-
INSTAPAGE, INC.
INSTAPAGE, INC. MASTER SERVICES AGREEMENT
CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING MASTER SERVICE AGREEMENT BEFORE EXECUTING THE STANDARD INSTAPAGE ORDER FORM (“ORDER FORM”) WITH INSTAPAGE, INC. DBA INSTAPAGE (“INSTAPAGE”). THE FOLLOWING FULL SERVICE CLIENT MASTER SERVICE AGREEMENT TOGETHER WITH THE ORDER FORM (COLLECTIVELY, THE “AGREEMENT”) GOVERNS YOUR USE OF OUR INSTAPAGE WEBSITE LOCATED AT WWW.INSTAPAGE.COM (THE “SITE”) AND THE INSTAPAGE CONVERTING SOLUTION AVAILABLE VIA OUR SITE (TOGETHER WITH THE SITE, THE “SERVICES”) AND IS LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE ORDER FORM. BY ACCEPTING THIS AGREEMENT THROUGH THE EXECUTION AND SUBMISSION OF THE ORDER FORM, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS 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 TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
1.1 By executing the Order Form, Customer accepts and agrees to be bound by this Agreement. Use of the Services, products or Content presented in any or all areas of this Site constitutes your agreement that you will not use the Services for any unlawful purpose and that you will abide by this Agreement. If you do not agree to all the terms and conditions in this Agreement, you may not use the Services.
1.2 Please also refer to our Privacy Policy for information on how we collect, use and share your information. You acknowledge and agree that your use of the Services is subject to our Privacy Policy privacy policy available at https://Instapage.com/privacy-policy/
1.3 In consideration of (and subject to) the payment of the fees and marketing obligations listed on the applicable Order Form, or as provided in Section 5.1 (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Instapage will use best efforts to provide Customer the Services selected in the Order Form and the applicable General Service Level Support Terms (as described on Exhibit B attached hereto and incorporated herein).
2.1 Instapage retains all right, title, interest (including, but not limited, to intellectual property rights) in and to the Services and, subject to Customer’s rights to the Customer Content, exclusively owns anything developed and delivered under this Agreement. Nothing in this Agreement shall be construed as granting Customer any right, title or interest in or to the Services or any intellectual property developed or delivered under this Agreement.
2.2 Subject to all terms of the Agreement, Instapage hereby grants to Customer, for the term set forth herein, a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use within Customer’s business, the Services for Customer’s use only (and only in accordance with any applicable documentation).
2.3 Upon approval by Customer, Instapage may (i) produce and publish a case study on its website regarding the Customer’s use of the Services, and (ii) create self-promotional materials such as press releases, advertisements, brochures, etc. Upon approval by Customer, Customer shall provide a mutually agreeable quote with respect to Instapage and the Services, to be used for Instapage’s marketing and publicity purposes.
3.1 Customer will not (and will not allow any third party to), directly or indirectly:
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.
4.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In connection with the performance and provision of the Services, Customer acknowledges and agrees that Instapage will collect and shall own general user and visitor metadata and may use the aggregate response rate and other aggregate measures of the Services’ performance, in order to provide improved Services to the Customer, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed. All other data collected about visitors via the Services, including information collected about visitors by Customer using Instapage [forms] is owned by the Customer and may be permanently deleted at any time by the Customer.
5.1 Customer will pay Instapage the Fees for the Services as listed on the applicable Order Form, or as provided in this Section 5.1 with respect to any Renewal Term (defined below). All Fees paid under this Agreement are nonrefundable, except as provided in Section 6 below.
5.2 If Customer believes that Instapage has billed Customer incorrectly, Customer must contact Instapage no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit, if appropriate. Inquiries should be directed to Instapage’s customer support department.
5.3 Instapage may choose to bill through an invoice, in which case full payment for invoices issued in any given month must be received by Instapage thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Instapage’s net income.
6.1 Subject to earlier termination as provided below, the initial Service term is as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional terms (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current Term.
6.2 In addition to any other remedies it may have, Instapage may also terminate the Order Form upon ten (10) calendar days written notice if Customer materially breaches any of the terms or conditions of the Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer, Customer shall pay in full all remaining Fees payable through the remainder of the Term. If the Order Form is terminated as a result of a material breach by Customer after the Initial Service Term, Customer will pay in full for the Services up to and including the last day on which the Services are provided.
6.3 Termination (which includes expiration or non-renewal) of the Order Form shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form.
6.4 Customer may terminate this Agreement upon thirty (30) calendar days written notice if Instapage breaches any of the terms of conditions of the Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within that thirty (30) day period.
6.5 Upon the termination of the Agreement or Services, Customer’s right to access or use the Services shall terminate. In addition, Instapage may delete Customer’s Account and Customer Content (as defined below) immediately upon termination or Instapage may keep Customer’s Account and Customer Content for up to 60 days following the last day of the month of termination. Landing Pages developed for Customer under this Agreement are only available in Customer’s Account so long as Customer remains a customer of Instapage.
6.6 The parties’ rights and obligations under Sections 3 (“Restrictions and Responsibilities”), 4 (“Confidentiality”), 5 (“Payment of Fees”), 8 (“Indemnification”), 9 (“Warranty and Disclaimer”), 10 (“Limitation of Liability”), and 11 (“Miscellaneous”) shall survive termination of the Agreement.
7.1 Instapage agrees, at its own expense, to indemnify, defend and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with the Order Form infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Instapage in writing of any such suit, claim or proceeding, (ii) allows Instapage, at Instapage’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Instapage all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Instapage’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Instapage, including, but not limited, Customer Content, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Instapage’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
7.2 Customer hereby agrees, at its own expense, to indemnify, defend and hold Instapage harmless against any suit, claim, or proceeding that arises from Customer’s breach of this Agreement, or otherwise from Customer’s use of Services excluded from Instapage’s aforementioned indemnity obligations in the second to last sentence of Section 8.1, above.
INSTAPAGE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND INSTAPAGE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PURPOSE AND NON-INFRINGEMENT. Further, Instapage makes no representation or warranty as to the reliability, accuracy, completeness or authenticity of any information contained in the Site. Customer agrees that it must evaluate, and bear all risks associated with, the use of any data, information, and other materials and content (collectively, “Content”) on the Site (including risks relating to the infringement or potential infringement of third party intellectual property rights), that Customer may not rely on said Content, and that under no circumstances will Instapage be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content on the Site or obtained through the Site.
IN ADDITION, CUSTOMER ACKNOWLEDGES THAT INSTAPAGE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. INSTAPAGE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, OTHER THAN WITH RESPECT TO CLAIMS ARISING OUT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, A BREACH OF SECTION 4, INSTAPAGE SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT (INCLUDING THE ORDER FORM) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO INSTAPAGE FOR THE APPLICABLE SERVICES UNDER THE AGREEMENT OR RELATING TO ANY SUBJECT MATTER THEREOF IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY,EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF INSTAPAGE, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY INSTAPAGE, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED HEREIN. If applicable law limits the application of the provisions of this Section 10, a party’s liability will be limited to the maximum extent permissible.
10.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.
10.2 The Agreement is not assignable, transferable or sublicensable by Customer except with Instapage’s prior written consent but may be assigned by Instapage without restriction.
10.3 Both parties agree that this Agreement, including all exhibits, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein.
10.4 No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind or attempt to bind Instapage in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.5 This Agreement may be executed in one or more counterparts.
10.6 The Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to the Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Order Form.
1. Up-Time and Reliability. Instapage will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99.9% of all Scheduled Availability Time. “Scheduled Availability Time” shall be measured on a monthly basis, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Instapage (such as internet outages or outages with respect to Customer’s network or internet access). Instapage shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. In the event of any unexcused downtime, Instapage will credit the prorated amount to the Customer.
2. Maintenance. Instapage will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services.
3. Support. Instapage is available to receive product support inquiries via email or the Instapage website 24 hours per day. Instapage Standard Support Hours are 02:00 AM to 05:00 PM Pacific Time Monday through Friday for support regarding Customer’s use of the Services. An emergency Support Hotline is available 24 hours per day at (1) 855-856-3501.
4. Customer Support List. Customer shall provide to Instapage, and keep current, a list of designated contacts and contact information (the “Support List”) for Instapage to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
5. Classification of Problems. Instapage shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.
6. Uptime Service Credits
If the Scheduled Availability Time for Customer’s landing pages in any one month is less than 99.9%, then Customer shall receive credits according to the following schedule:
99.00% – < 99.9% Service Uptime in any given month: 10% of Monthly Service Fee credit for that month
95.00% – < 99.00% Service Uptime in any given month: 25% of Monthly Service Fee credit for that month
< 95.00% Service Uptime in any given month: 50% of Monthly Service Fee credit for that month
7. Severity Levels And Reponse Times
| P1 | Mission Critical. Data collection services and data reporting services are down, causing critical impact to business operations; no workaround available | Escalation in accordance with provisions in “Escalation procedures” section below. | ‘INSTAPAGE will provide a status update by telephone and/or e-mail within one (1) business hour within the initial occurrence of the P1 issue. INSTAPAGE’s goal for resolution of P1 issues is within one (1) calendar day of Customer’s receipt of issue notification. | INSTAPAGE will provide a status update by telephone and/or e-mail within four (4) business hours within the initial occurrence of the P1 issue. |
| P2 | High. Data collection services and data reporting services are significantly degraded and/or impacting significant aspects of business operations. | Escalation in accordance with provisions in “Escalation procedures” section below. | INSTAPAGE will provide a status update by telephone, e-mail, or via automated notification within the reporting interface of the Measurement Services as mutually agreed upon by the Parties, as warranted until (i) the problem is resolved, (ii) an acceptable workaround is found or (iii) the problem is determined to be outside of INSTAPAGE’s ability to control. | INSTAPAGE will provide a status update by eight (8) business hours within the initial occurrence of the P2 issue. |
| P1 | Primary | Key Tech Staffer/ First Available | help@Instapage.com | 2 hours |
| Secondary | Dedicated Account Manager | success@Instapage.com | 4 hours | |
| P2 | Primary | All Staff / First Available | help@Instapage.com | 8 hours |
| Secondary | Dedicated Account Manager | success@Instapage.com | 12 hours |
Instapage Application and landing page Servers status can be viewed in real-time at status.Instapage.com and Customer may subscribe to updates from there.
Try the world's most advanced landing page platform today.