Guidebook Enterprise MSA 2022
Last Updated Date: November 17, 2022
This Master Subscription Agreement (this “Agreement”) is between Guidebook, Inc. (“Guidebook”) and Customer (as defined below).
Welcome, and thank you for your interest in Guidebook! We appreciate you reviewing these terms so that we can provide you the Guidebook platform, which allows you to develop and manage mobile guides to events and places (“Guides”). These terms of service (“Terms”) are between you and Guidebook Inc. (“Guidebook,” “we,” “our,” or “us”), and apply to you when you use the Guidebook platform.
BY ACCEPTING THIS AGREEMENT (EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, BY USING (OR MAKING ANY PAYMENT FOR) THE SERVICES, OR BY OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT), YOU: (1) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND (2) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT OR USE THE SERVICES.
The parties agree as follows:
- A. "Applicable Law" means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, Professional Services, or either party’s performance under this Agreement.
- B. “Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Guidebook’s Confidential Information includes the Documentation, all User Data, and non-public information regarding features, functionality, and performance of the Guidebook Platform or Professional Services. Customer’s Confidential Information includes the Customer Data (except to the extent the Customer Data is intended for inclusion in a public-facing product or Guide).
- C. “Customer Data” means all data (including Guides) uploaded by Customer or Customer Users to the Guidebook Platform or made available to Guidebook by Customer in the course of the Services or Professional Services. “Customer Data” does not include Usage Data.
- D. “Customer User” means an employee or contractor of Customer whom Customer has authorized to use the Guidebook Platform.
- E. “Data Privacy Law” means all applicable laws and regulations relating to privacy, data protection, data security, communications secrecy, breach notification, or the processing of Personal Information.
- F. “Documentation” means Guidebook-provided user documentation relating to the Guidebook Platform (e.g., user manuals and online help files).
- G. “End User” means an individual who downloads and/or uses Customer’s Guides (e.g., an event attendee using Customer’s Guide).
- H. “End User Data” means any Personal Information or other data (other than Customer Data) related to an End User’s download and/or use of Customer’s Guides that is collected, inferred, created, stored, processed, transmitted, accessed, or used by Guidebook.
- I. “Guide” means a mobile guide to events, places, communities, data, or other information; in each case that is developed by Customer using the Guidebook Platform.
- J. “Guidebook Platform” means Guidebook’s software-as-a-service platform that enables Customer Users to create and edit Guides and publish them for use on mobile and other web-enabled devices.
- K. “Intellectual Property Rights” means all intellectual property and proprietary rights throughout the world (registered or unregistered), including patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights, together with all applications for any of the foregoing.
- L. “Order” means an ordering document or online order specifying the Services and/or Professional Services to be provided under this Agreement that is entered into between Customer and Guidebook, including any addenda and supplements thereto.
- M. “Order Term” means the term specified in the applicable Order.
- N. “Personal Information” has the meaning assigned to the term “personal information,” “personal data,” or equivalent terms under applicable Data Privacy Law, in each case limited to such information processed by a party in connection with this Agreement.
- O. “Professional Services” means any implementation, custom configuration, training, or consulting services relating to the Guidebook Platform or Guides, as specified in an Order or otherwise agreed by the parties, which may include assistance creating or deploying Guides, onsite support at an event or venue, the generation of Guide outlines, or customizations beyond the standard features available in the Guidebook Platform.
- P. “Service Limitations” means any limitations on Customer’s use of the Guidebook Platform specified in an Order, including number of Guides allowed in the applicable Tier.
- Q. “Services” means Guidebook’s provision of the Guidebook Platform and Support Services as specified in an Order. The “Services” do not include any Professional Services, which Customer may purchase from Guidebook for a separate fee where available.
- R. “Tier” means the customer tier in the applicable Order defining the number of the Guides that Customer may create using the Guidebook Platform.
- S. “Usage Data” means data relating to Customer’s or Customer Users’ use of the Guidebook Platform or Professional Services that is aggregated and/or deidentified.
- A. Orders. Each Order is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order, this Agreement will control unless the Order states that a specific provision of this Agreement will be superseded by a specific provision of the Order.
- B. Access. Subject to Customer’s payment of all Fees and compliance with this Agreement, Guidebook grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Order Term to use the Guidebook Platform by and through Customer Users (in accordance with any Service Limitations and Documentation) to create, edit, and publish up to the number of Guides permitted by Customer’s Tier. All Guides are non-transferable.
- C. Support Services. Subject to Customer’s payment of all Fees and compliance with this Agreement, Guidebook will use commercially reasonable efforts to provide technical support to Customer during normal business hours, with the exclusion of U.S. federal holidays (“Support Hours”), or as otherwise described in the applicable Order (the “Support Services”).
- D. Professional Services. Subject to Customer’s payment of all Fees and compliance with this Agreement, Guidebook will provide Professional Services to Customer as described in the applicable Order. Customer will: (1) cooperate with and assist Guidebook in the performance of Professional Services; (2) provide the resources and data specified in an Order or reasonably requested or required by Guidebook to perform the Professional Services; and (3) perform all obligations required by Customer under the terms of the Order. If Customer fails to comply with the previous sentence, Guidebook’s ability to provide Professional Services, meet any performance schedule in an applicable Order, and keep fees reasonably in line with any estimates given in the Order may be adversely affected. If Guidebook performs Professional Services on or with respect to any third-party software, Customer represents and warrants to Guidebook that Customer has all necessary rights to allow Guidebook to do so. If any delays in the Professional Services occur as a result of any incorrect information from Customer or failure of Customer to perform its obligations under this Agreement or any Order, Guidebook may extend any performance schedule under the applicable Order. Guidebook will have no liability for any costs or expenses resulting from such delays. This Agreement and all applicable Orders are not a work-for-hire agreement, and Guidebook retains ownership of all right, title, and interest in and to all Work Product. Subject to Customer’s payment of the Fees related to Professional Services and compliance with this Agreement, Guidebook grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable license to use the Work Product during the Term solely for Customer’s internal business purposes and in connection with its permitted use of the Guidebook Platform. “Work Product” means any deliverables that are created by Guidebook for Customer in the performance of Professional Services. “Work Product” does not include any derivatives or output of the Services.
- E. Subcontractors. Guidebook may use subcontractors (including for the processing of information) or other third parties to perform its obligations under this Agreement, but Guidebook will remain responsible for all such obligations.
3. Use Restrictions and Responsibilities.
- A. “Use Restrictions.” Except as expressly permitted in this Agreement, Customer will not, and will not permit or authorize third parties to: (1) rent, lease, or otherwise permit third parties to use the Guidebook Platform or Documentation; (2) use the Guidebook Platform or Documentation to provide services to third parties (e.g., as a service bureau); (3) use the Guidebook Platform in violation of the Service Limitations or this Agreement; (4) circumvent or disable any security or other technological features of the Guidebook Platform; (5) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Guidebook Platform (except to the extent Company has an affirmative right to do so under Applicable Law); (6) modify, translate, or create derivative works based on the Guidebook Platform, Professional Services, or Documentation; (7) remove any proprietary notices or labels from the Guidebook Platform or Documentation; (8) use the Guidebook Platform in a manner that violates or attempts to circumvent Applicable Law; (9) use the Guidebook Platform to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Guidebook Platform; or (10) use the Guidebook Platform to develop a competing product or service. Guidebook may (without liability) remove or decline to publish any Customer Data if Guidebook determines (in its sole discretion) that Customer is in breach of this Agreement.
- B. “Customer Users; Accounts.” Customer is responsible and liable for all actions and inactions by Customer Users or by any third party that Customer or a Customer User permits to access or use the Guidebook Platform, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials.
4. Intellectual Property and Data.
- A. Customer Data. Customer owns the Customer Data, including all Intellectual Property Rights in or associated with the Customer Data. No ownership rights in the Customer Data are transferred to Guidebook by this Agreement. Guidebook does not have any rights to the Customer Data except for the limited express rights granted in this Agreement. Customer hereby grants Guidebook a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable (to Guidebook’s third-party service providers) license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data, in whole or in part, in any media or distribution methods now known or later developed, solely as necessary for Guidebook to provide the Services and Professional Services to Customer and perform Guidebook’s related business functions.
- B. Guidebook IP. Guidebook and its licensors own the Guidebook Platform, Professional Services, Documentation, and Usage Data, including all Intellectual Property Rights in or associated with (and any derivatives of) the foregoing (the “Guidebook IP”). The Guidebook IP is protected by copyright law and other Applicable Law. No ownership rights in the Guidebook IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the Guidebook IP except for the limited express rights granted in this Agreement.
- C. Customer Marks. Customer hereby grants Guidebook a worldwide, non-exclusive, sublicensable (to Guidebook’s third-party service providers) license during the Term to copy, reproduce, use, modify (at Customer’s direction), resize, and publish Customer’s trademarks, service marks, and trade names (“Customer Marks”) solely as necessary to create and publish the Guides as contemplated under this Agreement. Guidebook will comply with any trademark usage policies that Customer may provide. All goodwill arising from Guidebook’s use of the Customer Marks will inure solely to Customer’s benefit.
- D. Third-Party Marketplaces. To the extent Customer’s Guides are to be published in the Apple App Store, Google Play Store, or other third-party application marketplace (“Third-Party Marketplace”), Customer will (at Guidebook’s request) provide Guidebook the necessary access to Customer’s developer account for such Third-Party Marketplace. Guidebook will use Customer’s developer account solely on Customer’s behalf and solely for the purpose of publishing Customer’s Guides in accordance with this Agreement. Guidebook is not responsible for any removal, modification, or deletion of Guides by any Third-Party Marketplace, and does not guarantee the continued availability of any ThirdParty Marketplace. If any Third-Party Marketplace does not allow Customer (or Guidebook on Customer’s behalf) to publish any Guides, Customer will not be entitled to any refund or other compensation.
- E. Feedback. If Customer gives Guidebook feedback, comments, or suggestions concerning the Guidebook Platform, Services, or Professional Services (collectively, “Feedback”), Customer hereby assigns to Guidebook all right, title, and interest in and to the Feedback, and Guidebook is free to use the Feedback without payment, attribution, or restriction.
- F. Usage Data. Guidebook may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Guidebook Platform and related systems and technologies (including information provided by third-party analytical tools). Guidebook may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, including to improve the Guidebook Platform, Services, or Professional Services.
5. Confidentiality. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 5, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information to the extent it is required to be disclosed by Applicable Law.
6. Fees and Payment.
A. Fees and Payment.
- (1) Customer will pay Guidebook all fees described in all Orders in accordance with the terms therein (the “Fees”). Guidebook may change the Fees or applicable charges or institute new charges and Fees at the end of any Order Term with reasonable prior notice to Customer (which may be sent by email). If Guidebook changes the Fees or charges with less than 30 days remaining in the thencurrent Order Term, Customer may opt out of automatic renewal of the Order Term by notifying Guidebook in writing before the effective date of renewal, notwithstanding Section 7.A (Term). If Customer believes that Guidebook has billed Customer incorrectly, Customer must contact Guidebook no later than 30 days after the date of the first invoice in which the error or problem appeared. All Fees are non-refundable, except as otherwise specified in this Agreement.
- (2) Guidebook may bill Customer through an invoice, in which case, unless otherwise specified in the applicable Order, full payment is due 30 days after the date of the applicable invoice (unless a different payment schedule is specified in the Order). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by Applicable Law, whichever is lower, plus all expenses of collection, and may result in immediate termination of access to the Guidebook Platform. Customer will pay all Fees in U.S. Dollars. Guidebook may suspend access to the Guidebook Platform if Customer fails to make any payment due within ten business days after Guidebook provides notice of the failure. Suspension of access to the Guidebook Platform by Guidebook under this Section 6.A(2) does not relieve Customer of its payment obligations under this Agreement. Guidebook will not be liable to Customer nor to any third party for any suspension of access to the Guidebook Platform pursuant to this Section 6.A(2).
- B. Fees for Additional Guides. If Guidebook determines (in its sole discretion) that Customer has published more Guides than allowed under the applicable Tier, Guidebook will notify Customer of such overuse. If Customer does not unpublish the excess Guides within 30 days after such notice, Customer will pay Guidebook for such overuse, at Guidebook’s then-current fees for excess Guides. Unused Guide usage does not roll over from one Order Term to the next. For example, if Customer’s Tier permits Customer to create three Guides during the Order Term and Customer only creates one Guide, Customer’s total number of allowed Guides under the same Tier in the next Order Term will continue to be limited to three (not three plus the two unused Guides from the previous Order Term).
- C. Taxes. Other than federal and state net income taxes imposed on Guidebook, Customer will bear all taxes, duties, and other governmental charges relating to the Services and Professional Services.
7. Term and Termination.
- A. Term. The term of this Agreement will commence on the effective date of the first Order between the parties and will continue until terminated in accordance with this Agreement (the “Term”). At the end of each Order Term, the Order will automatically renew for a term equivalent to its initial term, unless otherwise specified in the Order or if either party notifies the other in writing of its desire to terminate the applicable Order at least 30 days before the end of the then-current Order Term. If there are no active Orders, either party may terminate this Agreement upon 30 days’ prior written notice to the other party.
- B. Termination for Breach or Insolvency. Either party may terminate this Agreement or an Order, effective upon written notice to the other party, if the other party materially breaches this Agreement (or an Order) and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
- C. Effect of Termination. Termination of this Agreement will automatically terminate all active Orders, but termination of a single Order will not result in termination of this Agreement or any other Orders. Upon the termination of this Agreement or an Order all rights and licenses granted by Guidebook to Customer under this Agreement or the applicable Order will terminate, and Guidebook may deactivate the Guides. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
- D. Post-Termination Obligations. Upon any termination of this Agreement or any Order, at Customer’s request, Guidebook will make all Customer Data then held on Customer’s behalf by Guidebook pursuant to this Agreement or the applicable Order available to Customer for electronic retrieval on a nonproduction basis for a period of 30 days. After such period, Guidebook may, but is not obligated to, delete any such Customer Data. If Customer terminates this Agreement for material breach, Customer will pay a pro rata amount of the Fees for any terminated Orders up to and including the last day on which the Services or Professional Services are provided, and Guidebook will pay Customer a pro rata refund of Fees for services not provided. If this Agreement is terminated for any other reason, Guidebook will not refund Customer any Fees paid in advance of such termination, and within ten days after such termination, Customer will pay Guidebook all remaining Fees owed under any terminated Orders so that Guidebook is paid the full amount agreed to at the commencement of the applicable Order Term. The following sections of this Agreement will survive any termination of this Agreement: Sections 1 (Definitions), 4 (Intellectual Property and Data), 5 (Confidentiality), 6 (Fees and Payment), 7.C (Effect of Termination), 7.D (PostTermination Obligations), 8.D (Combinations), 8.E (Disclaimer), 9 (Indemnification), 10 (Limitations of Liability), 11(Arbitration), and 14 (Miscellaneous).
8. Warranties and Disclaimers.
- A. Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the party; and (3) the execution and delivery of this Agreement by the party do not violate Applicable Law or the terms of any other agreement to which it is a party or by which it is otherwise bound.
- B. Guidebook Warranties. Guidebook represents and warrants to Customer that Guidebook will perform the Services and Professional Services in a good and workmanlike manner.
- C. Customer Warranties. Customer represents and warrants to Guidebook that Customer has the necessary rights to authorize Guidebook to use the Customer Data and Customer Marks in accordance with this Agreement, and such use by Guidebook of Customer Data and Customer Marks does not and will not infringe or violate any third-party right, including any Intellectual Property Right or privacy right.
- D. Combinations. Guidebook will have no obligation for any infringement of Intellectual Property Rights relating to Customer’s use of the Guidebook Platform or Professional Services to the extent arising out of: (1) use of Guidebook Platform or Professional Services in combination with other products or services not recommended or provided by Guidebook; (2) designs, requirements, or specifications required by or provided by Customer; (3) use of the Guidebook Platform or Professional Services in breach of this Agreement or outside the scope of the rights granted to Customer; (4) Customer’s failure to use Guidebook Platform or Professional Services in accordance with the Documentation; or (5) any modification of the Guidebook Platform or Professional Services not made or authorized in writing by Guidebook.
- E. Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 8 (WARRANTIES AND DISCLAIMERS), GUIDEBOOK MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE GUIDEBOOK PLATFORM, DOCUMENTATION, SERVICES, PROFESSIONAL SERVICES, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRDPARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE GUIDEBOOK PLATFORM, DOCUMENTATION, SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” GUIDEBOOK DOES NOT WARRANT THAT THE GUIDEBOOK PLATFORM, DOCUMENTATION, SERVICES, OR PROFESSIONAL SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE GUIDEBOOK PLATFORM WILL BE UNINTERRUPTED. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to Customer
- A. Defense. At Guidebook’s option and request, Customer will defend Guidebook and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “Guidebook Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, or inquiry arising out of or based on Customer’s use, storage, sale, transfer, distribution, or processing of End User Data or Customer’s breach of Sections 3.A (Use Restrictions), 4.G (End User Data), and/or 8 (Warranties and Disclaimers) (a “Claim”). If Guidebook requests Customer to defend it from any Claim, Guidebook will: (1) give Customer prompt written notice of the Claim; (2) grant Customer full and complete control over the defense and settlement of the Claim; (3) provide assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (4) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of any Guidebook Indemnified Party without Guidebook’s prior written consent. Guidebook may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
- B. Indemnification. Customer will indemnify the Guidebook Indemnified Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against the Guidebook Indemnified Parties in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by the Guidebook Indemnified Parties in connection with the defense of a Claim; and (3) all amounts that Customer agrees to pay to any third party to settle any Claim.
- C. IP Infringement. If Customer’s use of the Guidebook Platform in accordance with this Agreement is held to infringe (or if Guidebook reasonably believes will be held to infringe) any third-party Intellectual Property Rights, Guidebook may, at its option and expense: (1) modify the Guidebook Platform to make it non-infringing; or (2) obtain a license that permits Customer to continue using the Guidebook Platform. If Guidebook does not believe either option is reasonably practicable, Guidebook may terminate this Agreement upon notice to Customer. This Section 9.C states Guidebook’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property Rights arising from Customer’s use of the Guidebook Platform.
10. Limitations of Liability.
- A. EXCLUSION OF DAMAGES. NEITHER GUIDEBOOK NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES WILL BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF GUIDEBOOK IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
- B. DAMAGES CAP. GUIDEBOOK’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO GUIDEBOOK DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
- C. Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 10 (Limitations of Liability) will apply solely to the extent not prohibited under Applicable Law.
11. Arbitration. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in San Francisco County, California. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by Applicable Law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
12. Publicity. Guidebook may publicly list Customer as a customer of Guidebook and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communications with existing or potential Guidebook customers, resellers, or investors. Upon Guidebook’s request, Customer will participate in two reference phone calls per calendar year.
13. Compliance with Applicable Law. Customer will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement. As defined in FAR section 2.101, the Guidebook Platform, Services, Professional Services, and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
- A. Governing Law. This Agreement is governed by California law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 11 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts of San Francisco County, California. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
- B. Injunctive Relief. If either party breaches Sections 3.A (Use Restrictions) or 5 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available to it, seek injunctive or other equitable relief in response to any such breach.
- C. Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
- D. Assignment. Customer may not assign this Agreement or Customer’s rights (or delegate its performance obligations) without Guidebook’s prior written consent, and any attempt to do so is void. Guidebook may assign this Agreement and/or Guidebook’s rights (and/or delegate its performance) without Customer’s consent. This Agreement binds and benefits the parties’ permitted successors and assigns.
- E. Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
- F. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
- G. Entire Agreement. This Agreement (including any Orders) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). Any additional provisions (including any “click wrap” terms, terms referenced via URL, or otherwise) in any purchase order or other document provided by Customer will be void and have no binding effect on Guidebook, except as described in Section 2.A(Orders). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
- H. Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
- I. Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
- J. No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement
- K. Notices. All notices under this Agreement must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. To be effective: (a) all notices to Customer must be sent to the address listed on the Order unless otherwise specified by Customer; and (b) all notices to Guidebook will be sent to the following address unless otherwise specified by Guidebook:
584 Castro St #2128
San Francisco, CA 94114
- L. Force Majeure. Except for Customer’s payment obligations, neither party will be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond such party’s reasonable control, so long as such party uses reasonable efforts to avoid or remove those causes of delay or non-performance.
- M. Interpretation. If Guidebook provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only and does not define or explain any provision. Any use of the term “including” or any variations should be construed as if followed by the phrase “without limitation.”
- N. Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.
[End of Master Subscription Agreement]