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Master Services Agreement - Social Web

THIS MASTER SERVICES AGREEMENT (“MSA”) SETS FORTH THE STANDARD TERMS APPLICABLE TO ALL SERVICES PROVIDED BY LITHIUM TECHNOLOGIES, INC. (“LITHIUM”). YOU SHOULD CAREFULLY READ THE TERMS OF THE MSA BEFORE SIGNING A SERVICE ORDER. BY SIGNING A SERVICE ORDER, YOU (“CUSTOMER”) CONFIRM THAT YOU HAVE READ AND ACCEPT THIS MSA. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS YOU MAY REFERENCE OR PROVIDE, LITHIUM’S OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH YOU WITH RESPECT TO LITHIUM APPLICATIONS AND SERVICES IS EXPRESSLY LIMITED TO THIS MSA AND CONDITIONED ON YOUR ASSENT HERETO.

1 Definitions

1.1 Agreement
This MSA and any amendment hereto.

1.2 Authorized User
The individual designated by Customer to use the Services and for whom a subscription to the service has been ordered and who have been supplied user identification and passwords by Customer (or Lithium at Customer’s request). Authorized Users may include but are not limited to Customer’s employees, consultants, contractors and agents.

1.3 Designated Use
Access to and use of the Services (as defined below) for social interaction management for Authorized Users.

1.4 Documentation
The manuals and any other written materials in electronic form, available online to Customer under this MSA.

1.5 Service Order
A Service Order for placing orders for the Services and setting forth the number of Users and Fees. A sample Service Order is attached as an addendum to this MSA.

1.6 Prime Coverage Period
That period of time between 8:00 AM and 7:00 PM, Central Time, Monday through Friday, excluding any United States Federal holidays.

1.7 Services
The online Web-based software application and hosted services provided by Lithium, including associated: (a) the software and Documentation; and (b) all improvements, corrections, modifications, alterations, revisions, extensions, upgrades, national language versions and/or enhancements to the software and/or Documentation made during the term of this MSA. Services may also include the Set-Up Services, Support, or all of the foregoing as the context may dictate.

1.8 Set-Up Services
The set-up services provided to Customer with respect to Customer or its End User(s) as set forth in an Service Order.

1.9 Customer Data
The information that is: (a) provided to Lithium to enable Lithium to perform the Services; (b) disclosed to Lithium through use of the Services; or (c) results from Customer’s or End User’s use of the Services.

1.10 Customer Materials
Any equipment, data, software or other tangible or intangible technology provided by Customer as required to facilitate Lithium’s performance of Services, as further described in an Service Order.

1.11 Support
The customer support service packages offered by Lithium from time to time to facilitate an Authorized User’s use of the service.

1.12 Severity 1
An event relating to complete production service outage or severe performance degradation.

2 SERVICES PURCHASED FOR A FEE (NON-EVALUATION SERVICES)

2.1 Provisioning
Lithium shall make the Services available to Customer pursuant to this MSA and the relevant Service Order during a subscription term. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Lithium regarding future functionality or features.

2.2 Authorized User Subscriptions
Unless otherwise specified in the applicable Service Order, (i) Services are purchased as Authorized User subscriptions and may be accessed by no more than the specified number of Authorized Users, and (ii) additional Authorized User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder. Authorized User subscriptions are for designated Authorized Users only and cannot be shared or used by more than one Authorized User but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Services.

2.3 Data Protection
Lithium shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data. Lithium shall not (a) modify Customer Data without Customer’s consent, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.

2.4 Backups
Lithium will conduct daily incremental backups of all Customer Data, including configurations and data from social media sites.

2.5 Data Retention
Lithium shall maintain a minimum of 3 months of Customer Data as well as any statistical data around the usage of the Application. The Customer can get a longer data retention window if set forth in an Service Order.

2.6 Customer Responsibilities
Customer shall (i) be responsible for Authorized Users’ compliance with this MSA, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Lithium promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with any user guide or instructions provided by Lithium and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Authorized Users, (b) sell, resell, rent or lease the Authorized Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Authorized Services to store or transmit viruses, worms, time bombs, Trojan horse or other harmful or malicious code, files, scripts, agents or programs, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

2.7 Other Services
Customer may request that Lithium perform customization, implementation, consulting or other services by submitting a written request setting forth the requested services to be completed, and, if applicable, the requested date of completion (each, a “Professional Service Order”). All Professional Services Orders are subject to Lithium written acceptance and will be provided at Lithium then-current rates in effect when such services are performed. Any services performed pursuant to a Professional Services Order shall be deemed “Services” for all purposes of this MSA.

3 Customer Obligations Relating to the Services

3.1 Cooperation
As a condition of Lithium obligations hereunder, Customer shall: (a) provide Lithium with full, good faith cooperation and access to such information as may be required by Lithium in order to render the Services; (b) provide such personnel assistance as may be reasonably requested by Lithium from time to time; and (c) timely and fully carry out all other Customer responsibilities set forth herein. The parties acknowledge and agree that in no event shall Lithium be liable to Customer for any breach of this MSA or delay or cessation of Services related to or arising from the Customer Materials and/or related telecommunications equipment. Customer acknowledges and agrees that Lithium’s performance of Services hereunder is contingent and dependent upon Customer’s timely and continuous provision of the Customer Materials in accordance with their specifications.

3.2 Compliance
Customer shall comply with all applicable local, state, national and international laws (each a “Law”) in conjunction with its use of the Services. Customer represents and warrants that the Customer Materials and the provision thereof to Lithium under this MSA shall not violate any third party’s rights or any Law. Customer shall also comply with any terms of service when using or posting to third party social media networks, including but not limited to, Twitter and Facebook.

3.3 Use of Third Party Data
Customer shall use any third party data required by Lithium to perform the Services only for the purpose of this MSA, and shall not copy, extract, reproduce or disclose such data in any way not expressly authorized in writing by Lithium.

3.4 Quality
If Customer provides implementation, customization, consulting or other professional services relating to the Service, Customer shall provide such services in a timely and professional manned and in accordance with commercially reasonable industry standards.

4 Maintenance and Support

With regard to maintenance and support, Lithium shall: (i) provide basic support at no additional charge during the Prime Coverage Period defined in Section 1.6 above , and/or upgraded support if purchased separately and set forth in an Service Order, (ii) use commercially reasonable efforts to make the Services available during the Prime Coverage Period, except for: (a) planned downtime (of which Lithium shall give at least 3 days’ notice via the Services), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services only in accordance with applicable laws and government regulations.

Planned downtime should be generally limited to 30 minutes on weekdays and 2 hours on weekends at minimal traffic hours. Lithium may schedule downtime at any time of the day with shorter or no notice if Lithium reasonably determines that a failure to act immediately would lead to significant harm to either Lithium or Customer.

During Prime Coverage Periods, product support will be available via communicating with Lithium support through the current written guidelines. All non-critical support requests shall be responded to within one (1) business day of the receipt of the support request. During Prime Coverage Periods, for Severity 1 support requests, within two (2) hours of receipt of notice of a Services Disruption, or otherwise learning of the existence of a Services Disruption, Lithium will respond to Customer. To the extent that the cause of the Services Disruption is within the predominant control of Lithium, Lithium will make reasonable efforts to remedy the Services Disruption as soon as possible after it determines the source of the Services Disruption. If the cause of the Services Disruption is not with the control of Lithium, Lithium will notify Customer and will use commercially reasonable efforts to notify the party(ies) responsible for the source and cooperate with the responsible party to resolve the problem as soon as possible.

Lithium warrants that the Uptime Percentage in any calendar month shall not be less than ninety-nine and seven-tenths percent (99.7%). This uptime does not include scheduled maintenance.

5 Charges, Payment, and Taxes

5.1 Fees for Services
Customer will pay all fees set forth in a Service Order. Except as otherwise specified on an Service Order, (a) payment obligations are not cancelable and fees are nonrefundable and (b) the number of Authorized User subscriptions may not be decreased during the Subscription Duration. Authorized User subscription fees are based on annual periods that begin on the Subscription Start Date and each annual anniversary thereto. Fees for Authorized User subscriptions added in the middle of the month will be charged for that full monthly period and the monthly periods remaining in the subscription term.

5.2 Invoicing and Payment
Lithium shall invoice Customer annually in advance and all charges shall be due and payable by Customer within thirty (30) days from the date of invoice. All overdue amounts shall be subject to a late fee of one and one-half percent (1.5%) of the unpaid balance per month. Lithium reserves the right to immediately discontinue the provision of Services if payment is not received within ten (10) days of receipt of written notice from Lithium of failure to pay. Lithium may suspend the Service if Customer’s account is thirty (30) or more days overdue.

5.3 Taxes
All charges and fees herein do not include taxes or other governmental duties. If Lithium is required to pay or collect any federal, state, local, value added or any other similar taxes or duties based on the Services (other than taxes based on Lithium income), then such taxes and/or duties shall be paid by Customer on invoice by Lithium.

5.4 Record keeping
Customer shall maintain adequate books and records in connection with its activities hereunder. Such records shall include invoicing, payment and other financial records associated with each transaction. Lithium may audit the relevant books and records of Customer to ensure compliance with the terms of this MSA upon reasonable notice to Customer. Any such audit shall be conducted during regular business hours at Customer’s offices and shall not unreasonably interfere with Customer’s business activities. Audits shall be performed no more than twice during any twelve (12) month period.

6 Term and termination

6.1 Term and Termination of MSA
This MSA may be terminated for convenience by either party upon 90 days’ prior written notice to the other, except that it shall remain in effect past such termination for the remaining term of any Service Order already in effect at the time of the notice.

6.2 Term of a Service Order
The initial term of a Service Order shall start on its Subscription Start Date, as indicated in such Service Order, and ends on the last day of its Subscription Duration. A Service Order shall automatically renew for subsequent terms equal to the Subscription Duration unless either party notifies the other in writing of its intent not to renew at least 90 days prior to the expiration of the then current term.

6.3 Termination for Cause
Either party may terminate this MSA for cause, if the other party is in material breach of this MSA and has not cured the breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period for breaches other than nonpayment of fees shall not be unreasonably withheld, so long as the breaching party has commenced cure during the thirty day notice period and pursues cure of the breach in good faith. Upon termination for cause by Customer, Lithium will refund any prepaid fees covering the remainder of the subscription term after the effective date of termination. Upon termination for cause by Lithium, Customer shall pay any unpaid fees covering the remainder of the term of all Service Orders after the effective date of termination.

6.4 Effect of Termination
Upon termination of this MSA, Lithium’s obligation to provide any Services to Customer shall immediately cease and Customer’s rights to resell and market the Service shall cease. The parties’ rights and obligations under Sections 5, 7, 8, 9, 10 and 11 shall survive any termination of this MSA. Termination shall not relieve Customer of its obligation to pay all charges that accrued hereunder prior to such termination. Upon termination of this MSA, each party shall return or destroy all property materials and other items (and all copies thereof) belonging to the other party.

6.5 No Liability for Termination
Neither party will be liable to the other for any proper termination or expiration of this MSA in accordance with its terms.

7 Indemnity, Warranty, and Remedy

7.1 Infringement Indemnity
Lithium will defend Customer and its directors, officers, employees, affiliates and agents against any third party claim that the Services infringe or misappropriate the intellectual property rights of a third party, provided that: (a) Customer notifies Lithium promptly of the claim; (b) Lithium has sole control of the defense and all related settlement negotiations; and (c) Customer provides Lithium, at Lithium expense, with the assistance, information, and authority reasonably necessary to perform the above. Lithium shall indemnify Customer and hold Customer harmless against any damages or settlement amounts arising out of any such claim.

Lithium shall have no liability for any claim of infringement resulting from any information, design, specification, instruction, software, data, or material furnished by Customer or Services utilized by Customer in any manner not expressly provided herein.

If Lithium reasonably believes that use of any Service is likely to be enjoined, Lithium will use reasonable commercial efforts to procure the rights to use the applicable Service or to modify the same so that it is not infringing. If, after exercising reasonable efforts, Lithium does not procure such rights or modify the applicable Service, then Lithium may terminate this MSA. Customer shall be entitled to a refund of the fees paid for any Services not provided to Customer as a result of any termination under this Section.

This Section states Lithium entire liability and exclusive remedy for infringement of any intellectual property or similar right.

7.2 Customer Indemnity
Customer will defend and indemnify Lithium and its directors, officers, employees, affiliates and agents and shall hold it harmless against any third party claim that Customer’s Data or Customer’s use of the Services in breach of this MSA infringes or misappropriates the intellectual property rights of a third party provided that: (a) Lithium notifies Customer promptly of the claim once Lithium has actual knowledge of same; (b) Customer has sole control of the defense and all related settlement negotiations; and (c) Lithium provides Customer, at Customer’s expense, with the assistance, information, and authority reasonably necessary to perform the above. Customer is solely responsible for results obtained from the use of the Services and for conclusions drawn therefrom.

7.3 Lithium Warranties
Lithium warrants that (a) it has validly entered into this MSA and has the legal power to do so, (b) the Services shall perform materially in accordance with their Documentation and (c) the functionality of the Services will not be materially decreased during a subscription term. Customer’s exclusive remedy for any breach of a warranty above shall be to terminate this MSA for cause and as provided in Section 6.2 (Termination for Cause).

7.4 Customer Warranties
Customer warrants it has validly entered into this MSA and has the legal power to do so.

8 Disclaimers

EXCEPT AS EXPRESSLY PROVIDE HEREIN, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR CONDITIONS, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. ALL SERVICES PROVIDED BY LITHIUM HEREUNDER ARE PERFORMED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND CUSTOMER’S USE OF THOSE SERVICES IS AT ITS OWN RISK. LITHIUM DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DELAY.

8.1 Exclusive Remedy
This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 7.

9 Confidential Information

9.1 Definitions
Confidential Information” means any data or information that is provided or obtained from one party hereunder to the other party, and that is valuable to the disclosing party or its owner and not generally known by the public, including (without limitation) claim or medical information regarding individuals and entities, and the terms and conditions of this MSA, as well as any data or information designated as a trade secret, but which is determined by a court of competent jurisdiction not to rise to the level of a trade secret under applicable law. “Owner” means the party disclosing the Confidential Information and “Recipient” means the party receiving the Confidential Information hereunder.

9.2 Non-Disclosure
Recipient covenants and agrees that it shall not directly or indirectly: (i) disclose, divulge, distribute, publish, reproduce, de-compile, reverse engineer, transmit or transfer to others the Confidential Information of Owner, or any portions thereof, by any means or in any form; (ii) make use of the Confidential Information other than in connection with the rights granted under this MSA; or (iii) disclose, in whole or in part, the Confidential Information to any individual, entity or other person, except to those of Recipient’s employees or independent consultants who (a) require access for Recipient’s authorized use of the Confidential Information, and (b) execute confidentiality agreements containing provisions at least as restrictive as stated herein. If an unauthorized use or disclosure occurs, Recipient will immediately notify Owner and assist Owner in recovering the Confidential Information of Owner and prevent its subsequent unauthorized use or dissemination.

9.3 Term of Non-Disclosure
The restrictions set forth in this Section 8 shall continue: (i) with respect to any trade secret, for as long as such information continues to be a trade secret under applicable law; and (ii) with respect to all other Confidential Information, during the term of this MSA and for a period of three (3) years from the date of its expiration or termination or longer as required by law.

9.4 Limitation
Neither Lithium nor Customer shall have any obligation to preserve the confidentiality of the Confidential Information of the disclosing party to the extent it is information which: (i) was previously known to the receiving party free of any obligation to keep it confidential; (ii) the receiving party can demonstrate is or became publicly available by other than unauthorized disclosure; or (iii) is lawfully received from a third party whose disclosure does not violate any confidentiality obligation. The Receiving Party may disclose the Owner’s Confidential Information to the extent required by court order or similar legal requirement (“Compelled Disclosure”), provided that, the Receiving Party gives adequate written notice of such requirement to allow Owner to obtain protective relief, if possible.

10 Proprietary Rights

10.1 Ownership of the Services
Lithium retains all right, title and interest in and to the Services, any modifications thereto and all material provided by Lithium to Customer and its Authorized Users. Lithium reserves all rights not expressly granted to Customer by this MSA.

10.2 Restrictions
Customer shall not: (i) permit any third party to access the Services except as permitted herein or in an Service Order, (ii) create derivative works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer own intranets or otherwise for Customer own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

10.3 Customer Applications, Code and Data
If Customer, a third party acting on Customer behalf, or an Authorized User creates applications or program code using the Services, Customer authorizes Lithium to host, copy, transmit, display and adapt such applications and program code, solely as necessary to provide the Services in accordance with this MSA. Subject to the above, Lithium acquires no right, title or interest from Customer or Customer licensors under this MSA in or to such applications or program code, including any intellectual property rights therein. Subject to the limited rights granted by Customer hereunder, Lithium acquired no right, title or interest from Customer or Customer licensors under this MSA in or to Customer Data, including any intellectual property rights therein.

10.4 Suggestions
Customer agrees that Lithium shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancements, feedback, recommendations or other information provided by Customer relating to the Service.

10.5 Federal Government End Use Provisions
Lithium provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this MSA. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Lithium to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

11 Limitation of Liability

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR USE, UNDER ANY THEORY OF LAW AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 7.1 AND 7.2 OR BREACH OF A PARTY OBLIGATIONS UNDER SECTION 8, TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS MSA SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SPECIFIC SERVICE OR SUPPORT GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CAUSE OF ACTION AROSE.

12 General

12.1 Relationship Between the Parties
The parties are independent contractors. Nothing in this MSA shall be construed to create a partnership, joint venture, or agency relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each party will maintain appropriate worker’s compensation insurance for its employees as well as general liability insurance.

12.2 Governing Law
This MSA, and all matters arising out of or relating to this MSA, shall be governed by the laws of the State of California, without regard to principals of conflicts of laws. The state and federal courts located in San Francisco, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this MSA. Each party hereby consents to the exclusive jurisdiction of such courts.

12.3 Notice
All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail to the addressee at the address set forth below or in an Service Order or such address as the parties may specify in writing from time to time.

12.4 Severability
In the event any provision of this MSA is held to be invalid or unenforceable, the remaining provisions of this MSA will remain in full force.

12.5 No Waiver
The waiver by either party of any default or breach of this MSA shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of either party’s intellectual property rights, no action, regardless of form, arising out of this MSA may be brought by either party more than two years after the cause of action has accrued.

12.6 Force Majeure
If the performance of this MSA or any obligation (other than payment obligations), is prevented or restricted by any condition beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be excused from such performance to the extent of such condition.

12.7 Assignment
Neither party shall voluntarily or by operation of law assign or transfer this MSA or any rights or obligations hereunder or thereunder, without the express written consent of the other; provided, however, that Lithium may assign this MSA to any third party who succeeds to substantially all its business, stock or assets.

12.8 Entire Agreement
This MSA and any exhibits or Service Order attached hereto constitute the complete agreement between the parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this MSA. This MSA may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage, or custom shall be deemed to amend or modify this MSA. In the event of any conflict between the terms of this MSA and an exhibit or Service Order, the terms of the exhibit or Service Order shall control.