INCORPORATION OF MASTER TERMS AND FORMATION OF CONTRACTS
Sailthru, Inc. and its affiliates worldwide (“Sailthru”) will provide services to You (“Customer”) on the standard terms and conditions set out herein (“Terms”), supplemented by the terms and conditions set out in any Order Form agreed between the parties, and, if You and an authorized representative of Sailthru have mutually executed an additional agreement (a “Contract”), then also subject to the terms of such separate Contract in addition to the terms hereof and in any Order Form. Capitalized terms shall have the meanings set forth in Section 11 or as otherwise defined herein.
In the event of inconsistency between the Terms and the relevant Order Form, the Terms will prevail over the Order Form, except to the extent (if any) that the Order Form specifically identifies the inconsistency and records that the Order Form is to prevail. To the limited extent of any direct contradiction between this Agreement and any other Contract, the terms of such other Contract shall prevail.
SUPPLY OF SERVICES
The Customer may from time to time request modifications to the Services or the Product(s). Sailthru will consider such requests but is not obliged to accept any such request. Sailthru is not required to implement or comply with any requested modification unless and until the modification and any consequential amendments to the Order Form are agreed in writing by the parties.
If Sailthru requests the Customer to provide information or to make a decision in connection with this Agreement, the Customer must, in light of the complexity of the request, do so on a timely basis and use its best efforts to ensure the information or decision is accurate.
From time to time, Customer may request that its advertising agency or Client be allowed to access and use the Services on Customer’s behalf. If Sailthru grants that request, Customer will be given log-in credentials for its agency or Client. Customer shall be responsible for all acts, omissions and breaches of contract of and by its agency or end customer under this Agreement.
Sailthru may include third party software or services into the Services from time to time (“Third Party Services”). For example, Sailthru may include third party software such as data analytics packages within the Services, acting as agent for Customer, for the benefit of Customer. Customer authorizes Sailthru to integrate Third Party Services into the Services on its behalf where applicable. Customer is responsible for securing all rights to use such Third Party Services, and complying with any separate terms and conditions applicable to such Third Party Services. Notwithstanding anything to the contrary, Sailthru is not responsible for any aspect of any Third Party Services.
FEES AND PAYMENT
In consideration for the provision of the Services, the Customer must pay Sailthru the Fees, into an account to be advised by Sailthru, pursuant to the terms of the Order Form and/or Contract, as applicable.
Unless specified otherwise in the Order Form to which the Fees relate:
Sailthru will invoice the Customer for the Fees at the beginning of each calendar month, or upon the earlier expiry or termination of these Terms or the relevant Contract; and
All invoices must be paid within thirty (30) days after the date of invoice.
Where any invoice is overdue by more than ten (10) days then, without limiting its other remedies under these Terms or the Contract to which that invoice relates:
Sailthru can suspend the provision of any Services under this Agreement until the overdue payment is made (and any target completion dates in the Agreement will be adjusted accordingly to allow for the period of suspension); and
Any amount due to Sailthru will bear interest, to accrue from day to day at a rate of 1.5% per month, or the highest amount allowed by applicable law, whichever is lower, from (and including) the date such amount was first due until it is paid in full (before and after judgment).
If the Customer reasonably and in good faith disputes an invoice (or part of an invoice) issued by Sailthru then the Customer must, prior to that invoice be coming due and payable, notify Sailthru in writing of the existence of and reasons for that dispute. Upon giving such notice, the Customer may withhold payment of such disputed amount until the dispute is resolved, but must not delay or withhold payment of any part of the invoice that is not disputed; provided that the Customer must at all times continue to use reasonable and good faith efforts to resolve the dispute in order to continue to avail itself of this mechanism. Except as provided under this clause 3.4, the Customer may not withhold any amount owing pursuant to an invoice issued in accordance with this clause 3, including by way of set-off.
Where any amount disputed under clause 3.4 is subsequently agreed or reasonably determined to be payable to Sailthru in accordance with that clause, that amount will bear interest, as per clause 3.3(b), to be calculated from the date at which that amount would, but for the dispute, have become due and payable.
Where any part of the Terms or a Contract refers to Sailthru being entitled to charge the Customer on a ‘time and materials basis’ for performing particular activities, Sailthru may, with prior notice to the Customer, charge the Client for all reasonable time spent by Sailthru’s personnel in performing those activities, at Sailthru’s hourly rates specified in the Order Form for that Contract (or, in the absence of an Order Form, at Sailthru’s standard rates for the particular Services) and all reasonable out of pocket expenses directly related to the Customer (including travel and accommodation costs) that are incurred by Sailthru in performing those Services.
The Fees are exclusive of all Taxes. The Customer will be responsible for all Taxes payable in respect of the supply of the Services and must pay all such Taxes on demand.
Sailthru will use commercially reasonable efforts to meet any timeframes agreed in an Order Form, subject to clause 4.2. In the absence of a timeframe being stated in an Order Form the Services must be performed within a reasonable time.
Sailthru is not responsible for any delay in performing or failure to perform any of its obligations under this Agreement to the extent that failure is due to an event or circumstance beyond its reasonable control, including:
any failure by the Customer to perform its obligations under this Agreement;
any Force Majeure Event.
If such an event or circumstance occurs, the time for performance of the affected Services or other obligations will be extended by a period equal to the time lost due to the occurrence of the relevant event or circumstance, and Sailthru may recover from the Customer any additional costs reasonably incurred by Sailthru as a result. Where a Force Majeure Event affecting Sailthru and delaying delivery of required Services, persists for more than fifteen (15) business days, either party may terminate any Contract affected by the event or circumstance immediately by written notice to the other party. In the event of any such termination, Customer shall remain responsible for payment in full for all Services delivered prior to the date of such termination.
TERM AND TERMINATION
The term length of this Agreement shall be as set forth in the Order Form or Contract. If no term length is stated in the Order Form or Contract, then the term shall be one year from the effective date. Unless otherwise stated in any Order Form or Contract, this Agreement shall automatically renew for successive one year periods, unless either party opts out in writing at least thirty (30) days prior to the end of the then current term or renewal year. Sailthru may only update pricing at a renewal, by delivering notice of the new pricing at least sixty (60) days prior to such renewal year. Either party may terminate this agreement for the material breach by the other party, if such breach is left uncured after thirty (30) days’ written notice and opportunity to cure.
Either party may terminate these Terms or any Order Form or Contract immediately by written notice to the other party if the other party:
is in material breach of any of its obligations under these Terms or the relevant Order Form or Contract and either that breach is incapable of remedy, or that other party has failed to remedy that breach within thirty (30) days after receiving written notice requiring it to do so; or
is unable to pay its debts, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
The termination of these Terms does not affect any other existing Contracts, and the termination of any Contract does not affect these Terms or any other Contract; provided, however, if Customer is in breach of any Order Form or Contract, Sailthru may elect to terminate only the affected Contracts and Order Forms, or all Contracts and Order Forms with such Customer, in Sailthru’s discretion.
If any Contract or Order Form is terminated under clause 5.2, the Customer is not relieved of its obligation to pay any Fees as follows:
in the event of termination by Customer under clause 5.2, Customer is not relieved of its obligation to pay for any Services performed prior to the date of such termination, but shall not be required to pay for any further Services that would have been provided after the termination date; or
in the event of termination by Sailthru under clause 5.2, Customer is not relieved of any obligation to pay any fees that would have been due and owing for the life the expected term, and shall be responsible for the full amount that would have otherwise been due and payable under the Contracts and Order Forms for all Services delivered or to have been delivered.
LICENSE AND INTELLECTUAL PROPERTY RIGHTS; DATA PRIVACY
Subject to the terms and conditions of this Agreement, including payment by Customer of all Fees required hereunder, Sailthru hereby grants to Customer a limited, non-exclusive, non-transferable subscription license to use the Software and Services (including integration of the Carnival.io SDK into Customer apps) internally during the Term set forth in the applicable Order Form, solely in accordance with the restrictions or scope of any license set forth therein (each a “License”).
Customer agrees to use the Carnival.io Services, and to authorize Customer Users to use the Carnival.io Services solely within the scope of any such License. On or as soon as reasonably practicable after the Effective Date, Sailthru shall provide to Customer the necessary passwords, security protocols, policies and network links or connections (the “Access Protocols”) to allow Customer to access and use the Carnival.io Services.
Customer shall not, and shall not attempt to (and shall not authorize or allow any third party) to or attempt to: (a) download or otherwise obtain a copy of any SaaS subscription Software in any form; (b) reverse engineer or otherwise derive the source code of any Software; (c) resell the Software, or otherwise use the Software on behalf of any third party or for any purpose other than as described in this Agreement; (d) use the Software or Service to store or distribute any virus, Trojan horse or other malicious code; (e) attempt to interfere with or disrupt the Software or Service or any data therein or any other user’s access thereto; (f) attempt to circumvent any usage limits or permit any other party to do the same; (g) copy, frame or mirror any portion of the Software or Service; or (h) leverage the Software or Service, or your use thereof or knowledge and experience gained therefrom, to attempt to build any competing product or service.
Customer shall comply with all applicable laws and requirements, including without limitation all laws and requirements regarding privacy, the collection, use, disclosure, retention and transfer of personal data and other data, usage tracking, etc.
Nothing in this Agreement transfers to either party any Pre-Existing IP of the other party. Customer shall continue to own all data and content it owned prior to this Agreement or that it creates independent of this Agreement, even if it inputs such content or data into the Software or Services (“Customer Data”). Customer is responsible for all Customer Data, including for ensuring its accuracy and that Customer and Client have all necessary rights and consents to use the Customer Data and the data of Client’s end users (“Client Data”) for the purposes described in the Agreement. Any data or other outputs created by or through the use of the Software or Services shall be owned by Sailthru, including without limitation, all usage data, anonymous data and de-identified data.
All IP in any Product, and all IP otherwise developed for the Customer by Sailthru in performance of the Services, and any alterations, additions or amendments to IP, shall be the property of Sailthru.
Sailthru is granted a non-exclusive, worldwide, royalty-free license to use the Customer Data and the Pre-Existing IP of the Customer, to the extent necessary to perform its obligations under this Agreement.
Despite anything else in these Terms, the Customer acknowledges that Sailthru owns the Software and nothing in these Terms transfers ownership of the Software to the Customer or any other person. Sailthru does not grant any license to the Customer or any other person to use the Software, unless such a license is expressly granted in the relevant Order Form.
Nothing contained in these Terms shall preclude Sailthru from rendering services to others or developing work products that are competitive with, functionally comparable to, and not unlike the Services and Products under an Order Form with Customer. Sailthru shall not be restricted in its use of ideas, concepts, know-how, and techniques acquired or learned in the course of performing the Services and developing the Products, including functionality included in Products; provided that Sailthru shall not use or disclose any of the Customer’s Confidential Information or use any logos, trademarks, or servicemarks of the Customer or any Affiliate of the Customer.
CONFIDENTIALITY AND ANNOUNCEMENTS
Each party undertakes that it shall not at any time disclose to any person any information disclosed to it by the other party concerning the business or affairs of the other party, including but not limited to information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (“Confidential Information”), except as permitted by clause 7.2 or 7.3, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party.
Each party may disclose the other party’s Confidential Information:
to its employees, officers, agents, consultants or subcontractors (“Representatives”) who need to know such information for the purposes of carrying out the party’s obligations under this Agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 7 as though they were a party to this Agreement, and the disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause;
as may be required by law, court order or any governmental or regulatory authority; or
to the extent this cannot be avoided in the course of lawful enjoyment of the disclosing party’s (licensed or owned) IP Rights referred to in clause 6.
Unless specified otherwise in the Order Form:
Sailthru may disclose in its marketing materials (including websites) that it has performed the Services and developed the Products for the Customer, and give basic details of the Services and Products including reasonable screenshots, including incidental use of the Customer’s trademarks or other IP rights which may be incorporated into the materials, for this limited purpose; and
If the Customer has contracted for the benefit of one of the Customer’s own clients, the Customer must procure the consent of such client as set forth in Section 7.3(a) to also allow such references to such client, and incidental use of the client’s trademarks or other IP rights which may be incorporated into the materials, in the manner set out in clause 7.3(a).
The Customer agrees to give Sailthru appropriate credit for its role in the integration of its Software into any Customer or Client product, such as with “ingredient” branding or “powered by” branding, and must be explicitly credited if the product receives any award related thereto.
During the term of this Agreement, including any renewals, we may use your name and logo in a list of customers and clients.
WARRANTIES AND INDEMNITY
Sailthru warrants that it will perform the Services:
using suitably qualified and experienced personnel; and
to a reasonable standard.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 8.1, ANY SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SAILTHRU EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
The Customer must at all times defend, indemnify and hold Sailthru and its respective officers, employees and agents harmless from and against any and all third party claims and all Liability suffered or incurred by any of them arising out of or in connection with: (a) Customer’s breach of any representation, warranty, covenant or obligation in this Agreement, including any Contract, or any breach of applicable law; or (b) any Customer Pre-Existing-IP or any content or other materials supplied by Customer to Sailthru, or the use thereof by Sailthru in accordance with this Agreement.
This indemnity does not apply to the extent that such Liability arises as a result of the use or incorporation in such materials of any of Sailthru’s Pre-Existing IP or any other IP Rights developed solely by Sailthru in the course of providing the Services.
Sailthru must at all times defend, indemnify and hold the Customer and its respective officers, employees and agents harmless from and against any and all third party claims and all third party Liability suffered or incurred by any of them to the extent arising out of or in connection with: any claim that the Software or Services, as delivered and unmodified (and not combined with any other software, products or services), infringe any third party rights.
This indemnity does not apply to the extent that such Liability arises as a result of the use or incorporation in such materials of any of the Customer’s Pre-Existing IP or is an unavoidable consequence of the Customer’s specifications for the materials. Sailthru’s sole liability and Customer’s sole and exclusive remedy for any breach of the limited warranty set forth above shall be, in Sailthru’s sole discretion, to (x) use commercially reasonable efforts to repair or replace the infringing Software or Service so it is no longer infringing, or (y) terminate the applicable Services and refund any pro rata unused amounts.
To the maximum extent permitted by law, Sailthru will not be liable for:
any indirect or consequential loss or damage, any loss of profit, loss of revenue, loss of business opportunities, loss of data or loss of goodwill arising out of or in connection with this Agreement (whether or not the loss or damage may reasonably be supposed to have been in the contemplation of the parties as at the date this Agreement was formed as a probable result of any act or omission); or
any loss or damage in respect of any Liability unless a claim in respect of that Liability is made in writing and in reasonable detail by the Customer within six (6) months after the circumstances giving rise to the Liability first became known to the Customer.
Without limiting clause 9.1, to the maximum extent permitted by law, Sailthru’s aggregate liability:
Under any Order Form or Contract, is limited to an amount equal to the aggregate Fees paid by the Customer under that Contract in the immediately preceding twelve (12) months; and
Under these Terms (if there is no relevant Order Form or Contract), is limited to $10,000.00.
The limitations and exclusions in this clause 9 apply to any Liability whether based in contract (including under any indemnity or for breach of any warranty), tort (including negligence), under statute or on any other legal basis.
Sailthru shall maintain reasonable and adequate insurance at all times throughout the provision of Services under these Terms or any Contract and will provide details of this cover to the Customer on request.
Sailthru reserves the right to update these Terms from time to time by posting a new version online. You are responsible for checking this website for updates.
If you are a Customer of Sailthru, Inc., or visiting a Sailthru, Inc. owned website, then these Terms and all Order Forms and Contracts are governed by the laws of the State of New York, and each party submits to the non-exclusive jurisdiction of the courts in the State of New York. If you are a Customer of Sailthru NZ Limited, then these Terms and all Order Forms and Contracts are governed by the laws of New Zealand, and each party submits to the non-exclusive jurisdiction of the courts in New Zealand.
Neither party may assign its rights or obligations under these Terms or any Order Form or Contract without the consent of the other party (not to be unreasonably withheld or delayed), except in the case of a merger, or the sale of all or substantially all its assets or stock. Sailthru may, without prior written approval of the Customer, subcontract any of its obligations under any Contract or Order Form, but such subcontracting will not release Sailthru from its liabilities under that Contract, Order Form or these Terms.
In providing the Services, Sailthru is acting in the capacity of independent contractor. Neither these Terms nor any Order Form or Contract, constitutes any partnership, trust, agency, joint venture or employment relationship between the parties.
Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of these Terms, any Order Form or Contracts and the transactions contemplated by them.
Any Contract or Order Form may be executed in any number of counterparts and all the counterparts when taken together will constitute one agreement. Each party may enter into any Contract or Order Form by executing a counterpart and by an exchange of facsimile and/or scanned and emailed PDF copies and execution of any Contract or Order Form by that means is valid and sufficient execution. Electronic signature is also valid and consented to by the parties as an alternative.
The following definitions apply in these Terms and all Contracts unless the context requires otherwise.
Carnival.io Services or Services in respect of a Contract, means the Software and services to be provided by Sailthru under that Contract as set out in the Order Form for that Contract, or if there is no Order Form, means such services as may have been agreed between the parties.
Carnival.io Software or Software means any commercial software product(s) of Sailthru, available via www.carnival.io and licensed to Customer under any Order Form, whether by SaaS subscription, download or otherwise.
Client means an entity that has a contractual relationship with Customer pursuant to which Customer provides, and/or has a right to purchase, certain services on behalf of such entity.
Commencement Date in respect of a Contract means the date specified as such in the Order Form for that Contract. If no date is specified, then it shall mean the earlier of the date the Order Form was executed, or when Sailthru began providing the Services.
Contract has the meaning as defined in Section 1.
Customer User means a Customer or Client employee or independent contractor that Customer authorizes to use the Carnival.io Services on behalf of Customer or Client under the terms of this Agreement.
Fees in respect of a Contract means the fees for the Services as set out in the Order Form for that Contract or if there is no Order Form, on a time and materials basis.
Force Majeure Event means an act of war (whether declared or undeclared), invasion, armed conflict, act of foreign enemy, revolution or terrorism, act of God or any other incident beyond the control of the party relying on it.
IP and IP Rights means all copyright and similar rights (including rights in computer programs, documentation, drawings, writings and art works), all rights in relation to inventions including patents and patent applications, modifications or improvements to the same, registered and unregistered trade marks, registered and unregistered designs, rights in relation to trade secrets, know-how and other confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Liability includes any claim, loss, damage, liability, cost, expense (including legal costs and attorney fees), tax, outgoing or payment of whatever nature (whether foreseeable or not).
Pre-Existing IP in respect of a party means any materials (including software, processes and methodologies) in which IP Rights subsist, which are owned by or licensed to that party, and which existed as at the commencement of the provision of Services under these Terms or any Contract or were developed independently of the performance of that party’s obligations under these Terms or any Contract.
Product means any materials (including information, images, designs, reports, documentation, specifications, data and software) produced or required to be produced in connection with the performance of Services.
Tax includes any tax, levy, impost, deduction, charge, rate, duty or withholding that is levied or imposed by a regulatory agency, including, but not limited to, and any related interest, penalty, charge, fee or other amount.
Last Updated: April 20, 2016