Effective as of October 9, 2023
MASTER SERVICES AGREEMENT TERMS AND CONDITIONS
This Master Services Agreement Terms and Conditions, including Schedule A (provides a description of all our Services), and the Service Level Agreement and the Data Processing Agreement (collectively “Agreement”) govern the provision of the Services described in one or more Order Forms executed by each Party and referencing the terms of this Agreement.
Your privacy is important to us. Please read the Data Processing Agreement as it describes the types of data we collect from you, how we use your data, and the legal bases we have to process your data.
The Agreement shall be binding upon the customer as detailed in the Order Form (“Customer”; “you”; “your”), and Visual Box S.r.l. doing business under the name of Launchmetrics (referred to herein as “Launchmetrics”, “us”) a limited company incorporated in Italy, Fiscal Code and VAT Code 13078140152 and certified email amministrazione@pec.visualbox.it, whose registered office is at Via Brera 17, 20144 Milan, Italy.
Each of Launchmetrics and Customer may be referred to as a “Party” or together as the “Parties.”
PURSUANT TO AND FOR THE PURPOSES OF ARTICLES 1341 AND 1342 OF THE ITALIAN CIVIL CODE, CUSTOMER DECLARES TO EXPRESSLY APPROVE THE ARTICLES OF THE PRESENT GENERAL TERMS AND CONDITIONS OF LAUNCHMETRICS: 2. TERM AND TERMINATION, 4. CUSTOMER OBLIGATIONS, 7. FEES, 8. CONFIDENTIALITY, 9. REPRESENTATIONS AND WARRANTIES, 9.4 DISCLAIMERS AND LIMITATION OF LIABILITY, 10. INDEMNIFICATION, 11.3 ASSIGNMENT, 11.4 FORCE MAJEURE, 11.6 SEVERABILITY, 11.7. GOVERNING LAW, JURISDICTION AND VENUE OF THE GENERAL CONDITIONS.
BY ACCEPTING THIS AGREEMENT, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” SHALL REFER TO 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.
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Agreement
1.1. Purpose. Launchmetrics shall provide the Customer (and any Beneficiaries) with access to, use of, and support for the proprietary hosted, on-demand, web-based performance software (the “Hosted Services”) and the implementation, consulting, training or other services (the “Professional Services” and together with the Hosted Services, the “Services”) in accordance with the terms and conditions set forth in this Agreement. All the Launchmetrics Services available are described in Schedule A.
1.2. Contractual Documents. Launchmetrics and Customer (and each Beneficiaries) may enter into a separate scope of work and/or statement of work (the “SOW”) subject to and governed by this Agreement (including all schedules and any amendments whatsoever, which are an integral part hereof) to specify the scope and details of the Services, the Fees (as defined below) and other project deliverables. For the sake of clarity, any reference to Customer in this Agreement shall refer also to each Beneficiary that entered into a SOW. For the purpose of the Agreement, Customer and the Beneficiary shall be considered as one and unique party. Customer and the Beneficiary shall be jointly and severally responsible for all of their obligations under the Agreement.
1.3. Definitions. The term “Affiliate” means, with respect to a Party, another person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such Party.
“Agreement” as used herein shall include together with this Agreement any schedules and/or any SOWs executed between the Parties to such SOWs.
“Beneficiary” means an entity of Customer (including Customer and Customer’s Affiliate) that intends to subscribe to the Services by executing a SOW with Launchmetrics.
“User” means Customer and/or Beneficiary’s employees, agents, contractors, consultants or other individuals who are authorized by the Customer and/or Beneficiary to use the Hosted Services by using a login thereto and/or whose information is stored on the Hosted Services, or having access to the Professional Services. Terminated employees and other individuals who do not have a login and whose information is stored on the Hosted Services only for archival purposes will not be counted as Users and will not be allowed by Launchmetrics to access the Hosted Services.
1.4. Support. Customer shall communicate all technical support, training, customization, and update requests through email to support@launchmetrics.com.
2.1. Term of the Agreement. This Agreement shall become effective as of the effective date provided in the first page of this Agreement (the “Effective Date”). This Agreement is concluded for a term of thirty-six (36) months (the “Initial Term”). Thereafter, this Agreement shall be automatically renewed, provided that Customer or the relevant Beneficiary is not in default beyond any applicable grace period, on the terms described in this Agreement for successive twelve (12) months periods (each, a “Renewal Term”, and together with the Initial Term, the “Term”). Without prejudice to Sections 2.5.1 and 2.5.2 below, each Renewal Term renews automatically for a twelve (12) months period upon its expiration, unless either Party gives notice to the other at least sixty (60) days prior to the expiration of the relevant Term of said Party’s intention not to renew this Agreement or the relevant SOW.
2.2. Term of the SOW. The SOW, if any, shall become effective upon the effective date mentioned on the SOW signed by Customer or the relevant Beneficiary. The SOW shall be valid for the period defined in each SOW. Notwithstanding the foregoing, each Beneficiary (as identified in each SOW) shall be free to enter into an agreement directly with Launchmetrics following the expiration or termination of this Agreement or in the event a Beneficiary ceases to be an Affiliate of Customer.
2.3. Implementation. The present Agreement shall start to produce legal effects as of the Effective Date set forth above. For the sake of clarity, Customer acknowledges and agrees that Launchmetrics starts to provide its Services upon commencement of the Implementation Phase. The “Implementation Phase” means the set of activities performed by Launchmetrics to set Customer’s platform, including but not limited to the scheduling and performance of training sessions.
2.4. Expiration of Agreement. The expiration of this Agreement will not affect any SOW executed between the Launchmetrics and Customer during the Term of this Agreement, which extends beyond the expiration date of this Agreement. Any SOW will thus remain in full force and effect as per its terms and conditions until its normal expiry date, for the exclusive needs of the on-going SOW(s). However, no SOWs can be extended or renewed after the expiration or termination of this Agreement executed by and between the Customer and Launchmetrics.
2.5. Termination of the Agreement/SOW. Expiration or termination of the Term of the Agreement or the SOW shall not affect any obligation of Customer (or Beneficiary) to make payments hereunder accruing prior to such expiration or termination.
2.5.1. Termination for cause. A Party may terminate this Agreement or the applicable SOW for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) to the extent permitted by Applicable laws, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors
2.5.2. Return of Content or data. Upon request by Customer made after the date of termination or expiration of this Agreement or the applicable SOW, Launchmetrics will make Customer Content as defined in Section 5.1 or other data available to Customer for export or download. After a 30-day period from the effective termination of this Agreement or the applicable SOW, Launchmetrics will have no obligation to maintain, unless legally prohibited, or provide, any Customer Content or data.
3.1. Launchmetrics shall make the Services available to Customer and to the relevant Beneficiary pursuant to the applicable SOW, if any, and as otherwise provided in the terms and conditions set forth in this Agreement.
3.2. Launchmetrics covenants that: (a) it shall provide support for the Services in accordance with the applicable Service Plan and will meet the service level specified in the Service Level Agreement here below ; (b) it shall provide sufficient data storage to store the data generated through the Services; and (c) Customer’s (and Beneficiary’s) data and information entered and gathered through the Services shall be backed-up in a commercially reasonable manner in accordance with the schedule set forth in the Service Level Agreement, including storage of back-up data off the premises of Launchmetrics.
3.3. During the Term, Launchmetrics will ensure to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Personal Data, as described in the Data Processing Agreement (“Data Processing Agreement” or “DPA”) which forms part of the Agreement.
3.4. Launchmetrics commits to comply with all the applicable laws and regulations regarding data transfer among different jurisdictions (for further information please make reference to the DPA), and Customer acknowledges and agrees that Customer Content (as defined in Section 5.1) may be stored at a primary data hosting facility and/or in a cloud-based data hosting service that may entail data transfer operations from and to Launchmetrics (or Beneficiary), Customer and the relevant data hosting service.
4.1. Customer (and each Beneficiary) is responsible for all activities that occur under a User account. Customer (and each Beneficiary) shall instruct Users that use of the Services other than in accordance with the Agreement shall constitute a material breach of the Agreement. Customer (and each Beneficiary) agrees that the password obtained for each User may only be used by such User. Customer (and each Beneficiary) hereby covenants that it shall permit use and access of the Services solely by Users and solely for Customer’s (and each Beneficiary’s) own internal business purposes, and shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than as expressly contemplated by this Agreement.
4.2. Customer shall (a) not modify, copy, translate, disassemble, decompile, adapt, combine, create derivative works based on, or create or attempt to create, by reverse engineering or otherwise, the Services or any component thereof, or use any other means to attempt to discover the source code, algorithms or trade secrets underlying the Services (except and only to the extent these restrictions are expressly prohibited by applicable law); (b) not interfere with or disrupt the integrity or performance of the Services or the data contained therein by (i) attempting to gain unauthorized access to the Services or its related systems or networks; or (ii) knowingly, recklessly or negligently sending or storing any Customer Content or other material containing any technical defects, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (c) not use any of Launchmetrics’ Confidential Information (as defined in Section 8.1 below) and Launchmetrics Intellectual Property Rights (as defined in Section 5.2 below) to create any service, software or other documentation that performs similar functionality, feature and graphic to that of the Services; and (d) not access or attempt to access information concerning (i) other customers of Launchmetrics or (ii) proprietary information of Launchmetrics not related to this Agreement or another agreement currently in force between Customer and Launchmetrics.
4.3. During the Term of the Agreement and for twelve (12) months following the expiration or earlier termination of the Agreement, Customer (and each Beneficiary) shall not directly or indirectly employ or solicit for employment any current or former employee, agent or consultant of Launchmetrics or any of its Affiliates to directly compete with all or any substantial part of the Launchmetrics’ business.
5. Proprietary Rights and License.
5.1. Customer hereby grants to Launchmetrics a nonexclusive, royalty-free, worldwide, right and license to access, host, store, digitally transmit, process and use Customer’s data, information and other materials provided by Customer in electronic or other form, or Customer’s Service usage data (“Customer Content”), solely for the purpose of providing the Service, and as otherwise set forth in this Agreement. Customer shall retain ownership of all Customer Content, subject to the rights and licenses granted herein.
5.2. Customer understands, acknowledges and agrees that the proprietary elements of the Services (excluding Customer Content and Clips as defined below) are and shall remain the sole and exclusive property of Launchmetrics, including but not limited to related technology, software, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions and other tangible and intangible technical material and information as well as all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary rights inherent therein or appurtenant thereto (“Launchmetrics Intellectual Property Rights”). “Intellectual Property Rights” means all works of authorship, software, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions and other tangible and intangible technical material and information as well as all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary rights inherent therein or appurtenant thereto. All rights not expressly granted to Customer herein are reserved to Launchmetrics.
5.3. Launchmetrics represents and warrants to Customer that Launchmetrics has the right to grant to Customer the license to the Launchmetrics Intellectual Property Rights necessary for Customer to use the Services as contemplated herein.
5.4. Each Party grants the other Party a fully paid up, limited, non-exclusive, personal license to use its logo(s) and trademarks (i) for the purpose of performing their obligations under the Agreement, (ii) Customer or each Beneficiary allows Launchmetrics to use its name or logo to identify Customer or each Beneficiary and acknowledge the existence of the Agreement and any partnership with the Customer or each Beneficiary (including in marketing and promotional materials), and (iii) devise and share a success story based on Customer or each Beneficiary, to potential and future customers and interested parties of Launchmetrics. Except as licensed here, each Party retains all right, title, goodwill, and interest in and to its trademarks and logo(s). In using each other’s trademarks or logos, the Parties will follow any guidelines for logo or trademark usage provided by the owner of the trademark or logo being used.
5.5. [applicable to the Discover Services only]. Customer acknowledges that all the images and other content made available by Launchmetrics in connection with data integration services or press and/or web review services (the “Clips”) are provided solely for Customer’s internal data verification purposes and shall be used by Customer solely for such purposes. Nothing contained in the Agreement shall be deemed to grant Customer, its employees or any other party any right to further copy, reproduce or otherwise use such content. The Clips provided by the Launchmetrics in performing the Agreement may be protected by third party intellectual property rights, under the provisions of the intellectual property code, or by international conventions. If Customer desires to make any other use of the Clips, Customer must obtain a license to do so directly from the applicable titleholders or their direct or legal assignees. Customer shall notify all of its employees to whom Customer provides access to the related Service or the Clips of the limitations set forth in this Section. Customer alone will be responsible for the said uses and must obtain authorisation from the titleholders concerned or from their assignees. Customer acknowledges that Launchmetrics shall not be liable for any Clip made available to Customer in connection with the Agreement. Launchmetrics provides no guarantees or commitments concerning the accuracy, relevance, quality, comprehensiveness or correctness of the Clip. Customer acknowledges that Launchmetrics does not possess the means to verify that the Clip is in no way prejudicial to Customer or a third party. In particular, Launchmetrics will bear no liability in the event that the Clip or Customer’s use thereof (i) infringes the rights of third parties including their intellectual property rights, rights of privacy or rights of publicity, or (ii) is incomplete, inaccurate or defamatory. Customer acknowledges and agrees that the sources of information gathered by Launchmetrics to make available the Clip are not subject to Launchmetrics’ control, and Launchmetrics therefore declines all liability with regard to the Clip, and Customer is barred from raising claims with regard to the Clip or the related Service.
6. Service Monitoring, Analyses.
6.1. Customer acknowledges and agrees that Launchmetrics may monitor and track usage of the Services to verify compliance with the use and access rights granted hereunder and compliance with contractual obligations, to help resolve Customer requests; to detect and address threats to the functionality, security, integrity, and availability of the Services, or to prevent violations of applicable laws provided that such monitoring does not interfere with Customer’s use of the Services.
6.2. Launchmetrics can, in compliance with the applicable data protection laws, or intellectual property rights, and without prejudice to any confidentiality obligations, use and compile statistical and other information related to the performance, operation and use of the Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (collectively referred to as “Analyses”). Launchmetrics may make the Analyses publicly available; however, the Analyses will not incorporate any Customer Content, Personal Data or Confidential Information in a form that could serve to identify Customer or any individual. Launchmetrics retains all intellectual property rights in the Analyses.
6.3. Customer grants to Launchmetrics and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback (“Feedback”) provided by Customer or Users relating to the operation of Launchmetrics’ or its Affiliates’ services. Launchmetrics shall own any developments and/or enhancements to the Services resulting from its performance of the Services in accordance with this Agreement.
7.1. The fees due to Launchmetrics by Customer (and/or a Beneficiary) in consideration of the Services will be specified in each applicable SOW, if any, or as otherwise provided in the Order Form, together with the terms and invoicing frequency set (the “Fees”). Unless otherwise agreed to in the applicable SOW or schedule, payment of undisputed amounts in each invoice shall be due within thirty (30) days of the date of such invoice.
It is agreed between the Parties that the performance of any additional services requested by Customer that are not included within the Services given their scope and nature shall not be included in the Fees initially agreed to between the Parties (e.g., additional training purchased by Customer).
7.2. If Customer fails to pay the Fees by its due date, and provided the delay is not attributable to a violation by the Launchmetrics, late charges up to five percent (5%) per month or the maximum legal rate of interest that may lawfully be charged to Customer according to the Applicable Law shall also become due and payable by Customer to Launchmetrics upon demand by Launchmetrics (“Late Fees”). Additionally, if Customer’s Fees are more than thirty (30) days overdue, Launchmetrics reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts, including any applicable Late Fees, have been paid in full.
7.3. Launchmetrics’ fees do not include any local, state, federal or other taxes, levies or duties of any nature (“Taxes”). nor any payment processing fees that Launchmetrics may incur in processing Customer’s payments, and which will be invoiced and charged on Customer separately according to the regulations of the appropriate tax authorities.
7.4. Upon the expiration or early termination of this Agreement, all payment obligations and any outstanding financial obligations of Customer hereunder for the then-current Term will be accelerated and will immediately become due and payable.
7.5. Launchmetrics shall have the right to collect from Customer its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement, including any costs for the collection of monies from Customer.
7.6. Launchmetrics may increase the current pricing for the Services, one time per calendar year following on each anniversary of the Effective Date by the greater of (i) ten (10)% or (ii) an amount equal to the general rate of inflation applicable to the Customer’s jurisdiction as measured by the Consumer Price Index or local equivalent for the previous year.
7.7 If a purchase order number (“PO Number”) is required for processing an invoice, Customer will provide such a PO Number in the dedicated section above. If the issuance of a PO Number is delayed, Customer will provide a PO Number within 60 days of the Services Effective Date via email to ar@launchmetrics.com. In case of failure to provide the PO Number within the timeframe set above, Launchmetrics will proceed with the standard invoicing process. It is understood by the Parties that the period for payment of the Fees shall commence as of the applicable invoice date. Such payment period shall not restart based on any delays in issuing a PO Number or any other Customer required procurement process.
8.1. “Confidential Information” means all information disclosed by one Party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with the Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure and whether deliberately or unintentionally disclosed to the Receiving Party that has not been in the public domain. In particular, with respect to Launchmetrics, Confidential Information includes the Services (including source, object and any other code) and the fee structure of the Agreement.
8.2. The confidentiality obligations shall not apply in the following circumstances for any information that: (i) has been approved for release by written authorization of Disclosing Party; (ii) is or becomes part of the public domain through no fault of the Receiving Party; (iii) was already known by Receiving Party prior to its relationship with the Disclosing Party, or prior to the disclosure thereof by Disclosing Party; or (iv) properly comes into the possession of Receiving Party from a third party which is not under any obligation to maintain the confidentiality of such information. Additionally, the Receiving Party may disclose Confidential Information of the Disclosing Party without being in breach of this Section if (and only if) such disclosure is required by applicable law or regulation or by order of a court, an arbitrator or other regulatory or public body having jurisdiction over the Receiving Party, provided that the Receiving Party shall, as far as it is lawfully possible to do so, provide the Disclosing Party with reasonable prior notice of such requirement and the terms of and circumstances surrounding such requirement so that the Disclosing Party may have the opportunity to contest the disclosure and/or seek an appropriate protective order or other remedy, and/or try to obtain confidential treatment thereof. All Confidential Information of a Party shall remain the property of such Party.
8.3. Each Party, as Receiving Party, agrees that for the Term of this Agreement and for twelve (12) months following the expiration or earlier termination of this Agreement, or of the relevant SOW, if any, it shall: (i) refrain from passing Confidential Information on to anyone, except to (a) its duly identified employees or authorized subcontractors and (b) any third party previously and expressly authorized in writing by the Disclosing Party to access Confidential Information (hereinafter, collectively, the “Authorized Recipients”). In any case, such Authorized Recipients shall only have access to Confidential Information on a need to-know basis for the strictly necessary purpose of performing the Agreement and/or SOW as applicable and provided that they are bound by confidentiality and security obligations at least as strict as the ones contained herein;
(ii) adopt all appropriate technical, organizational and physical measures to safeguard the Confidential Information and avoid its disclosure to recipients other than the Authorized Recipients. Such measures shall include, but not be limited to, the highest degree of care that the receiving party uses to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care;
(iii) not remove any copyright notice, trademark notice, and/or other proprietary legend set forth on or contained within any of the Confidential Information.
8.4. Failure of the Parties to comply with Section 8.3 shall be deemed a material breach as set forth in Section 2.
9. Representations and Warranties.
9.1. Each Party represents and warrants that: (i) it has the right and power to enter into the Agreement; (ii) it has the means to meet all its obligations under the Agreement; (iii) the Agreement is enforceable against such Party in accordance with its terms; (iv) no claims, liens or actions exist or are threatened that would interfere with such Party’s ability to fully perform under the Agreement and the Agreement is valid, legal and binding; (v) the Agreement does not contravene and is not otherwise limited by any other agreement to which such Party is a party; and (vi) it shall not authorize or assist any third party in taking any action that such Party is prohibited from taking under the Agreement.
9.2. Launchmetrics warrants that the Services will meet the terms of the Service Level Agreement provided here below during the Term. The only remedies for breach of this warranty are those provided in the Service Level Agreement, except for damage or loss arising out of the willful misconduct or negligence of Launchmetrics.
9.3. Customer represents and warrants that: (a) it must not knowingly do anything inconsistent with Launchmetrics’ rights in and ownership of the Services; and (b) it has the right to provide the Customer Content to Launchmetrics for the purposes contemplated herein.
9.4. Disclaimers and Limitation of Liability. EXCEPT AS PROVIDED IN THE AGREEMENT, THE SERVICE AND ALL INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE”, AND LAUNCHMETRICS MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, IN FACT OR BY LAW OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING, INCLUDING BUT NOT LIMITED TO THE SERVICES (OR ANY PART THEREOF) ACCURACY, TIMELINESS, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, FREEDOM FROM COMPUTER VIRUSES AND, COMPATIBILITY OF ANY PARTICULAR SOFTWARE OR HARDWARE WITH THE SERVICES AND DISCLAIMS THE REPRESENTATIONS, OBLIGATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE SERVICES.
NEITHER PARTY, SHALL BE ABLE TO CLAIM A LIMIT ON ITS LIABILITY FOR: (i) WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; (ii) FAILURE TO COMPLY WITH ITS CONFIDENTIALITY OBLIGATIONS; (iii) FAILURE TO COMPLY WITH ITS OBLIGATIONS RELATED TO PERSONAL DATA PROCESSING AND SECURITY.
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER OR THE BENEFICIARY USE OF THE SERVICES OR ANY THIRD PARTY’S USE OF THE SERVICES. THESE EXCLUSIONS INCLUDE, WITHOUT LIMITATION, ANY LOSS OF BUSINESS, CONTRACTS, PROFITS, GOODWILL, REVENUES, ANTICIPATED PROFITS, LOST DATA, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION OR THE VIOLATION OF CUSTOMER OR THE BENEFICIARY RIGHTS BY ANY THIRD PARTY, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF CUSTOMER OR THE BENEFICIARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, OR OTHERWISE
NOTWITHSTANDING THE FOREGOING, LAUNCHMETRICS ’ AGGREGATE LIABILITY LIMITED TO PROVEN DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER PURSUANT TO THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD BEFORE THE APPLICABLE CLAIM OCCURRED.
10.1. Launchmetrics shall indemnify, defend, and hold harmless Customer, its Affiliates, and their members, shareholders, directors, officers, employees, and agents from and against any third-party claims, costs, expenses, demands, causes of action, losses or liability (collectively “Claims”, including reasonable attorneys’ fees and disbursements) arising out of Launchmetrics’ breach of the representation or warranty set forth in Section 9 above. The foregoing indemnity constitutes Launchmetrics’ sole liability and Customer’s sole remedy in the event of any third-party Claim relating to the Services.
10.2. Customer shall indemnify, defend, and hold harmless Launchmetrics, its Affiliates, and their members, shareholders, directors, officers, employees, and agents from and against any Claims that, if true, would constitute a breach of any of Customer’s representations, warranties, obligations, covenants or agreements hereunder.
Customer shall promptly notify Launchmetrics of any action or claim brought against it, and which would result in Customer invoking the indemnity clause. Upon Launchmetrics accepting that the relevant action or claim is covered by the indemnity clause, Customer shall allow Launchmetrics to control that defense exclusively.
11.1. Survival. All provisions of the Agreement relating to payment, proprietary rights, confidentiality, indemnification, disclaimer of warranty and limitation of liability shall survive the expiration or sooner termination hereof.
11.2. Complete Understanding. The Agreement and any accompanying schedule(s) are the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous proposals, understandings and all other oral and written agreements and discussions between the Parties relating to the subject matter hereof.
11.3. Assignment. Customer may not assign the Agreement (or any rights or obligations related thereto) without the prior written consent of Launchmetrics, whose consent shall not be withheld unreasonably. Any assignment in contravention of this Section 11.3 shall be null and void. The Agreement shall be binding upon and shall inure to the benefit of the Parties, their heirs, administrators, successors, and permitted assigns.
11.4. Force Majeure. Except for obligations to pay amounts due pursuant the Agreement, neither Party will be liable for any failure in performance due to any Force Majeure Events. “Force Majeure Events” shall be circumstances beyond a Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, pandemics or epidemics, acts of terror, strikes or other labor problems not involving a Party’s employees, computer or telecommunications failures or delays involving hardware or software not within such Party’s possession or reasonable control, and network intrusions or denial of service attacks.
11.5. Notices. Customer shall provide in the Customer Information section above an email address for notices under this Agreement. Any notice required under this Agreement shall be provided to the other Party in writing. If Customer wishes to provide a notice under the indemnification clause of this Agreement, or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: legal@launchmetrics.com. Launchmetrics may give notices applicable to customers by means of a general notice in the Hosted Services, and notices specific to Customer by electronic mail to the email address provided in the Customer Information section above. Any Party may change the address to which communications are to be directed by giving written notice of the new address to the other Party in the manner provided in this Section.
11.6. Severability. If any part of the Agreement is held by an arbitrator or any court of competent jurisdiction to be unenforceable, the remaining provisions of this Agreement will remain in effect.
11.7. Governing Law, Jurisdiction and Venue. The Agreement shall be governed by and interpreted in accordance with the laws of the jurisdiction where Launchmetrics has its primary address as indicated in this Agreement without regard to choice or conflicts of law rules (the “Applicable Laws”). In the event of a dispute that may arise between the Parties regarding the validity, implementation, interpretation or termination of the Agreement and/or SOW as the case may be, the Parties undertake to work together diligently and in good faith to amicably settle the dispute. If, however, the dispute cannot be settled amicably within a period of sixty (60) days from the receipt of a letter notifying the other Party of the existence of a disagreement, the commercial court where Launchmetrics has its primary address as indicated in this Agreement shall have exclusive jurisdiction without regards to the plurality of defendants or the introduction of third parties. The obligation to comply with the aforementioned deadline does not apply to emergency, interim, summary or ex parte proceedings.
11.8. Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute a single agreement. This Agreement may be executed by one or both Parties by means of electronic signature technology that has all the characteristics required to be legally binding as per the laws governing this Agreement.
SCHEDULE A
Service Descriptions
1. ContactsSM. The Service that allows Users to track and manage contact information and conduct contact mailings. Contacts is accessible through Launchmetrics’ proprietary application.
2. SamplesSM. The Service that allows Users to track product samples, and produce reports through a web-enabled interface. Samples is also accessible through Launchmetrics’ proprietary application software for iPads, iPhones and other mobile platforms.
3. EventsSM. The Service that allows Users to manage events by organizing and sending invitations, tracking R.S.V.P.s, creating interactive seating charts, managing guest preferences and attendance and performing related functions through a web-enabled interface. Events is also accessible through Launchmetrics’ proprietary application software for iPads, iPhones and other mobile platforms.
4. DiscoverSM. The Service that allows Users to monitor and analyze Customer’s public relations exposure in print, online and social media sources, and to create reports and conduct competitive benchmarking, all through newsletter and online coverage books, and export media coverage reports.
5. DMRSM. The Service that allows Users to view, monitor, and analyze press coverage in print, online, and social media sources through platforms, email alerts, and reports.
6. GalleriesSM. The Service that allows Users to create public image galleries on GPS Radar or Launchmetrics SpotlightSM, that can then be shared with viewers in an email containing a link to the relevant gallery (each, a “Gallery”). This Service also allows Users to enable certain functionality for those viewers.
7. InsightsSM. The Service that allows Users to benchmark brand performance across print, online and social media channels against the industry and a set of competitors and to analyze marketing effectiveness across channels and platforms.
8. Launchmetrics SpotlightSM. The Service that allows Users to access visual assets (e.g., photos, videos) of Fashion, Lifestyle and Beauty content (e.g., runway, backstage, streetstyle). FOR FURTHER INFORMATION, PLEASE READ GENERAL TERMS AND CONDITIONS OF SALE FOR LAUNCHMETRICS SPOTLIGHT SERVICES.
9. Data (Reporting) Services.The Services that help brands calculate the impact and ROI of events, campaigns and product or collection launches and evaluate top performing voices and channels.
10. Solution Engineering. The Services operated by Launchmetrics employees to help brands evaluate technical integration and hardware options for the Samples services and conduct set-up configuration of the integration and/or specified hardware option
11. Implementation Services. The Project management Services conducted by Launchmetrics employees to oversee and execute the timely onboarding and training of Customers.
Service Level Agreement
This agreement represents the Service Level Agreement (“SLA”) and provides the terms and conditions for the level of service and operational support levels which Launchmetrics shall provide to Customer and the remedies available to Customer. This SLA remains valid until superseded by an amendment executed in writing by and between the Parties. This SLA shall be construed and interpreted as an integral part of the agreement signed between Customer and Launchmetrics (the “Agreement”). For the sake of clarity, any reference to Customer in this Agreement shall refer also to each Beneficiary that entered into a SOW.
A. DEFINITIONS
For the avoidance of doubt, any capitalized terms not defined in this SLA shall have the meanings set forth for such terms elsewhere in the Agreement.
“Error” means any time during which a problem with the Service would prevent the Customer from logging in or accessing the Service, excluding any problem, failure or error due to any Customer action or failure to take a required action, any other software, hardware, facilities or equipment that the Launchmetrics has not supplied or approved for use by the Customer (other than third party equipment within Launchmetrics’ direct control).
“Incident” means Error and Unplanned Downtime.
“Planned Downtime” means scheduled maintenance and software or application upgrades, or setting up a new customer or service and service modifications.
“Resolve” and the correlative terms, “Resolved”, “Resolving” and “Resolution” each mean that the Services are restored to a point where the Customer can perform their job. In some cases, this may only be a work around solution until the root cause of the Error or Unplanned Downtime is identified and corrected (the need for restoration of normal service supersedes the need to find the root cause of the Incident).
“Response Time” means the time elapsed between the time the Incident is reported and the time it is assigned to an individual for resolution.
“Service Credits” means the service credits specified below.
“Service Window” means the time period during which the Launchmetrics will provide support to the Customer.
“Support Services” means the support (remote, online, on-site and training hours) provided by the Launchmetrics during the Service Window. “Unplanned Downtime” means disruption or unavailability of the Services caused (i) by any other extraneous factors or circumstances beyond Launchmetrics’ reasonable control, including any Force Majeure Event or Internet access or related problems or downtime or delays caused by a third party; (ii) that result from any maintenance as provided in an agreement between Launchmetrics and a data hosting provider.
B. SERVICE PLANS
Nature and Severity of the Incident.
Severity is determined by the level of impact an issue has on the users’ ability to use the Services. For the purposes of this SLA, there are three grades of severity:
3 – Low – Incident prevents the Customer from performing a portion of its duties.
2 – Medium – Incident prevents the Customer from performing critical time sensitive functions.
1 – High – A Service, or major portion of a Service, is unavailable.
Customer acknowledges and agrees that Launchmetrics in its own discretion shall determine the severity of an Incident. The severity of an Incident will be used in determining the priority for resolution within the Response Time as set forth in the section below.
Service Plans Description.
All Support Services shall be provided in English unless otherwise agreed between the Parties or part of the selected Service Plan (GENIUS). Customer should ensure that a Customer representative(s) will be available to assist the Launchmetrics with the resolution of the issue detected.
There are two levels of Service Plan available from Launchmetrics. Each level provides a specific level of Support Service, as described below.
| SERVICE PLANS | GEEK | GURU | GENIUS |
| Service windows (1) | Monday-Friday, 9AM CET to 6 PM EST (Service window may be impacted by any applicable statutory holidays) | Monday-Friday. 9AM CET to 6PM EST (Service window may be impacted by any applicable statutory holidays) | Monday-Friday. 9AM CET to 6PM EST (Service window may be impacted by any applicable statutory holidays) |
| Response Time (2) | Within eight (8) business hours | Six (6) business hours | Three (3) business hours |
| Remote Support (3) | Phone support, email support, live screen sharing plus a help section | Phone support, email support, live screen sharing plus a help section | Phone support, email support, live screen sharing plus a help section |
| Onsite Support (4) | Paid option upon approval, availability and customer's location | Paid option upon approval, availability and customer’s location | Paid option upon approval, availability and customer’s location |
| Platform Training (4) | Zero (0) training hours included. Additional hours available at $250/Hour, £200/ Hour, €225/Hour. | Six (6) training hours included. Additional hours available at $250/hour, £200/hour, €250/hour | Nine (9) training hours included. Additional hours available at $250/hour, £200/hour, €250/hour |
| Business Reviews (5) | Review sessions are not included but can be provided upon request. A review session is available starting at $250/Hour, £200/ Hour, €225/Hour. | Up to two (2) review sessions with your Customer Success Manager who will review your Service usage to provide insights and work with your team to understand your goals and strategies and advise how to best use the system to best achieve and measure those goals. | Up to four (4) review sessions with your Customer Success Manager who will review your Service usage to provide insights and work with your team to understand your goals and strategies and advise how to best use the system to best achieve and measure those goals |
| Maintenance (6) | All regular and emergency maintenance of the software is included | All regular and emergency maintenance of the software is included | All regular and emergency maintenance of the software is included |
| Data Backups (7) | Daily data back-ups | Daily data back-ups | Daily data back-ups |
| System Updates (8) | Included | Included | Included |
(1) Service Window. All Response Time and Service Windows are only available in EST and CET time zones and refer to the time it takes Launchmetrics to respond to an enquiry or request from a customer, not the time to generate a solution. All Response Times and Service Windows might be affected by the occurrence of a Force Majeure Event(as defined in the Agreement). Launchmetrics’ and any Affiliates’ personnel will be available to handle service/support matters during the Service Window indicated above, except for statutory holidays (or any designated holidays by the Launchmetrics’ or any of its Affiliates – collectively referred as “Holidays”) applicable to Launchmetrics or any of its Affiliates. Assistance outside of the Service Window times and during Holidays may be available to Customer, if agreed in writing by the Parties.
(2) Response Time. Launchmetrics will respond to Customer’s service/support-related inquiries and requests within the applicable Response Time as indicated above; provided, however, that the Response Time is only effective during the Service Window for that day. In case there are fewer hours remaining in the Service Window than are in Customer’s Response Time (as set forth in the table above), the Response Time will extend into the next date with a Service Window. Please note that on most days, the Service Window extends from 9 AM CET to 6 PM EST (except as otherwise provided in this SLA).
The response from Launchmetrics will not be an automated response but a specific acknowledgement by Launchmetrics personnel regarding the issue submitted. For the avoidance of doubt, Response Time refers to a response only; the time required for a solution to any submitted issue will be determined on a case-by-case basis only.The Response Time is determined by the time at which Launchmetrics receives such e-mail, not the time at which such email was sent.
Launchmetrics’ ability to comply with this Section may be impacted by Customer’s failure to cooperate or provide necessary resources or information to Launchmetrics as well as if Customer sends a Service/support-related inquiry or request in a language other than English, unless Customer has made specific arrangements with Launchmetrics for support in non-English languages.
(3) Remote Support. Reference is made below to the means that Launchmetrics will use to respond to any Customer communications related to service/support matters during the Service Window. The Support Services may be provided using a screen sharing application. As such Customer shall ensure to be able to use the same screen sharing application used by Launchmetrics and to have a functional Internet connection. Launchmetrics is in no way responsible for, and shall in no way be liable for, the failure of Customer to successfully use the screen sharing application used by Launchmetrics.
(4) Support activities (other than Remote Support).
i. Online Support. Launchmetrics will provide Online Support to Customer to assist on a Service-related inquiry.
Platform Training. Each year, Launchmetrics will provide training hours to Customer as included in each Service Plan. Cancellation of scheduled Platform Training activities will not be accepted later than one (1) hour before the start time of the relevant support activities. Customer will be charged, and will be obligated to pay for any Support Service canceled less than one (1) hour before the scheduled time.
ii. Onsite Support. [applicable to the Event Service only] Launchmetrics may provide Onsite Support to assist on site events organized through the Events Service provided that (i) Customer requested Onsite Support at least thirty (30) days before the relevant event or as otherwise agreed in writing by the Parties, and (ii) Launchmetrics’ personnel is allowed to travel to the event location and to attend the event pursuant to the laws and regulations that from time to time may regulate travels among different countries and/or regions. Onsite support fees shall be agreed in writing between Launchmetrics and the relevant Customer in addition to any other support fees (“Onsite Support Fees”). Any cancellation of Onsite Support within thirty (30) days of the event will be charged.
Support Services cannot be requested in periods of less than one hour and, for purposes of determining usage of a Support Services, all partial hours of any Support Services provided will be rounded up to the next whole hour. For example, if the Launchmetrics provides three hours and thirty minutes of Online Support or Platform Training, for account management and, if applicable, invoicing purposes, it will be considered that the Customer received four hours of Online Support or Platform Training.
(5) Business Review. Sessions during which Launchmetrics personnel will consult with Customer in regards to Customer’s use of the Service and any Customer feedback or other comments related to that usage.
(6) Maintenance. All regular and emergency maintenance of the software is included at no extra charge. Customer, will be notified within a reasonable time of any maintenance that could disrupt the Services availability and, in any case, before the occurrence of a Planned Downtime.
(7) Backups. Launchmetrics shall backup Customer Content (as defined in the Agreement) at the frequency set forth in the table above.
(8) System Updates. All Service updates initiated by the Launchmetrics are included at no extra charge.
C. SERVICE AVAILABILITY
Launchmetrics commits to provide 99.5% availability with respect to the Customer’s Service during each calendar month of the Term, excluding Planned Downtimes (“Service Availability”). If, in any calendar month, this Service Availability is not met by the Launchmetrics, and Customer was negatively impacted (attempted to log into or access the Service and failed due to an Incident), the Launchmetrics shall provide, as the sole and exclusive remedy, a service credit based on the monthly fee for the use of the Service (“Service Credit”), as follows:
| Service Availability | <99.5% and >= 99.1% | <99.1% and >= 97.0% | <97.0% |
| Service Credit | 2% | 5% | 10% |
Launchmetrics measures the Service Availability over each calendar month by dividing the difference between the total number of minutes in the monthly measurement period and any Unplanned Downtime or Error (provided that the relevant Error did not result from a Customer cause) by the total number of minutes in the measurement period, and multiplying the result by 100 to reach a percent figure.
Launchmetrics shall calculate any Unplanned Downtime using the Launchmetrics’ system logs and other records. Unplanned Downtime does not include any time during which the Services are not available due to any suspension or termination of the applicable Service, or any other unavailability or performance issue that results from Customer’s and/or a third-party’s equipment, software, services, or other technology (other than third party equipment or services within Launchmetrics’ direct control).
Scheduled maintenance does not count as Unplanned Downtime for the purposes of calculating a Service Credit. Maintenance is considered to be ‘scheduled’ if it is communicated (i) in accordance with the notice section set forth in the Agreement, and (ii) communicated within a reasonable time.
Customer acknowledges and accepts that payment of the Service Credits set forth above in this Section shall constitute Launchmetrics’ sole liability, and Customer’s sole recourse, for any Error or Unplanned Downtime or other disruption or error in the Services. The Parties acknowledge and agree that Customer’s harm caused by Launchmetrics’ delayed delivery of the Support Services would be impossible or very difficult to accurately estimate as of the Effective Date of the Agreement, and that the Service Credits are a reasonable estimate of the anticipated or actual harm that might arise from Launchmetrics’ breach of its obligations under this SLA.
Launchmetrics shall, for each invoice period under the Agreement, issue to Customer, together with Launchmetrics’s invoice for such period, a written acknowledgment setting forth all Service Credits to which Customer has become entitled during that invoice period. Launchmetrics shall pay the amount of the Service Credit as a debt to Customer within thirty (30) days of issue of the Service Credit acknowledgment.
This SLA and Service Credit do not apply to any Launchmetrics performance or service issues (a) due to factors outside Launchmetrics’ reasonable control; (b) that resulted from use of Customer’s or third party hardware or software; (c) that resulted from actions or inactions of Customer or third parties; (d) caused by Customer’s use of the Service after Launchmetrics advised Customer to modify its use of the Service, if Customer did not modify its use as advised; (d) attributable to any other software, hardware, facilities, or equipment that the Launchmetrics has not supplied or approved for use by the Customer or (e) attributable to the acts or omissions of Customer or Customer’s employees, agents, contractors, or vendors, or anyone gaining access the Services by means of Customer’s passwords or equipment.
Any release preview, beta, demo, developer and any other nonproduction or test environments are expressly excluded from this or any other service level commitment.
This SLA document may be amended at any time by the Launchmetrics in its discretion. Updates will be effective thirty (30) days after providing notice to Customer in accordance with the Notice Section of the Agreement.
Pdf – Master Services Agreement Terms and Conditions effective as of August 21, 2019.
Pdf – Master Services Agreement Terms and Conditions effective as of May 1, 2020
Pdf – Master Services Agreement Terms and Conditions effective as of May 25, 2021