MASTER SUBSCRIPTION Agreement
THIS MASTER SUBSCRIPTION AGREEMENT (the “Agreement”) governs your acquisition and use of Ghost Monitor’s cart abandonment remarketing services (“Services”). By accepting this Agreement, either by clicking a box to indicate your acceptance or otherwise executing a document that references this Agreement, you agree to the terms of this Agreement. This Agreement shall become effective on the date of your acceptance (the “Effective Date”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services. This Agreement was last updated on February 19th [ ], 2016. It is effective between You and GhostMonitor (“Ghost Monitor”) as of the date You accept this Agreement.
The parties to this Agreement hereby agree as follows:
- ACCESS AND USE.
- Access Right. Subject to the terms and conditions of this Agreement, Ghost Monitor grants to You during the Subscription Period (defined below) a nonexclusive, non-sublicensable (except as set forth herein) and nontransferable right to access and use the Service solely for Your internal business purposes. The foregoing license includes the right for Your employees and third-party contractors and consultants to access and use the Service solely on behalf of You, provided that You shall be fully responsible for any and all liabilities arising from the activities of such employees and third-party contractors and consultants in connection with their access and use of the Service. You may not use (or authorize the use of) the Service for any other purpose or for the benefit of any other party, except as may be permitted in writing by Ghost Monitor. This access right terminates at the end of the Subscription Period or earlier termination of the Service in accordance with this Agreement.
- Service Availability. Ghost Monitor’s goal will be to make the Service available 24 hours a day, 7 days a week, except during scheduled maintenance windows. However, 24×7 availability of the Service is only a goal and Ghost Monitor does not represent or guarantee that such goal will be achieved at all times. You acknowledge that Your ability to access and use the Service may also be affected by resources and factors outside the control of Ghost Monitor, including Your access to the internet.
- Mode of Access. You shall not access or attempt to access the Service by any means other than the web and mobile device interfaces provided by Ghost Monitor, or to attempt to circumvent or disable any access or use restrictions put in place by Ghost Monitor. You shall maintain a list of all third-party contractors and consultants authorized to access the Service on behalf of You and will make such list available to Ghost Monitor upon request.
- Other Restrictions. You shall use the Service only for purposes and in a manner that are permitted by applicable laws, rules and regulations. You shall not (and shall not attempt to) decompile, reverse engineer or otherwise derive or discover the source code of the software underlying the Service, or use the Service in a service bureau or other resale capacity.
- Account Information. You shall provide Ghost Monitor with complete and accurate account, billing and payment information and keep such information up to date during the Subscription Period.
- Passwords and Account Security. You are responsible for maintaining the security and confidentiality of all passwords associated with Your account, and for all activities that occur under Your account. If You become aware of any unauthorized or illegal use of any such password or account, You shall immediately notify Ghost Monitor.
- SUBSCRIPTION AND PRICING.
- Subscription Period. The Service will be made available on commencing on the Effective Date until You cancel the Subscription or this Agreement is terminated under Section 7 (the “Subscription Period”), subject to Your payment of the Access Fees (defined below).
- Access Fees. You will pay the access fees set forth on the schedule attached as set forth on Ghost Monitor’s website (the “Access Fees”). Ghost Monitor reserves the right to modify the Access Fees from time to time; Ghost Monitor will provide notice of any changes to the Access Fees on its website. The Access Fee excludes all applicable sales, use and other taxes, and You will be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, that may arise from Your use of the Service.
- Payment. You must have a valid credit card and provide such credit card information to Ghost Monitor in order to use the Service. Ghost Monitor will use a third party solution to save your credentias and charge you your use of the Service. Your account will have a credit limit which Ghost Monitor may set at its sole discretion (“Credit Limit”). You will be charged each month for the Access Fees you have incurred, or if you exceed your Credit Limit. By way of example, if Your Credit Limit is $20 USD and you incur more than $20 in Access Fees prior to the end of the monthly payment cycle, You will be charged for the balance on your account. Notwithstanding the foregoing, certain Access Fees for Services may be offered on other alternative fee arrangements including, but not limited to a fixed fee basis requiring advanced payment. Failure to provide timely payment may result in the suspension of Your access to and use of the Service until the outstanding balance has been paid in full. Ghost Monitor will restore access to the Service promptly after all outstanding amounts owed have been paid.
- Technical Support. Ghost Monitor will provide reasonable technical support by email and the chat function (available following registration on Ghost Monitor’s website) to assist in Your access to and use of the Service. You may contact Ghost Monitor at firstname.lastname@example.org.
- Software Updates. Ghost Monitor may update from time to time the server-side software, and web and mobile device interfaces, underlying the Service. Such updates are intended to improve or enhance the Service and may take the form of bug fixes, program code updates and enhancements.
- content AND DATA.
- Responsibility for Content Resulting From Use of the Service. You acknowledge and agree that, as between the parties hereto, all information communicated to You in connection with use of the Service by You and/or Your third-party contractors and consultants is the responsibility of You, and that Ghost Monitor has no responsibility for such content.
- Input Data. As between the parties hereto, You shall own and, other than to the limited extent provided in this Section 4.2, have sole control over any and all data transmitted to the Service by You, Your third-party contractors and consultants, and/or by other persons communicating with You via the Service (collectively, the “Input Data”). You hereby grants to Ghost Monitor a non-exclusive, royalty-free, worldwide license during the Term of this Agreement to reproduce, modify, create derivative works from, distribute, publicly perform and publicly display the Input Data solely in conjunction with the Service. You acknowledge and agree that as between the parties hereto, all Input Data is the responsibility of You; provided, however, that Ghost Monitor shall have the right (but not the obligation) in its discretion to remove from the Service any Input Data that violates this Agreement or Ghost Monitor’s policies and procedures, or is otherwise objectionable.
- Security. You acknowledge that servers and databases are maintained by or on behalf of Ghost Monitor to store the Input Data and other data processed by the Service, and may keep such information indefinitely. Ghost Monitor employs reasonable technological and operational security procedures intended to protect such data from loss, misuse, alteration, or destruction. However, You acknowledge that no security measure can guarantee against compromise, and Ghost Monitor does not guarantee that the servers and databases underlying the Service will not experience any such compromise.
- INTELLECTUAL PROPERTY RIGHTS.
- Reservation of Rights. All rights not expressly granted herein are reserved by Ghost Monitor, including, but not limited to, the unrestricted right to grant access to the Service to third parties in any form anywhere. Nothing in this Agreement is intended by the parties to constitute a sale of the software or associated documentation underlying the Service, or any derivations thereof. Ghost Monitor reserves the right to modify the Service in Ghost Monitor’s discretion.
- Title. The Service (including the software and associated documentation underlying the Service) are the valuable proprietary and trade secret information and property of Ghost Monitor or its licensors. Title, ownership rights and intellectual property rights, including but not limited to, copyright and patent rights, in the Service, and all derivatives thereof, shall remain with Ghost Monitor and its licensors. You acknowledge the ownership and intellectual property rights of Ghost Monitor and will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights.
- Marks. The trademarks, logos and service marks (the “Marks”) displayed in the Service and on Ghost Monitor’s website are the property or Ghost Monitor or third parties. You shall not use any Mark (or allow the use of any Mark by any of Your third-party contractors or consultants) without the prior written consent of Ghost Monitor or applicable third-party owner of the Mark.
- Feedback. Although You will remain the owner of any feedback provided to Ghost Monitor regarding the Service, You hereby grants Ghost Monitor a non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, transferable, unlimited, world-wide right to use and otherwise commercially exploit any feedback, ideas or other suggestions communicated by You to Ghost Monitor.
- NO WARRANTY.
THE SERVICE AND ANY RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. Ghost Monitor DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Ghost Monitor DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, THAT USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ALL DEFECTS IN THE SERVICE WILL BE CORRECTED.
- By You. You may terminate this Agreement (and cancel the Service) at any time. You will not owe any Access Fees for periods subsequent to the effective date of such notice and may continue to use the Service if the Access Fees that have been paid cover a subscription period that has not expired.
- By Ghost Monitor. Ghost Monitor may terminate this Agreement (and Your access to the Service) at any time if You have failed to pay the Access Fee for any particular month when due and failed to make such payment within 30 days after receiving a reminder from Ghost Monitor in writing. Ghost Monitor may also terminate the Service prior to the end of any Subscription Period if You has committed any other material breach of this Agreement and failed to cure such material breach within 30 days after receiving written notice of the breach from Ghost Monitor.
- Effects of Termination. Upon the expiration or termination of this Agreement, Ghost Monitor will disable Your online access to the Service. Termination of this Agreement will not relieve either party from its obligation to comply with any terms of this Agreement that call for performance prior or subsequent to the termination date of the Service, including Your obligation to pay for access to the Service for periods prior to the termination date.
- RISK OF LOSS AND LIMITATION OF LIABILITY.
- Risk of Loss. You accept all risk of loss or damage to the computer systems or other devices of You and of Your third-party contractors and consultants, or loss of data, which results from or in connection with use of the Service by You and/or Your third-party contractors and consultants.
- Limitation of Liability. IN NO EVENT WILL GHOST MONITOR BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND EVEN IF Ghost Monitor HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Ghost Monitor’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE AMOUNTS PAID TO GHOST MONITOR BY YOU FOR ACCESS TO THE SERVICE. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different.
You acknowledge that by making the Service available, Ghost Monitor does not assume any responsibility or liability for the risks associated with Your business. Accordingly, You shall defend, indemnify and hold harmless Ghost Monitor and its officers, directors, employees and representatives from and against all claims by third parties arising out of or relating in any way to the conduct of Your business or the use of or inability to use the Service, and all associated losses, costs, damages, and settlements, including reasonable legal fees and expenses. In the event of a claim in respect of which Ghost Monitor seeks indemnification from You under this Section 9, Ghost Monitor will promptly notify You in writing of the claim, cooperate with You in defending or settling the claim at Your expense, and allow You to control the defense and settlement of the claim, including the selection of attorneys.
- ARBITRATION OF DISPUTES.
Ghost Monitor and You agree that all disputes, controversies or claims which arise out of or relate in any way to the Service or this Agreement shall be finally resolved by arbitration held in San Francisco, California, and conducted by a single arbitrator according to the Commercial Arbitration Rules of the American Arbitration Association using expedited procedures. The arbitrator will have no authority to award any damages that are excluded by this Agreement. Any award by the arbitrator may be enforced in any court having jurisdiction. You expressly agree that Ghost Monitor may seek injunctive relief by a court pending an award in arbitration and shall not, by doing so, be held to have infringed the powers of the arbitrator or breached its agreement to arbitrate.
- general provisions.
This Agreement represents the entire agreement between Ghost Monitor and You with respect to Your access to and use of the Service. This Agreement shall be governed by the laws of the State of California and any controlling U.S. federal laws, exclusive of choice of law rules. If either party waives or modifies any term or condition of this Agreement, that will not void, waive or change any other term or condition. If either party waives a default by the other party, that does not mean that either party will waive future or other defaults. You may not assign or otherwise transfer this Agreement or any rights granted under it without the prior written consent of Ghost Monitor, which consent may be withheld at Ghost Monitor’s sole discretion, and any purported assignment without Ghost Monitor’s prior written consent shall be void. Each party’s relationship to the other is that of an independent contractor, and neither party is an agent or partner of the other. If any part of this Agreement, for any reason, is declared to be invalid, it shall be reformed to the minimum extent necessary in order for such part to remain in effect and be enforceable in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect. All notices under this Agreement must be delivered in writing by courier or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth above, and will be effective upon receipt or three business days after being deposited in the mail, whichever occurs sooner. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be to be duly executed by its authorized representative effective as of the Effective Date: 03/03/2016