This Silkrun Master Subscription Agreement (“MSA”) is entered into by and between Dubsof Limited, a private company limited by shares incorporated in Ireland with company number 787713 and a place of business at 55 Merrion Square South, Dublin 2, Ireland (“Dubsof”), and the entity or person (i) executing an order form for the Services that expressly references this MSA (“Order Form”) or (ii) signing up for and accessing the Services on a free trial basis (“Trial Services”) who, in each case, agrees to be bound by this MSA to the exclusion of all other terms (as applicable, “Customer”) (each of Customer and Dubsof, a “Party”, and together, the “Parties”). The MSA consists of the terms and conditions set out below and incorporates by reference any ancillary documents (e.g., attachments, addenda, exhibits) expressly referenced herein.
The “Effective Date” of this MSA is (a) the effective date of the first Order Form executed by the Parties or (b) in the case of Trial Services, the date Customer receives its credentials to access the Services by accepting this MSA through Dubsof’s free trial sign-up, as applicable.
Section 1. Services and Support
1.1. Services. “Services” means the Silkrun platform and the other Dubsof products and services that are made available to Customer by Dubsof hereunder. Subject to the terms and conditions of this MSA, Dubsof will make the Services available to Customer for the service period of Customer’s subscription specified on the applicable Order Form (“Service Period”). Dubsof will provide the Services in accordance with the Service Level Agreement available at https://legal.dubsof.com/sla.
1.2. Support. Dubsof will provide commercially reasonable support during the Service Period in accordance with Dubsof’s Support Policy, available at https://legal.dubsof.com/support-policy.
Section 2. Fees and Payment; Usage Limits; Trial Services
2.1. Payment and Taxes.
2.1.1. Fees. “Fees” means the fees payable by Customer to Dubsof for the applicable Services, as set out on the Order Form. Unless the Order Form states otherwise, Fees are a fixed annual subscription fee for each year of the Service Period, payable in the instalments set out in the payment schedule on the Order Form. Customer is responsible for all Fees set out in the Order Form. Dubsof will invoice Customer for such Fees using the billing information set out therein. If Customer pays by direct debit, credit card or a similar automated payment method, Dubsof will charge that payment method for all Fees due, including renewals and add-on purchases, as applicable, unless another payment method is requested in writing by Customer. Customer shall pay all Fees in accordance with the payment terms set out in the applicable Order Form or, if the Order Form sets out no payment terms, within thirty (30) days of the date of the applicable invoice. Except as expressly set out in this MSA, all payment obligations are non-cancellable and Fees are non-refundable and not subject to set-off. In the event of non-payment of Fees by Customer for fifteen (15) days after the due date of an invoice, Dubsof reserves the right to (i) immediately suspend Customer’s access to the Services until Customer pays the entire remaining balance of Fees and/or (ii) charge interest on past due amounts at the rate provided for under the European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S.I. No. 580 of 2012). Dubsof will promptly restore Customer’s access to the Services once such non-payment is cured.
2.1.2. Fee Disputes. If Customer has a bona fide belief that an invoice is incorrect, Customer must contact Dubsof within thirty (30) days of the date of the applicable invoice (“Dispute Period”). Upon receipt of such notice, Dubsof and Customer will work together in good faith to resolve the dispute and, if such disputed amount(s) are deemed legitimate, Customer agrees to pay such amounts promptly upon resolution of the dispute (and in any event, within 30 days thereafter). If Customer does not notify Dubsof of a dispute within the Dispute Period, all invoiced Fees will be deemed legitimate and owing in accordance with this MSA.
2.1.3. Taxes. Fees do not include taxes, levies, duties or similar governmental assessments of any nature, including, for example, any value-added, sales, use, GST, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its purchase of the Services, excluding Taxes based on Dubsof’s net income or receipts, property or employees. Where the reverse charge mechanism applies to the supply of the Services, Customer shall account for any applicable value-added tax.
2.2. Price Changes; Discounts and Promotions. Prices specified in the Order Form may include discounts or promotional pricing. Dubsof may change prices for the Services and/or discontinue or change any promotion, sale, or special offer in its sole discretion; provided that any such changes or discontinuations will only be effective upon the commencement of Customer’s next Service Period and will not impact the Fees payable for the then-current Service Period. Dubsof will provide Customer with reasonable notice of any Fee increases prior to the expiration of the then-current Service Period.
2.3. Usage Limits. An Order Form may specify a usage tier and a limit on Customer’s use of the Services for that tier, measured in the manner set out in the Order Form (“Usage Limit”). The Fees include all use of the Services up to the Usage Limit. Unused usage does not carry over to any later period. If Customer’s use of the Services exceeds the Usage Limit, Dubsof will notify Customer and the Parties will discuss in good faith an upgrade to a higher usage tier, with any additional Fees pro-rated for the remainder of the then-current Service Period and set out in a new Order Form. Until such an upgrade is agreed, Dubsof may limit or throttle Customer’s use of the Services above the Usage Limit. If an Order Form does not specify a Usage Limit, Customer’s use of the Services must remain consistent with the normal internal business operations of an organisation of Customer’s size, and the preceding two sentences apply where Customer’s use materially exceeds that level.
2.4. Free Trial Services; Beta Services.
2.4.1. Trial Services. If Customer registers for Trial Services, Dubsof will make the applicable Trial Services available to Customer pursuant to this Section 2.4.1 once Customer is approved for such Trial Services until the earlier of: (a) the end of the trial period communicated to Customer; (b) the start date of any Order Form entered into by Customer for Service(s) in exchange for payment; or (c) termination by Dubsof in its sole discretion (such period, the “Trial Services Period”).
DUBSOF WILL HAVE NO OBLIGATION TO RETAIN ANY CUSTOMER INFORMATION THAT CUSTOMER PROVIDES OR MAKES AVAILABLE TO DUBSOF DURING THE PROVISION OF TRIAL SERVICES AND SUCH CUSTOMER INFORMATION WILL BE SUBJECT TO PERMANENT DELETION FOLLOWING THE END OF THE TRIAL SERVICES PERIOD, UNLESS CUSTOMER ENTERS INTO AN ORDER FORM FOR THE SAME SERVICES AS THOSE COVERED BY THE TRIAL SERVICES.
2.4.2. Beta Offerings. From time to time, Dubsof may make Beta Offerings available to Customer at no charge. “Beta Offerings” means pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings. Customer may elect to try such Beta Offering(s) in its sole discretion. Beta Offerings are intended for evaluation purposes, not for production use, and may be subject to additional terms. Beta Offerings are not considered “Services” under this MSA; however, all prohibited uses, Customer obligations and terms regarding Dubsof’s ownership concerning the Services shall apply to Beta Offerings. Unless otherwise stated or communicated to Customer, any Beta Offerings trial period will expire upon the date that a version of the Beta Offerings becomes generally available without a “Beta Offerings” designation. Dubsof may discontinue Beta Offerings at any time in its sole discretion and may never make them generally available.
2.4.3. Disclaimers. NOTWITHSTANDING SECTIONS 1.2 (SUPPORT), 7 (REPRESENTATIONS, WARRANTIES AND DISCLAIMERS) AND 8 (INDEMNIFICATION) BELOW, TRIAL SERVICES AND BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY AND DUBSOF SHALL HAVE NO SUPPORT OR INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL SERVICES OR BETA OFFERINGS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE DUBSOF’S LIABILITY WITH RESPECT TO THE TRIAL SERVICES AND BETA OFFERINGS SHALL NOT EXCEED ONE THOUSAND EUROS (€1,000.00). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9 (LIMITATION OF LIABILITY) BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS MSA TO DUBSOF AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE TRIAL SERVICES, ANY BREACH BY CUSTOMER OF THIS MSA AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.5. Reseller Purchases. The Parties agree that Customer may purchase the Services through a reseller authorised by Dubsof to sell its products and services (“Authorised Reseller”). Silkrun subscriptions purchased via Authorised Resellers are governed by this MSA. Services purchased through an Authorised Reseller, including multi-year subscriptions, are not subject to cancellation by Customer unless terminated in accordance with Section 3.2. Where Customer purchases the Services through an Authorised Reseller, the Authorised Reseller will enter into an Order Form with Dubsof for the purchase of Services that references this MSA and Customer as end user, and Authorised Reseller and Customer will enter into a separate agreement setting out the fees to be paid by Customer to Authorised Reseller for such Services, as well as any other terms or conditions that apply between them. Dubsof hereby agrees that, subject to receiving payment from the Authorised Reseller, it shall be responsible to Customer, pursuant to the terms and conditions of this MSA, for providing the Services under any such Order Form. Customer hereby acknowledges that Dubsof will not be responsible for the obligations of any Authorised Reseller to Customer under such separate agreement, for the acts or omissions of Authorised Reseller, or for any third party products or services furnished to Customer by any Authorised Reseller. For the avoidance of doubt, where Customer purchases the Services through an Authorised Reseller, (a) Sections 2.1 and 2.2 above will be of no effect and (b) the Fees Customer pays, including any increases thereto upon renewal, will be determined by the Authorised Reseller, as payment and taxes will be addressed in the agreement between Authorised Reseller and Customer.
Section 3. Term and Termination
3.1. Term and Renewal.
3.1.1. MSA. This MSA commences on the Effective Date and will remain in effect until all Order Forms have expired or been terminated in accordance with this Section 3.
3.1.2. Order Form. The Service Period for each Order Form shall be set out therein; provided that if the Order Form does not specify a Service Period, the Service Period will be one (1) year. Unless otherwise expressly stated in the applicable Order Form, upon expiration of the Service Period, Customer’s subscription will automatically renew for successive one (1) year Service Periods unless Customer provides Dubsof with notice of termination at least thirty (30) days prior to the end of the then-current Service Period.
3.2. Termination for Cause. A Party may terminate this MSA or an Order Form for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured after ten (10) days from the date of the breaching Party’s receipt of such notice; (b) if the other Party becomes the subject of any proceeding relating to insolvency, examinership, receivership, liquidation, winding up, a scheme of arrangement or a composition or arrangement with its creditors, or any equivalent proceeding in any jurisdiction, that is not dismissed within sixty (60) days of the commencement thereof; or (c) immediately by Dubsof if Customer violates Section 4.5 (Prohibited Uses) of this MSA. Non-payment of Fees by Customer for thirty (30) days after the due date of an invoice and any violation of Section 4.5 (Prohibited Uses) will be considered material breaches of this MSA.
3.3. Effect of Termination and Survival. Termination of this MSA will concurrently terminate all active Order Forms. Upon termination of this MSA and/or an Order Form, (a) subject to the Silkrun Data Act Addendum available at https://legal.dubsof.com/data-act (the “Data Act Addendum”), which forms part of this MSA, Customer will have no further right to use the Services under the terminated or cancelled Order Form(s) and Dubsof will remove Customer’s access to the same, and (b) unless otherwise specified herein, Customer will not be entitled to a refund of Fees paid; provided that if Customer terminates for Dubsof’s uncured material breach in accordance with Section 3.2 (Termination for Cause), Customer shall be entitled to a pro-rata refund of any prepaid, unused Fees paid to Dubsof. The following Sections will survive termination: Section 2 (Fees and Payment) for any Fees due and payable at the time of termination, Section 3.3 (Effect of Termination and Survival), Section 4 (Ownership, Licence, and Use of the Services), Section 5 (Confidentiality), Section 7.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of this MSA will not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this MSA.
Section 4. Ownership, Licence, and Use of the Services
4.1. Ownership. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and proprietary rights (“Intellectual Property Rights”). Dubsof will retain all Intellectual Property Rights in and to the Services and all components of, or used to provide, the Services and any other materials developed by Dubsof in its performance hereunder that derive from, improve, enhance or modify the Services or other Dubsof pre-existing intellectual property (collectively with the corresponding Intellectual Property Rights, “Services Information”). Customer will retain Intellectual Property Rights in all information uploaded to the Services by or on behalf of Customer (other than Feedback as described below), including any outputs or results thereof produced by the Services from such information (excluding any Dubsof intellectual property embedded therein) (collectively, “Customer Information”).
4.2. Feedback. Customer may, under this MSA, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Dubsof (“Feedback”). Customer hereby grants Dubsof a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual licence to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback; provided that Dubsof may not breach its obligations of confidentiality under Section 5 in doing so. Dubsof also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback and, as between the Parties, Dubsof shall own all right, title and interest in and to such derivatives.
4.3. Licences. Subject to Customer’s compliance with the terms and conditions of this MSA (including any limitations and restrictions set out on an applicable Order Form), Dubsof hereby grants Customer a non-exclusive, non-transferable, non-sublicensable limited right and licence to access and use the Services or Trial Services, as applicable, solely during the applicable Service Period or Trial Services Period for Customer’s internal business purposes. Customer hereby grants Dubsof a non-exclusive, non-transferable, non-sublicensable right and licence to use Customer Information solely to provide the Services to Customer. Notwithstanding anything to the contrary, Dubsof may generate, collect, use, and analyse usage data generated or derived from Customer’s use of the Services (“Usage Data”), including log data and metadata, to develop, improve, promote, support, and operate its products and services; provided that such Usage Data may only be shared with third parties in a manner that is aggregated and/or anonymised and does not identify Customer or any Authorised Users.
4.4. Authorised Users. Customer may designate and provide access to the Services to its authorised employees, agents, or contractors (each an “Authorised User”). Customer is responsible for all use and misuse of the Services by Authorised Users and for adherence to all terms of this MSA by any Authorised Users as though such Authorised Users were parties hereto, and references to Customer herein will be deemed to apply to Authorised Users as necessary and applicable. Customer agrees to promptly notify Dubsof of any unauthorised access or use of which Customer becomes aware. Authorised Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of this MSA by Customer.
4.5. Prohibited Uses. Customer will not, and will not permit any Authorised Users or third parties to, directly or indirectly: (a) “frame”, distribute, resell, or permit access to the Services by any third party other than as allowed by the features and functionality of the Services; (b) use the Services in violation of applicable laws, rules or regulations; (c) interfere with, disrupt, or gain unauthorised access to the Services; (d) successfully or otherwise, attempt to: decompile, disassemble, reverse engineer, discover the underlying source code or structure of, or copy the Services; (e) provide Dubsof any Customer Information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party Intellectual Property Rights; (f) transfer to the Services or otherwise use on the Services any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorised access to the Services; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services; (h) provide access to the Services to an individual associated with a Dubsof Competitor (as defined below); (i) extract information from the Services or otherwise access or use the Services in furtherance of replicating the Services or otherwise competing with Dubsof; (j) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (k) copy, distribute, manufacture, adapt, create derivative works of, translate, localise, port or otherwise modify any aspect of the Services; (l) introduce into the Services any software containing a virus, worm, “back door”, Trojan horse or similarly harmful code; (m) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; or (n) permit any third party to engage in any of the foregoing proscribed acts (each of (a) through (n), a “Prohibited Use” and, collectively, “Prohibited Uses”). A “Dubsof Competitor” is any entity that provides the same or similar goods and services to those provided by Dubsof, as would be determined by a reasonable individual. Customer will promptly notify Dubsof of any violations of the Prohibited Uses and take all necessary steps to prevent or cease any such use(s). Dubsof reserves the right to suspend Customer and/or Authorised User’s access to the Services in the event Dubsof reasonably suspects Customer or an Authorised User is in breach of this Section. Customer will also comply with, and ensure that its Authorised Users comply with, the Silkrun Acceptable Use Policy available at https://legal.dubsof.com/acceptable-use (the “Acceptable Use Policy”), which forms part of this MSA. Any breach of the Acceptable Use Policy is a Prohibited Use.
4.6. Artificial Intelligence.
4.6.1. AI Features. Customer acknowledges that the Services include features that leverage the use of artificial intelligence, machine learning, or similar technologies provided by Dubsof and/or its licensors (“AI Features”). Dubsof will not, and will not permit any third party to, use any Customer Information to train any artificial intelligence or machine learning models; provided that Dubsof may use Feedback (e.g., Customer labelling of suggestions from AI Features with a thumbs up or thumbs down) and Usage Data for the purpose of training and improving its AI Features.
4.6.2. Disclaimer. Dubsof makes no covenants, representations or warranties regarding any outputs generated, transmitted or made available in connection with Customer’s or any Authorised User’s use of AI Features (“AI Outputs”), including, without limitation, with respect to the accuracy, quality or truthfulness thereof. AI Outputs should be used at Customer’s own risk. Due to the nature of AI Features generally, Customer acknowledges that it is possible that (a) Customer’s AI Outputs may be similar to outputs generated by other Dubsof customers’ use of the Services, (b) the same input may result in different AI Outputs from one use to the next and (c) the AI Outputs may not be accurate, reliable or suitable for Customer’s requirements. Before leveraging any AI Outputs in any manner, Customer and its Authorised Users are responsible for making their own determination that the AI Outputs are suitable, and Customer is solely responsible for any reliance on the accuracy, completeness, or usefulness of any AI Outputs.
4.6.3. Actions. The Services include AI agents and automated workflows that can take actions on Customer’s behalf, such as sending messages, creating or changing records, and triggering processes in Customer’s systems and Third Party Products (“Actions”). Customer controls, through its configuration of the Services, which Actions may be taken and which require approval by an Authorised User. Every Action taken in accordance with that configuration, or approved by an Authorised User, is taken on Customer’s instructions, and Customer is responsible for it. Customer is responsible for reviewing any Action submitted for approval before an Authorised User approves it. Dubsof will have no liability for the consequences of an Action taken in accordance with Customer’s configuration or approvals, except to the extent caused by Dubsof’s breach of this MSA.
4.6.4. Communications and Transparency. Where Customer uses the Services to communicate with third parties, including its own customers, suppliers and other contacts, Customer is responsible for those communications and for complying with the laws that apply to them, including laws on electronic marketing and consent. Customer is the deployer of the AI Features it uses and is responsible for the obligations that apply to deployers under Regulation (EU) 2024/1689 (the “AI Act”) and other applicable law, including informing people that they are interacting with an AI system, or that content was generated by AI, where the law requires it. Dubsof will design the AI Features so that Customer is able to meet those obligations.
4.7. Silkrun Applications. The software code, applications, workflows, agents and other components that the Services generate, deploy or run for Customer (“Silkrun Applications”) are Services Information and, notwithstanding Section 4.1, are not Customer Information, except for any Customer Information they contain. Descriptions of Customer’s business processes held in the Services are Customer Information. Subject to Customer’s compliance with this MSA, Dubsof grants Customer a non-exclusive, non-transferable, non-sublicensable right during the Service Period to use the Silkrun Applications for Customer’s internal business purposes as part of the Services. Dubsof may maintain, update, modify and redeploy Silkrun Applications at any time, including by applying updates across the Services as a whole, provided that Dubsof will not materially reduce the functionality of a Silkrun Application that Customer uses during the then-current Service Period without giving Customer reasonable notice.
Section 5. Confidentiality
As used herein, “Confidential Information” of a Party (“Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (“Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Services Information is Dubsof’s Confidential Information and Customer Information is Customer’s Confidential Information under this MSA. The Receiving Party agrees to keep Confidential Information in confidence using the same degree of care that the Receiving Party uses to protect its own Confidential Information (but in no event less than reasonable care). Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent; provided the Receiving Party may disclose Confidential Information to its and its Affiliates’ employees and contractors who have a legitimate need to know such information and who are bound by obligations of confidentiality and non-use at least as protective of the Confidential Information as those in this Section 5. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations or exercise its rights under this MSA, such obligations including, in the case of Dubsof, to provide the Services.
Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding to the extent permissible according to applicable law. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party. Due to the unique nature of Confidential Information, the Parties agree that the Disclosing Party shall be entitled to seek an injunction or similar equitable relief against any breach or threatened breach of this Section without the necessity of posting any bond or showing irreparable harm.
Section 6. Privacy and Security Practices
Dubsof will implement and maintain appropriate administrative, physical and technical safeguards during the Service Period to protect the security, confidentiality and integrity of Customer Information, as described at https://legal.dubsof.com/security. The Data Processing Addendum available at https://legal.dubsof.com/dpa (“DPA”) is hereby incorporated by reference and shall govern the processing of personal data carried out as part of the Services.
Section 7. Representations, Warranties, and Disclaimers
7.1. Authority. Each Party represents that it has validly entered into this MSA and has the legal power to do so.
7.2. Limited Warranty. Dubsof warrants that during an applicable Service Period the Services will perform materially in accordance with any applicable documentation provided to Customer. This warranty shall not extend to non-conformity with the documentation resulting from Customer’s use of the Services in violation of the MSA or not in accordance with such documentation. For any breach of a warranty in this Section, Customer’s exclusive remedies are those described in Section 3.2 (Termination for Cause).
7.3. Disclaimers. EXCEPT AS SPECIFICALLY SET OUT IN THIS SECTION, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, AI OUTPUTS, SERVICES INFORMATION AND ANY OTHER INFORMATION OR ADVICE OBTAINED BY CUSTOMER THROUGH THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR TERMS OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND DUBSOF EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS AND TERMS, WHETHER EXPRESS OR IMPLIED (INCLUDING ANY TERMS IMPLIED BY THE SALE OF GOODS ACT 1893 OR THE SALE OF GOODS AND SUPPLY OF SERVICES ACT 1980), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE PARTIES ADDITIONALLY AGREE THAT DUBSOF WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR CUSTOMER’S COMPLIANCE WITH ANY LEGAL, REGULATORY, TAX OR ACCOUNTING OBLIGATIONS, AND THAT THE SERVICES, TO THE EXTENT APPLICABLE, ARE ONLY TOOLS FOR ASSISTING CUSTOMER IN MEETING THOSE OBLIGATIONS, FOR WHICH CUSTOMER IS SOLELY RESPONSIBLE.
Section 8. Indemnification
8.1. Indemnification by Dubsof. Dubsof will indemnify and hold Customer harmless from any Losses (defined below) arising out of an unaffiliated third party’s claim (“Claim”) that the Services infringe or misappropriate such third party’s Intellectual Property Rights. Dubsof will, at its sole expense, defend such Claim and pay liabilities and expenses awarded to such unaffiliated third party by a court of competent jurisdiction or agreed to in a settlement (collectively, “Losses”) in connection with such Claim. If use of a Service by Customer has become, or, in Dubsof’s opinion, is likely to become, the subject of any such Claim, Dubsof may, at its option and expense, (i) procure for Customer the right to continue using the Service(s) as set out hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Dubsof, terminate this MSA and repay, on a pro-rata basis, any Fees previously paid to Dubsof for the corresponding unused portion of the then-current Service Period for related Services. Dubsof will have no liability or obligation under this Section with respect to any Claim if such Claim is caused in whole or in part by (a) any use of the Services in non-conformity with the documentation or in violation of this MSA; (b) modification of the Services by anyone other than Dubsof; or (c) the combination, operation or use of the Services with other hardware or software where the Services would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Dubsof to Customer and constitute Customer’s sole remedy with respect to an infringement claim brought by reason of access to or use of a Service by Customer or Authorised Users.
8.2. Indemnification by Customer. Customer will indemnify and hold Dubsof harmless from any Losses arising out of a Claim related to Customer Information. Customer will, at its sole expense, defend Dubsof against such Claim and pay any Losses in connection therewith.
8.3. Indemnification Conditions and Procedures. The obligations of the indemnifying Party in this Section 8 are conditioned upon the indemnified Party (i) promptly notifying the indemnifying Party of the threat or notice of such claim (provided that a failure to provide such notice shall only relieve the indemnifying Party of its indemnity obligations if the indemnifying Party is materially prejudiced by such failure); (ii) giving the indemnifying Party sole and exclusive control and authority to select defence solicitors, and defend and/or settle any such claim (however, the indemnifying Party may not settle or compromise any claim that results in liability or admission of any liability by the indemnified Party without prior written consent provided that such consent shall not be unreasonably conditioned, withheld or delayed); and (iii) cooperating with the indemnifying Party, at the indemnifying Party’s expense, in connection with the defence and/or settlement in connection therewith.
Section 9. Limitation of Liability
9.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE) WILL EITHER PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (I.E., DATA LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF DUBSOF), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
9.2. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS MSA WILL EXCEED THE AGGREGATE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH CLAIM (“GENERAL CAP”); PROVIDED THAT FOR CLAIMS ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, SECURITY OBLIGATIONS UNDER SECTION 6 OR THE DPA, EACH PARTY’S AGGREGATE LIABILITY WILL NOT EXCEED TWO TIMES (2X) THE GENERAL CAP.
9.3. NOTWITHSTANDING SECTIONS 9.1 AND 9.2, NOTHING IN THIS MSA WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (I) GROSS NEGLIGENCE, FRAUD, INTENTIONAL MISCONDUCT, (II) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, (III) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 2, (IV) CUSTOMER’S VIOLATION OF SECTION 4.5, (V) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR (VI) ANY OTHER MATTER FOR WHICH LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW.
9.4. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THIS MSA BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF DUBSOF WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET OUT HEREIN. DUBSOF HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS MSA.
Section 10. Miscellaneous
10.1. Entire Agreement; Order of Precedence. This MSA (including the documents it incorporates by reference, such as the DPA, the Acceptable Use Policy and the Data Act Addendum) and any active Order Forms constitute the entire agreement, and supersede all prior agreements, between Dubsof and Customer regarding the subject matter hereof. In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) shall be incorporated into, or considered an amendment to, this MSA or any Order Form and all such terms or conditions are hereby deemed null and void, notwithstanding any language to the contrary therein, whether signed or issued before or after this MSA.
10.2. Assignment. Neither Party may assign this MSA without the prior written consent of the other Party, except that either Party may, without the need for such consent, assign this MSA to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party’s assets; provided that (1) the other Party is provided notice of such assignment and (2) any such successor agrees to fulfil its obligations pursuant to this MSA. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
10.3. Severability. If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
10.4. Relationship of the Parties; Third-Party Beneficiaries. The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries under this MSA, except to the extent expressly stated herein.
10.5. Notices. All notices provided by Dubsof to Customer under this MSA may be delivered in writing (a) by recognised courier service (“Courier”) or registered post to the contact mailing address provided by Customer on the Order Form; or (b) by email to the email address provided for Customer’s account owner. Customer must give notice to Dubsof in writing by Courier or registered post to Dubsof Limited, 55 Merrion Square South, Dublin 2, Ireland, Attn: Legal, and by email to legal@dubsof.com. All notices shall be deemed to have been given immediately upon delivery by email; or, if otherwise delivered, upon the earlier of receipt or two (2) business days after being deposited in the post or with a Courier as permitted above.
10.6. Governing Law, Jurisdiction, Venue. This MSA, and any non-contractual obligations arising out of or in connection with it, will be governed by the laws of Ireland, without reference to conflict of laws principles. Any disputes under this MSA shall be resolved in the courts of Ireland. The Parties hereby expressly agree to submit to the exclusive jurisdiction of the courts of Ireland for the purpose of resolving any dispute relating to this MSA.
10.7. Export Compliance. The Services and other software or components of the Services that Dubsof may provide or make available to Customer are subject to export control and economic sanctions laws, including those of the European Union and Ireland and, where applicable, those of the United States as administered and enforced by the Office of Foreign Assets Control of the United States Department of the Treasury. Customer will not access or use the Services if Customer or any Authorised Users are located in any jurisdiction in which the provision of the Services, software, or other components is prohibited under EU, U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Customer will not provide access to the Services to any government, entity, or individual located in any Prohibited Jurisdiction. Customer represents and warrants that (a) it is not named on any EU, U.S. or other applicable government list of persons or entities subject to sanctions or prohibited from receiving exports; (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) it will not permit any individuals under its control to access or use the Services in violation of any EU, U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) it will comply with all applicable laws regarding the transmission of technical data exported from the jurisdictions in which Dubsof operates and the countries in which it and Authorised Users are located.
10.8. Anti-Corruption. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Dubsof’s employees or agents in connection with this MSA. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly give notice to Dubsof.
10.9. Publicity and Marketing. Dubsof may use Customer’s name, logo, and trademarks to identify Customer as a customer of Dubsof on Dubsof’s website and other marketing materials.
10.10. Amendments. No modification or amendment of this MSA shall be valid unless made in writing and signed by authorised representatives of both Parties.
10.11. Third Party Products and Services.
10.11.1. Third Party Products. Customer may enable integrations between the Services and third-party products, applications, and services (collectively, “Third Party Products”). Customer’s use of such Third Party Products will be subject to the privacy policies and terms and conditions of such third party providers. Customer acknowledges and agrees that Dubsof makes no representations, warranties or covenants regarding such Third Party Products. Customer hereby waives any claim against Dubsof with respect to Customer’s enablement of, access to or use of such Third Party Products in connection with the Services.
10.11.2. Third Party Services. If an Order Form contemplates Customer obtaining services from a third party (e.g., payment processing or banking services provided by a regulated third party) (collectively, “Third Party Services”), Customer acknowledges and agrees that such Third Party Services will be performed by an independent third party and not by Dubsof. Customer may be required to enter into an engagement letter or separate agreement with such third party in connection with such Third Party Services prior to the provision thereof which shall govern Customer’s receipt of such Third Party Services. Dubsof will not be a party to such engagement letter or separate agreement and bears no responsibility for the quality, accuracy, or completeness of the Third Party Services. Customer acknowledges and agrees that Dubsof makes no representations, warranties or covenants with respect to such Third Party Services.
10.12. Force Majeure. Except with respect to Customer’s payment obligations, neither Party will be liable for, or considered in breach or default under this MSA or any Order Form as a result of, any cause or condition beyond such Party’s reasonable control.
10.13. Waiver. Neither Party’s failure to enforce at any time any provision of this MSA constitutes a waiver of that provision or of any other provision of this MSA.