terms”). To the extent applicable, all Additional Terms are incorporated by this reference into, and made a part of, these Terms. If Client purchases or otherwise uses any of the following Services, Client’s use is subject to and Client accepts the applicable Additional Terms, as set forth below.
3. USE RIGHTS; RESTRICTIONS.
3.1. Use of Services. Subject to all terms and conditions of this Agreement, including any Additional Terms, Masset grants Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term and within the Territory to access and use the Services solely for Client’s internal business purposes, but only in accordance with this Agreement, our Acceptable Use Policy (“Acceptable Use Policy”), the applicable Subscription Documentation, and all applicable Scope of Use descriptions. Although the Services may be accessible worldwide, Masset makes no representation that the Services are appropriate or available for use in locations outside the Territory (or that all products or features of the Services are available throughout the Territory). Furthermore, accessing the Services from territories where their content or use is illegal, is prohibited under this Agreement. Those who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws and any costs associated with access or use outside the Territory. You may not use or export the Services in violation of U.S. export laws and regulations.
3.2. Account Registration. Client must register for a Masset account in order to access or receive the Services. Account information must be accurate, current, and complete, and will be governed by Masset’s Privacy Policy as may be amended from time to time. Client agrees to keep its account information up to date so that Masset may send notices, statements, and other information by email or through Client’s account. By using or accessing the Website, Client agrees and consents to Masset’s use of cookies in accordance with the terms of Masset’s Privacy Policy. Client is solely responsible for all use of its Services account(s). Masset will not be liable for any loss or damage arising from unauthorized use of Client’s account(s).
3.3. Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees, agents, contractors, and any other users whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all Laws when using the Services. Client may permit its Authorized Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement, which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Services and/or Website.
3.4. Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with this Agreement. Client will be solely responsible for authorizing and creating user IDs, passwords, and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, Masset may, in its sole discretion, suspend any Authorized User’s access to the Services. Client is solely responsible for ensuring that any user IDs, passwords, and other access credentials for the Services are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all Laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords, or access credentials. Client must notify Masset within twenty-four (24) hours of any breach of security or unauthorized use of its account. Use by all Authorized Users in aggregate will count towards any applicable Scope of Use restrictions.
3.5. General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense, or provide access to the Masset Technology (as defined below) to a third party (except Authorized Users as specifically authorized above); (b) incorporate the Masset Technology (or any portion thereof) into, or use it with or to provide, any site, product, or service; (c) use the Masset Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the Masset Technology (which is deemed Masset’s Confidential Information); (e) modify or create a derivative work of the Masset Technology or any portion thereof; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Masset Technology or Services, except to the extent expressly permitted by applicable Law and then only upon advance notice to Masset; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the Masset Technology other than as specifically permitted above; (i) use the Services in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the Masset Technology including in any reports or output obtained from the Masset Technology.
3.6. Beta Releases and Free Access Subscriptions. Subject to Client’s compliance with the terms of this Agreement, Masset may provide Client with certain Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta”, or other early-stage Services, integrations, or features (“Beta Releases”) for the Subscription Term set forth in the applicable Subscription Documentation (if applicable). This Section 3.6 and any relevant Additional Terms will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. For the avoidance of doubt, Section 6 (Availability of Services; Support) will not apply to any Free Access Subscription or Beta Release. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH MASSET WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. Masset makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Free Access Subscription or Beta Release will be released or will be available under the same commercial or other terms. Masset may discontinue Beta Releases at any time, in our sole discretion, and decide not to make any Beta Releases generally available. Notwithstanding anything to the contrary herein, Masset may terminate Client’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Masset’s sole discretion, without liability.
4. CLIENT DATA.
4.1. Rights in Client Data. As between the parties, Client retains all right, title, and interest (including any intellectual property rights) in and to any text, images, or other content and data that Client selects or submits for use or incorporation with the Services (including without limitation, any Third-Party Content) (“Client Data”). “Third-Party Content” means content, data, or other materials that Client provides to the Masset Services from its third-party data providers, including through Third-Party Products (as defined below) used by Client. Client hereby grants Masset a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Client Data solely to the extent necessary to provide the Services and related services to Client and as otherwise provided herein. Client further instructs Masset to use and disclose Client Data as necessary to (a) provide the Services consistent with this Agreement and Masset’s Privacy Policy, including detecting, investigating, and preventing security incidents, spam, fraud, or unlawful use of the Services, and (b) respond to Client’s inquiries or any technical problems and ensure the Services are working properly.
4.2. Aggregate/Anonymous Data. Client agrees that Masset will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data (“Aggregate Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate Data is Masset Technology, which Masset may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Masset’s products and services and to create and distribute reports and other materials). Masset will not distribute Aggregate Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable Laws.
4.3. Monitoring. Client understands and agrees that Masset may monitor and analyze Client Data to improve the Website or Services; to improve Client’s experience using the Website or Services; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the Acceptable Use Policy (including taking corrective action permitted therein); and/or to make the Website or Services more helpful or useful to Client and other users.
4.4. Security. Masset agrees to maintain physical, technical, and organizational measures designed, in its discretion, to secure its systems from unauthorized access, use, or disclosure. Masset takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section 4.4.
5. CLIENT OBLIGATIONS.
Client warrants and represents that it will use the Services in full compliance with all Laws and terms of this Agreement, including the Acceptable Use Policy, and that it will not use the Services in a manner that would cause Masset to violate any obligation with respect to any such Laws. Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to Masset, or otherwise has legal rights to provide such Client Data, and Client Data and Masset’s use thereof will not violate third-party rights, including intellectual property, privacy, and publicity rights; (b) Masset’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; and (c) Client is authorized to provide Masset with any Client or Authorized User information it provides in connection with the Services, including any personally identifying information. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify Masset immediately. Additionally, if an integration is included in the Services Client orders, Client grants Masset the right to access Client’s Data or Client’s CRM system directly or through a third-party service for the purposes of fulfilling Masset’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting Masset such right.
6. AVAILABILITY OF SERVICES; SUPPORT.
6.1. Availability. Subject to the terms of this Agreement and any scheduled maintenance and unavailability caused by: (a) actions or omissions of Client; (b) failures, errors, or defects in the facilities, hardware, software, or network of Client; or (c) circumstances that constitute a force majeure event or that are beyond Masset’s reasonable control, the Services will be available for access via the Website 99.0% of the time during of the applicable Subscription Term. Client’s sole remedy and Masset’s sole liability for failure to meet the aforementioned availability will be support in accordance with Section 6.2.
6.2. Support. Masset makes available web-based support through the Website. Additional support services may be available to Client subject to payment of applicable fees (if any), as specified in any applicable Subscription Documentation. Any support services are subject to this Agreement and Masset’s applicable support policies, if any. Client is primarily responsible for its own account setup and onboarding. Masset may also provide onboarding, deployment, and other services under this Agreement, including via Third-Party Providers or subcontractors. If applicable, the scope, pricing, and other terms for these additional services will be set forth in the applicable Subscription Documentation. Masset’s ability to deliver the Services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Services.
7. FEES AND PAYMENT.
7.1. Fees. Unless otherwise specified on the applicable Subscription Documentation, the Services are provided on an ongoing, per-license subscription-basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in the Subscription Documentation (“Subscription”). Client agrees to pay to Masset the fees for the Subscription to the Services (“Subscription Fees”) and any additional fees (if applicable), all as set forth in the applicable Subscription Documentation or Additional Terms (collectively, the “Fees”). Except as otherwise specified in the applicable Subscription Documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription Term, such Services will convert to a paid Subscription and Client agrees to pay Masset the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is due within thirty (30) days of the invoice date.
7.2. Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Subscription Fees will be paid annually in advance or monthly, depending on the chosen plan, though overage fees (if any) may be charged in arrears, and all references to currency set forth herein will mean U.S. dollars, with all payments hereunder to be made in U.S. dollars. Subscription Fees are non-refundable and non-creditable, except as expressly set forth in Sections 2.3 (Modification of the Services) and 8.3 (Termination for Cause). If the payment method selected on the applicable Subscription Documentation is credit card, ACH, or direct debit, Client authorizes Masset to charge the Subscription Fees automatically, on an auto-renew basis on your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-renew basis, on Client’s existing Subscription Start Date. The Subscription will continue unless and until you or Masset terminate your Subscription in accordance with Section 8. You must cancel your Subscription before it renews in order to avoid billing the next periodic Subscription Fees to your account. If Client elects to pay by credit card, then you are responsible for both (a) enabling auto-recharge on your account and (b) ensuring that your account has a sufficient positive balance to cover all Fees when due. Should Masset be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Masset will have the right to charge interest on all overdue amounts equal to the maximum amounts allowed by applicable Law. Additionally, after payment becomes overdue, Masset will have the right to immediately suspend Client’s access to the Services and/or seek to enforce Client’s payment obligations including through the use of third-party services.
7.3. Taxes. Masset’s Fees are exclusive of all taxes and regulatory fees, and Client must pay any applicable taxes regulatory fees, or levies, whether domestic or foreign, other than taxes based on the income of Masset. Client will make tax and regulatory fee payments to Masset to the extent amounts are included on Masset’s invoices.
7.4. Fee Increase. Masset reserves the right to determine the applicable Fees for any Services. While Masset will make reasonable efforts to keep the information relating to Fees published on its Website up to date, you should check the Website periodically for information about current Fees. If any Fees are specified on your Subscription Documentation, Masset may increase Fees applicable to you upon forty-five (45) days’ prior written notice, effective on the start date of your subsequent Subscription Term. Masset may also, from time to time and in its sole discretion, make promotional offers or different Fees available to its clients or other users. Such promotional offers will not apply to you or this Agreement unless specified in writing in your Subscription Documentation.
8. TERM AND TERMINATION.
8.1. Term. This Agreement is effective until the applicable Subscription Term for the Services has expired or the Subscription is terminated as expressly permitted herein. Unless otherwise stated in Client’s Subscription Documentation, the initial term for any Subscription to the Services is twelve (12) months and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to support@getmasset.com. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services (“Subscription Start Date”). By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by this Section 8.1 or Section 8.3 (Termination for Cause). Unless Client’s Subscription Documentation expressly states otherwise, any additional Services purchased during Client’s Subscription Term will be coterminous with Client’s most recent Masset platform Subscription Term.
8.2. Suspension of Services. Masset may suspend Client’s (or any Authorized User’s, as applicable) access to the Services if: (a) Client’s account is overdue, or (b) Client has exceeded its Scope of Use limits. Masset may also suspend Client’s (or any Authorized User’s, as applicable) access to the Services, remove Client Data, or disable Third-Party Products if it determines that: (i) Client has breached Section 3 (Use Rights; Restrictions) or Section 5 (Client Obligations); or (ii) suspension is necessary to prevent harm or liability to other clients of Masset or third parties or to preserve the security, stability, availability, or integrity of the Services. Masset will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. Unless this Agreement has been terminated, Masset will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension.
8.3. Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the Fees due for the entire Subscription Term. Masset may also terminate this Agreement or any related Subscription Documentation immediately if Client breaches Section 3 (Use Rights; Restrictions) or Section 5 (Client Obligations), for repeated violations of other Sections of this Agreement.
8.4. Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Documentation: (a) Client’s license rights will terminate and it must immediately cease use of the Services (including any related Masset Technology) and delete (or, at Masset’s request, return) any and all copies of any Masset documentation, scripts, passwords or access codes, and any other Masset Confidential Information in Client’s possession, custody, or control; and (b) Client’s right to access any Client Data in the applicable Services will cease. If Masset terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
8.5. Return and Deletion of Client Data. At any time during the Subscription Term, Client may download a backup copy of Client Data (with file attachments in their native formats and all other Client Data in an industry standard export format) from an online service by using a self-service feature, or may request such backup copy by written notice to Masset if such feature is not available. Upon Client’s written request at the time of termination or expiration of any Subscription Term, Client will be allowed read-only access to the Services for thirty (30) days following such date of termination or expiration for the sole purpose of downloading a backup copy of Client Data. Within one hundred eighty (180) days following termination or expiration of the Subscription Term, Masset will delete and render Client Data unrecoverable and, upon Client’s written request, certify such process in writing. Notwithstanding the foregoing, Masset may retain copies of Customer Data as part of records, documents, or broader data sets in accordance with Masset’s legal and financial compliance obligations, on the condition that Masset continues to comply with all the requirements of this Agreement in relation to any such retained Client Data.
8.6. Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 3 (Use Rights; Restrictions); 4 (Client Data); 7 (Fees and Payment); 8 (Term and Termination); 9 (Confidential Information); 10 (Masset Technology); 11 (Third-Party Providers and Third-Party Products); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); 15 (Dispute Resolution); and 16 (General).
9. CONFIDENTIAL INFORMATION.
9.1. Obligation of Confidentiality. Except as otherwise expressly permitted in this Agreement, each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors, subcontractors, or Authorized Users having a legitimate need to know (which, for Masset, includes the subcontractors referenced in Section 16.5), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 9 and these recipients are bound to confidentiality obligations no less protective than this Section.
9.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law, subpoenas, or court orders, provided it uses commercially reasonable efforts to notify the other party where permitted to do so) and cooperates in any effort by the other party to obtain confidential treatment for the information.
9.3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
10. MASSET TECHNOLOGY.
10.1. Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Services and irrespective of any use of the words “purchase,” “sale,” or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of Masset Technology. Client agrees that Masset (or its suppliers) exclusively retains all rights, title, and interest (including all intellectual property rights) in and to all Services, products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Services), anything delivered as part of support, materials or other services, and any updates, modifications, or derivative works of any of the foregoing, including as may incorporate any Feedback (as defined below) (“Masset Technology”) provided by Masset (which is deemed Masset’s Confidential Information) and reserves any licenses not specifically granted herein. Furthermore, Masset exclusively owns and reserves all right, title, and interest in and to Masset’s Confidential Information and any data, in anonymized or aggregated form that does not identify you, any end users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. The Services are offered as an online, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that Masset at its option may make updates, bug fixes, modifications, or improvements to the Services from time-to-time.
10.2. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas, or other feedback or related materials to Masset (collectively, “Feedback”), Client hereby grants Masset a worldwide, perpetual, non-revocable, sublicensable, royalty-free right, and license to use, copy, disclose, license, distribute, and exploit any such Feedback in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Masset’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
11. THIRD-PARTY PRODUCTS AND INTEGRATIONS.
Masset may, from time to time, contract with a third party to facilitate certain features of the Services, including as described in Section 16.5 of this Agreement. Masset may also allow or facilitate Client to make arrangements with other third-party providers that provide products or services in connection with, but which are not included in, the Services as described in this Agreement (“Third-Party Provider(s)”). If Client elects to use any Third-Party Provider(s) or any applications, integrations, add-ons, software, code, online services, systems, and other products that are not Masset Technology (“Third-Party Products”) in connection with the Services, such Third-Party Provider(s) or Third-Party Products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Provider(s) or Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Unless Masset expressly agrees otherwise in a signed writing, Masset (a) is not a party to any such terms; (b) will not be liable thereunder; (c) does not warrant or support Third-Party Providers, Third-Party Products; or Third-Party Content; and (d) disclaims all responsibility and liability for these providers and items and their access to the Services, including their modification, deletion, disclosure, or collection of Client Data. Masset is not responsible in any way for Client Data once it is transmitted, copied, or removed from the Services.
12. INDEMNIFICATION.
12.1. Indemnification by Client. Client will indemnify and hold harmless Masset and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Masset Entities”) from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to: (a) your unauthorized use of, or misuse of, the Services; (b) your violation of, any claim that you have violated, any applicable Law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (c) any dispute or issue between you and any third party; (d) any Client Data; (e) Masset’s use, as contemplated in this Agreement, of any information provided to Masset by you; or (f) breach or alleged breach of this Agreement, including Client’s warranties and obligations. Client also agrees to defend the Masset Entities against these claims at Masset’s request, but Masset may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. In the event Masset assumes exclusive defense of such claims, Client agrees to cooperate with our defense of any such claims. Client may not settle any claim without Masset’s prior written consent if the settlement does not fully release Masset from liability or would require Masset to admit fault, pay any amounts, or take or refrain from taking any action.
12.2. Indemnification by Masset. Masset will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to (a) Masset’s gross negligence or willful misconduct; or (b) Masset’s infringement, misappropriation, or violation of a third party’s intellectual property rights. Masset also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing and the Parties will reasonably cooperate on any defense. Masset must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts, or take or refrain from taking any action.
12.3. Exclusions to Masset’s Indemnification. Masset will not be required to indemnify Client in the event of: (a) modification of the Services by Client, its Authorized Users, Third-Party Providers, affiliates, employees, or contractors in conflict with Client’s obligations or as a result of any prohibited activity under this Agreement, (b) use of the Services in a manner inconsistent with this Agreement, the Acceptable Use Policy, the Additional Terms, the Subscription Documentation, or any other agreement related to this Agreement, or (c) use of the Services in combination with any other application, product, or service not provided by Masset if such claim would not have occurred without such combination.
13. DISCLAIMERS.
EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL MASSET TECHNOLOGY AND RELATED SERVICES, MATERIALS, AND CONTENT AVAILABLE THROUGH THE MASSET TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER MASSET NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. MASSET MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT MASSET TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT MASSET TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, AND MASSET DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. MASSET WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY PROVIDERS, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-MASSET SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE, AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON MASSET TECHNOLOGY OR MASSET’S RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
14. LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL MASSET OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MASSET’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO MASSET FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, MASSET’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS (US $50.00). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY MASSET TECHNOLOGY, OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. DISPUTE RESOLUTION.
If a dispute arises between the parties related to this Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations, the parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:
15.1. Mediation. The parties agree to participate in mediation to settle their Claims in accordance with the rules and procedures found in Utah Code § 78B-10-101 et seq. (Utah Uniform Mediation Act and referred to as “UUMA”) and this Agreement before a party can file a judicial action, whether in a court of law, an administrative body, government agency, or otherwise. If there are any conflicting provisions between UUMA and this Agreement, the provisions in this Agreement will govern.
15.2. Notice. Mediation must be conducted within sixty (60) days from a party receiving written notice of Claims from a complaining party. The notice must contain a detailed description of the nature of the Claims and the requested relief sought.
15.3. Mediator Selection and Mediator Fees. A neutral mediator will be selected as mutually agreed upon by the parties. The mediator’s fees and costs will be paid to the mediator at the end of mediation, with both parties equally sharing the mediation costs and paying their own legal fees and costs.
15.4. Location. Mediation will occur in Salt Lake City, Utah.
15.5. Judicial Action. If the parties are unable to resolve the Claim pursuant to the mandatory mediation referenced above (or if one of the parties refuses to participate in the mandatory mediation or fails to respond to a complaining party’s request for mediation), the parties may subsequently file a judicial action.
15.6. Disputes Not Subject to the Mediation Process. The following claims or actions are not subject to the mandatory mediation provisions of this Section 15: (a) a request for an order of injunctive relief and any related incidental damages; (b) a request for an order to prevent the disclosure of or misuse of Confidential Information or trade secrets; and/or (c) enforcement of Client’s payment obligations as set forth under Section 7.
16. GENERAL.
16.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Masset may assign this Agreement without consent to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2. Notices. Any notice or communication to Masset under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to Masset, Inc. (include “Attn. Legal Department” in the subject line) or by email to legal@getmasset.com. Masset may send notices to the e-mail addresses on Client’s account or, at Masset’s option, to Client’s last-known postal address. Masset may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on Masset’s Website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Masset is not responsible for any automatic filtering Client or its network provider may apply to email notifications.
16.3. Publicity. Unless otherwise specified in the applicable Subscription Documentation, Masset may use Client’s name, logo, and marks to identify Client as a Masset Client on Masset’s website and other marketing materials.
16.4. Masset Communication with Client. You agree that Masset may send you emails and text messages, including transactional, operational, and marketing messages, possibly using automated technology, to the email or phone number you provide to Masset. Message and/or data rates may apply to such messages, and you may opt out at any time. You will keep your contact information up to date and will notify Masset immediately in the event that your contact information changes.
16.5. Subcontractors. Masset may use subcontractors and permit them to exercise the rights granted to Masset in order to provide the Services and related services under this Agreement. Unless Masset expressly states otherwise in signed writing, Third-Party Providers are not “subcontractors” under this Agreement, and Masset disclaims all responsibility and liability for the actions or omissions of any Third-Party Providers.
16.6. Subpoenas. Nothing in this Agreement prevents Masset from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Masset will use commercially reasonable efforts to notify Client where permitted to do so.
16.7. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.8. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order.
16.9. Amendments; Waivers. Masset may update or modify these Terms (including the Additional Terms and any referenced policies and other documents) from time to time by posting a revised version on the Website or Services or by notification via the email associated with your account. If a change to these Terms materially modifies your rights or obligations, you may be required to click through the updated Terms to show acceptance and to continue to use the Services. Material modifications are effective upon the earlier of your acceptance of the modified Terms or upon your next subsequent Subscription Term. Immaterial modifications will become effective upon posting or notification, and continued use of the Services or Website, following the update, will constitute acceptance of the updated Terms. If Client does not agree to the updated Terms, Client will no longer have the right to use the Services. Except as otherwise described in this Section 16.9, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.
16.10. Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
16.11. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect.
16.12. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any affiliates. Furthermore, Client’s affiliates are not permitted to use the Services under these Terms unless an affiliate agrees to these Terms individually and creates its own account.
16.13. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.
16.14. Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Masset Technology or any other subject matter covered by this Agreement. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only and have no legal effect.
16.15. Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.
16.16. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Utah and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement will be the state courts located in Salt Lake County or Utah County, Utah or the United States District Court for the District of Utah, and both parties submit to the personal jurisdiction of these courts.
16.17. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
