Master Service Agreement
This Master Service Agreement sets out the terms on which Dash Hudson Inc. (“Dash Hudson”/ “we”/ “us”) will make its services available to the person or entity identified in the applicable Order Form referencing this Agreement to use the Services (as defined below) (the “Customer”). Customer, by executing an Order Form, hereby agrees to the following terms and conditions which contain important limitations on representations, warranties, remedies, and liabilities.
1. Definitions, Purpose, and Scope
1.1. The following terms shall have the following meanings:
“Agreement” means the Order Form and these terms and conditions (as updated from time to time) together with any Schedules attached hereto or referenced on the Order Form;
“Order Form” means an order form executed by the parties under the terms of this Agreement setting out certain commercial terms such as the term, fees and features of the Service;
“Interactive Features” means features of the Platform that may allow for specific Customer-branded landing sites or direct interactions with individuals through Third Party Platforms or the Platform (including without limitation the “LikeShop” feature), as more fully described on the applicable Order Form;
“Service” means Dash Hudson’s online, web-based platform having the features and set out in the applicable Order Form;
“Term” has the meaning given in Section 8.1;
“Third Party Platform” means a third party social platform such as Facebook, Instagram, Pinterest, Twitter, TikTok etc; and
“User” means an employee, contractor or agent of Customer who is authorized by Customer to use the Service, and who has been supplied a user account and password by Customer (or by Dash Hudson at Customer’s request) for the Service.
1.2. Incorporation of Order Forms. Customer may purchase and order additional services or otherwise expand the scope of services by executing one or more Order Forms with Dash Hudson which may include additional Dash Hudson or third-party functionality (such functionality being deemed not to be part of the Service) which additional functionality may be purchased by Customer for additional fees in accordance with any additional terms and conditions specified by Dash Hudson.
1.3. Order of Precedence. To the extent any terms and conditions of this Agreement conflict with the terms of an Order Form or any other document, the documents shall control in the following order: (i) Order Forms with the latest date(s); (ii) this Agreement; and (iii) any other documents expressly incorporated herein by reference.
2. Provision of Service.
2.1. Provision of Service. Subject to the terms and conditions of this Agreement, Dash Hudson shall make the Service available to Customer during the Term for use in Customer’s business on a non-exclusive, non-transferable licensed basis. Dash Hudson will also provide basic support to Customer in respect to Customer’s permitted use of the Service and any professional services agreed on the Order Form. Customer will have access to those features of the Service described on the Order Form, which may include Interactive Features. Interactive Features may include functionality allowing Customer to make certain content available and/or to collect personal information specified by Customer, either directly or through the Platform. The Interactive Features shall enable Customer to make their own privacy policies available to users, and Customer shall be solely responsible for ensuring that its use of the Interactive Feature is in compliance with this Agreement and all applicable laws, including without limitation all requirements to obtain all necessary permissions and consents to enable the collection, processing and use of personal information that may be collected through the Service (including through the Interactive Features).
2.2. Service Limitations. Customer acknowledges and agrees that the Service may be unavailable at times during the Term because of: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Dash Hudson's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Dash Hudson’s possession or reasonable control, and denial of service attacks. Customer acknowledges that the Service may also be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Dash Hudson may periodically add or update the information and materials on the Dash Hudson platform without notice.
2.3. Customer Responsibilities. Customer agrees to use the Service solely for lawful purposes only. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all content it makes available or otherwise publishes through the Service; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify Dash Hudson promptly of any such unauthorized access or use; (iii) be responsible for all activities that occur in User accounts and for Users’ compliance with the terms of this Agreement; and (iv) comply with all applicable local, provincial, state, federal and foreign laws in using the Service. Customer further agrees to comply, and to ensure that each of its Users complies, at all times with Dash Hudson’s Acceptable Use Policy (https://dashhudson.com/aup). Dash Hudson may terminate this Agreement upon written notice of a material breach of the Acceptable Use Policy.
2.4. Restrictions. Customer shall not (and shall not permit any third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Service available to any third party; (b) interfere with or disrupt the integrity or performance of the Service or the data contained therein, including using any type of spider, virus, worm, Trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Service (including Dash Hudson’s proprietary software and apps which may be available for download on the Website); (iii) attempt to gain unauthorized access to the Service or its related systems or networks; or (c) disclose any benchmarking or results of the Service to third parties without Dash Hudson’s prior written consent; (d) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service; (e) circumvent any user limits or other timing or use restrictions that are built into the Service; (f) remove any proprietary notices, labels, or marks from the Service; (g) frame or mirror any content forming part of the Service; or (h) access the Service in order to: (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service; (i) Customer may not perform any security penetration testing, stress or load testing or otherwise intentionally undertake actions which are reasonably likely to potentially interfere with the operation of the Service without the written consent of Dash Hudson in advance; or (j) use the Service to send any unsolicited commercial communication not permitted by applicable law; or (k) endanger any part of any system or Internet connection of Dash Hudson or any third party through use of the Service; or use the Service to manage any illegal operations.
2.5. Data Processing. Customer acknowledges that the content and data that Dash Hudson processes on its platform is accessed in accordance with the applicable Third-Party Platform’s API terms of service, and both parties must comply with such terms.
2.8. Service Changes by Dash Hudson. Dash Hudson reserves the right to alter or discontinue the Service or the Dash Hudson platform without any liability to Customer except that where Dash Hudson discontinues the Service or introduces changes which materially degrade or reduce functionality agreed in an Order Form, Customer will have the right to terminate this Agreement as its sole remedy and Dash Hudson will provide a pro-rata refund for any prepaid fees for the remaining unexpired term of Customer’s subscription. In cases where Dash Hudson deems it necessary to suspend the Service or access to the Dash Hudson platform, Dash Hudson will endeavor to give notice of the same to Customer.
3. Fees and Payment.
3.1. Payment Terms. In consideration for the receipt of the Service and the rights and other consideration granted hereunder, Customer shall pay Dash Hudson the fees specified on the Order Form in the amounts and at the times indicated therein. Unless otherwise stated, all payments shall be made to Dash Hudson within thirty (30) calendar days after the date of the invoice. Dash Hudson reserves the right to increase service fees from time to time on provision of written notice to Customer. Fee increases will take effect from the next billing period.
3.2. Invoicing and Payment of Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.
3.3. Suspension of Service. If Customer account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Dash Hudson reserves the right to suspend the Service provided to Customer, until such amounts are paid in full or terminate the Service and this Agreement.
3.4. Service Fee Renewals. Subject to Section 8 below, all subscriptions will automatically renew, and the relevant fees will be processed and charged to Customer in full unless Customer notifies Dash Hudson at least thirty (30) days in advance of the anniversary of a renewal period that Customer wish to discontinue the Service. Recurring payments for periodic subscriptions are processed on the account anniversary date for any subscriptions.
4. Proprietary Rights.
4.1. Title; Reservation of Rights. Dash Hudson owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights, together “Intellectual Property Rights”), in and to Dash Hudson’s trademarks and branding, materials and the Dash Hudson platform including any and all modifications, derivatives, improvements and enhancements to the same. Customer acknowledges and agrees that it has no right, license or authorization with respect to any of the technology underlying the Service (including any Intellectual Property Rights therein) except as expressly set forth in this Agreement. All other rights in and to the Service and Dash Hudson platform are expressly reserved by Dash Hudson and its licensors.
4.2. Customer Data. As between Customer and Dash Hudson, Customer will own and retain ownership of content provided, stored and processed through the Service by or on behalf of Customer (“Customer Data”). Customer hereby grant Dash Hudson a worldwide, royalty-free, and non-exclusive license during the Term to access and use Customer Data in accordance with the term of this Agreement and to provide the Service, including storing, hosting and management of such content. Customer understand that Dash Hudson, in performing the required technical steps to provide the Service, may (a) transmit or distribute Customer Data over various public or private networks and in various media; and (b) make such changes to Customer Data as are necessary to conform and adapt that Customer Data to the technical requirements of connecting networks, devices, services or media. Customer confirms and warrants to Dash Hudson that Customer has all the rights, power and authority necessary to grant the above license and that use of the Customer Data in the manner contemplated in this Agreement will not breach the rights of any third party.
4.3. Protection of Customer Data. Dash Hudson will maintain appropriate administrative, physical, and technical safeguards in accordance with good industry standards that are designed to protect the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Except with respect to a free trial, the terms of the Data Processing Addendum (“DPA”) available at www.dashhudson.com/dpa are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Dash Hudson will make Customer Data available to Customer for export or download as provided in the Documentation. After the end of such 30-day period, Dash Hudson will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited
4.4. Content Responsibilities. All third party content (including without limitation photographs, images, materials, descriptions, videos, audio files, text files, information, code, or other content, together “Content”) that is accessed by Customer on a Third Party Platform through use of the Services shall be retained by the applicable third party rights holder and subject to the rights of such third party and any applicable third party Platform terms and conditions governing the use or access to such Content. Customer is responsible for any and all content provided hereunder and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Customer Data to be made available to Dash Hudson for Dash Hudson to transmit, host and store. For greater certainty, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify Dash Hudson promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service. Client further acknowledges that: (a) Dash Hudson is in no way responsible for such Content (whether in respect of the rights to such Content, its accuracy, appropriateness or in any other manner whatsoever); and (b) Customer shall be solely liable for the verifying any right to use by Customer of any Content, including without limitation, any copyrights, trademarks, right of privacy or publicity or other rights and compliance with any applicable third party terms and conditions.
4.5. Dash Hudson Data. Customer acknowledges that Dash Hudson will retain all right, title and interest to transactional, usage and performance data related to use of the Service which Dash Hudson may collect and process in such a way as to not allow identification of Customer or any User. This data may be used by Dash Hudson for Dash Hudson’s business purposes (including platform improvements, industry benchmarking and software optimization) provided that such use does not reveal the identity of Customer, any Customer employee, agent, contractor, supplier or service provider.
4.6. Suggestions. Dash Hudson shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Service.
4.7. Copyright and Trademark Information. Except for Customer Data, the Dash Hudson platform, and the information and materials that it contains, are the property of Dash Hudson and its licensors, and are protected from unauthorized copying and dissemination by copyright law, trademark law, international conventions and other intellectual property laws. All Dash Hudson product names and logos are trademarks or registered trademarks. Nothing contained on the Dash Hudson platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Dash Hudson platform or any materials displayed on the Dash Hudson platform, through the use of framing or otherwise, except: (a) as expressly permitted by these terms and conditions; or (b) with the prior written permission of Dash Hudson. Customer shall not attempt to override or circumvent any of the usage rules or restrictions on the Platform.
4.8 Optional Services: External Content Sharing Services. If agreed by the parties, Dash Hudson may provide Customer Data to an external content sharing service owned or operated by third parties on behalf of Customer and Dash Hudson shall have the right to sub-license such Customer Data to such external content sharing service on a non-exclusive, worldwide, sub-licensable basis to use only those categories of Customer Data as shall be specified in the consent for use connection with the applicable provider’s products or services, or as otherwise specified in the consent. Such written consent can be provided by email, through the Service or the Service’s communication tools, or by other written means.
5. Confidentiality.
For the purpose of this Agreement, “Confidential Information” means non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or to which the other party may have access, which (i) a reasonable person would consider confidential, or (ii) is marked “confidential” or“proprietary” or some similar designation by the disclosing party. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of these Terms by the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations under these Terms, and shall take actions reasonably necessary and appropriate to prevent the unauthorized disclosure of the Confidential Information, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations under these Terms.
6. Warranties and Disclaimers.
6.1. General Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
6.2. Service Warranties. Dash Hudson represents and warrants that during the Term it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. For greater certainty, Dash Hudson does not warrant that Customer’s use of the Service will be error-free or uninterrupted. In the event of interruption, Dash Hudson will provide the Customer with a pro-rata credit for each complete day of interruption, which will be applied toward future billings.
6.3. Customer Warranties. By accessing or using the Service, you represent and warrant that your activities are lawful in every jurisdiction where you access or use the Services. Our Service is not intended to hold any Sensitive Information. You represent and warrant that you will not use our Service to transmit, upload, collect, manage, or otherwise process any Sensitive Information. WE WILL NOT BE LIABLE FOR ANY DAMAGES THAT MAY RESULT FROM YOUR USE OF OUR PRODUCTS IN TRANSMITTING, COLLECTING, MANAGING, OR PROCESSING ANY SENSITIVE INFORMATION. “Sensitive Information” means any credit card or debit card information, personal financial account information, personal health information, social security numbers, passport numbers, driver’s license numbers, employment records, physical or mental health condition or information, any information that would classify as “Special Categories of Information” under EU data protection laws, or any other information that would be subject to Health Insurance Portability and Accountability Act (HIPAA), the Payment Card Industry Data Security Standards (PCI DSS), or other laws, regulations, or industry standards designed to protect similar information.
6.4. Disclaimers. The Service is provided by Dash Hudson to Customer on an ‘as is’ basis, and except as expressly provided in this Agreement there are no warranties, representations or conditions, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade or otherwise, regarding the Service or in connection with this Agreement by Dash Hudson (including its affiliates, licensors, suppliers and subcontractors). Dash Hudson (including its affiliates, licensors, suppliers and subcontractors) disclaims any implied warranties or conditions of merchantable quality, satisfactory quality, merchantability, durability, fitness for a particular purpose and/or non-infringement. Dash Hudson (including its affiliates, licensors, suppliers and subcontractors) does not represent or warrant that the Service will meet any or all of Customer’s particular requirements, that the Service will operate error-free or uninterrupted or that all errors or defects in the Service can be found or corrected. Furthermore, theService is not a back-up service and accordingly Dash Hudson will not be responsible for any lost data due to server crashes or other events outside Dash Hudson’s reasonable control.
6.5. Security. Information sent or received over the Internet is generally insecure and Dash Hudson cannot and does not make any representation or warranty concerning security of any communication to or from the Dash Hudson platform or any representation or warranty regarding the interception by third parties of personal or other information.
7. Liability of Terms.
7.1. Mutual Indemnification. Each party (the “Indemnifying Party”) shall defend the other party and its directors, officers and employees (collectively the “Indemnified Parties”) from and against any actions, suits, or proceedings brought against theIndemnified Parties by a third party (each, a “Claim”), and in relation to such Claims, pay: (a) all defense costs (including reasonable attorneys’ fees and expenses), (b) any settlement amounts negotiated by the Indemnifying Party, (c) all damages awarded by a court after all appeals have concluded, and (d) any other losses, fines, penalties, costs and other amount directly incurred by any such Indemnified Party in connection with the Claim, each to the extent such Claims are based on or arise from: (i) violation of any law or regulation by the Indemnifying Party (including, without limitation, any privacy or personal information protection law or regulation); (ii) real or tangible property damage or bodily injury or death caused by the negligent or willful acts or omissions of the Indemnifying Party, its employees, subcontractors and agents in connection with this Agreement; (iii) where Dash Hudson is the Indemnifying Party, any allegation that the Service as provided by Dash Hudson infringes any third-party intellectual property right;, and (iv) where Customer is the Indemnifying Party, any allegation that the Customer Data or Customer's misuse of Content or use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property of any third party.
7.2. The foregoing obligations are subject to the conditions that the Indemnified Parties: (a) promptly give written notice of each Claim to the Indemnifying Party; (b) give the Indemnifying Party sole control of the defense and settlement of each Claim (provided that the Indemnifying Party may not settle or defend any Claim unless it unconditionally releases the Indemnified Parties of all liability); and (c) provide to the Indemnifying Party, at the Indemnifying Party's cost, all reasonable assistance and co-operation in respect to each Claim.
7.3. Notwithstanding the generality of the foregoing, Dash Hudson will not be obligated to indemnify Customer with respect to a Claim covered by Section 8.1 to the extent that the Claim arises out of: (A) any use of the in a manner that materially violates this Agreement; (B) Customer’s combination of the Service or any licensed materials with any third party software or equipment, if the Claim would have been avoided without such combination; or (C) any Claim that arises in connection with Customer’s content or its use of Content.
7.4. Limitation of Liability. In no event shall either party have any liability to the other party for any indirect, special, incidental, punitive, or consequential damages (including, without limitation, damage for loss of business, loss of revenues, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss) however caused and, whether in contract, tort (including negligence) or under any other theory of liability, whether or not a party has been advised of the possibility of such damages. In no event shall Dash Hudson’s aggregate liability arising out of or related to this Agreement, whether in contract, tort (including negligence) or under any other theory of liability, exceed actual damages up to a maximum of the fees paid to Dash Hudson by Customer under the applicable Order Form during the twelve (12) month period preceding a claim.
7.5. Certain Damages Not Excluded. Notwithstanding the foregoing provisions of this section 7, no limitation of either party’s liability set forth in this Agreement shall apply to (a) damages arising from a party’s breach of its confidentiality obligations, or (b) damages arising from infringement and/or misappropriation of a party’s intellectual property rights; or (c) fraud; (d) indemnification obligations; or (e) any liability which cannot be excluded or limited by applicable law.
8. Term and Termination.
8.1. Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue for an initial term of twelve (12) months unless otherwise indicated on the Order Form (the “Initial Term”). Customer will have the option to terminate this Agreement for convenience at any time during the first thirty (30) days of the Initial Term of Customer’s first Order Form with Dash Hudson. Unless terminated sooner in accordance with Section 8.2 or this 8.1, on expiry of the Initial Term, this Agreement will automatically renew the term specified on the most recently executed Order Form (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term hereof. Each Renewal Term and the Initial Term collectively constitute the “Term”.
8.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) 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.
8.3. Obligations on Termination or Expiration. Notwithstanding any termination or expiration of this Agreement, Customer shall settle any payment obligations pursuant to Section 3.1. Each party will return or destroy at the election of the disclosing party, the Confidential Information of such disclosing party.
8.4. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4-7, 8.3, 8.4 and 9.
9. General Provisions.
9.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.2. Waiver; Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9.3. Force Majeure. Except for obligations to pay any fees under this Agreement, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than thirty (30) calendar days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.
9.4. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.5. Governing Law. This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of law principles. The courts located in Dover, Delaware, USA, shall have exclusive jurisdiction to resolve any dispute a rising out of or relating to this Agreement. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
9.6. Complete Understanding. The Agreement and any external documents referenced herein (including delivery timetables and deliverable requirements if applicable), constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, proposal or representation (whether written or oral) concerning its subject matter.
