These Tealium Subscription Terms and Conditions (the “Terms and Conditions”) form part of the Master Services Agreement (or “MSA”) by and between Tealium Inc., (“Tealium”) and Customer (as identified in the Service Order referencing these Terms and Conditions). These Terms and Conditions will apply to Customer’s use of the Services (as such terms are defined below) and to all Service Orders (as such term is defined below) that are entered into by Tealium and Customer. The specific Services that Customer is entitled to receive and the Service Term during which the Customer is entitled to receive such Services are all as identified in the Service Orders. To the extent there is any conflict or inconsistency between the terms of a Service Order and other terms of this MSA, the terms of the Service Order will control solely with respect to such conflict or inconsistency.
- “Additional Usage Fee” means the fee or fees identified on the applicable Service Orders that will apply if Customer’s use of the Services exceeds the Authorized Usage Level.
- “AudienceStream Connector” means an optional Tealium provided feature within the AudienceStream service enabling Customer to transmit designated AudienceStream provided data to a selected recipient.
- “Authorized Domain” means a domain owned or administered by Customer.
- “Authorized Usage Level” means the maximum number of Sessions or Events or other usage units (as specified on the applicable Service Order) that can be initiated using the Services without incurring an Additional Usage Fee.
- “Confidential Information” means any information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within ten (10) business days of disclosure, reduced to writing and marked “confidential” and information which is not marked as “confidential” which should, under the circumstances, be understood to be confidential by a person exercising reasonable business judgment. Without limiting the foregoing, Tealium Technology will be deemed to be the Confidential Information of Tealium.
- “Event” means any call made to Tealium’s data collection servers or any row of data uploaded to Tealium by or on behalf of Customer using Tealium’s omnichannel capability.
- “Highly Sensitive Data” means personal information whose unauthorized disclosure or use could reasonably entail enhanced potential risk for a data subject, including but not limited to government issued identification numbers such as national insurance numbers, passport numbers, driver’s license numbers, or similar identifier, or credit or debit card numbers, medical information, and/or financial or medical account authentication data, such as passwords or PINs.
- “Pages” means web or mobile pages on a Customer site or mobile application to which the Code has been added.
- “Services” means any and all services, including use of the Code, purchased by Customer and provided by Tealium under this MSA in accordance with the Service Order(s).
- “Service Order” means a service order, including any attachments attached hereto, signed by Tealium and Customer, which sets forth the Services to be provided by Tealium, the schedule, the payment terms, and other items covered by this MSA. The initial Service Order is the document to which these Terms and Conditions are attached. Subsequent Service Orders will incorporate these Terms and Conditions by reference.
- “Session” means a discrete visit to an Authorized Domain by a Visitor where the Visitor does not leave the Authorized Domain and no more than thirty (30) minutes of inactivity between two (2) consecutive Visitor actions on the Authorized Domain occurs.
- “Technology” means any proprietary technology, including internet design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects, and documentation (both printed and electronic), know-how, trade secrets, and any related intellectual property rights throughout the world and any derivatives, improvements, enhancements, or extensions of such technology conceived, reduced to practice, or developed during the term of this MSA by the owner of such technology.
- “Visitor” means an individual who accesses Pages on which the Services are implemented.
- “Visitor Profile Data” means Tealium provided non-personally identifiable data concerning Visitors.
- “Visitor Profile Term” means the trailing period of time in which Visitor must visit Pages in order to be included in a given set of Visitor Profile Data. If a specific Visitor Profile Term is not defined on a given Service Order, the applicable Visitor Profile Term will be defined to be the three (3) month period immediately preceding the time of measurement .
Services and Service Levels; Customer Assistance
- Services and Service Levels. During each applicable Service Term (as such term may defined in one or more Service Orders executed by the Parties), Tealium will provide the Services to Customer. Each Service Order specifies an Authorized Usage Level. Customer will at all times ensure that either (a) its use of the Services does not exceed its Authorized Usage Level or (b) if its use of the Services exceeds the Authorized Usage Level, it will pay the Additional Usage Fee invoiced by Tealium according to the terms of the applicable Service Order and Section 4 below. Subject to all terms, conditions, and restrictions of the MSA (including but not limited to the Authorized Usage Level limitation set forth above), during the Service Term, Customer is authorized to use the Services on all Authorized Domains. Each Service Order will become part of this MSA upon execution by the Parties. Tealium will use commercially reasonable efforts to provide the Services in substantial accordance with the service levels set forth in the service level agreement attached hereto as Attachment A (the “SLA”). Except as otherwise provided in this MSA, the remedies set forth in the SLA will be Tealium’s sole liability, and Customer’s sole and exclusive remedy, for any failure of Tealium to provide the Services in substantial accordance with the SLA.
- Customer Assistance. If any job requires that any aspect of the Services, such as Code implementation, be performed on Customer’s premises, Customer will supply Tealium personnel with such information, resources, and assistance as Tealium may reasonably request. Customer acknowledges and agrees that Tealium’s ability to successfully provide the Services in a timely manner is contingent upon its timely receipt from Customer of such information, resources and assistance as may be reasonably requested by Tealium. Tealium will have no liability for deficiencies or delays in the Services resulting from the acts or omissions of Customer, its agents, or employees or performance of the Services in accordance with Customer’s instructions. Without limiting the foregoing, Customer acknowledges and agrees that if Tealium is unable to deploy all of the Services specified in the Service Order as a result of delay attributable to Customer, then all set-up fees specified in the Service Order will be deemed earned by Tealium and payable by Customer, notwithstanding such delay in deployment .
Customer will pay the fees in the amounts and at the times stated in each Service Order and further agrees to pay undisputed invoice(s) in full within thirty (30) days after receipt thereof. Any payment not received when due will accrue interest on the outstanding amount at a rate of one percent (1%) per month or the highest rate allowed by applicable law, whichever is lower. Customer will pay to Tealium all expenses incurred by Tealium in exercising its rights to payments under this MSA, including, but not limited to, reasonable attorneys’ fees and the fees of any collection agency retained by Tealium. All sums payable under this MSA are exclusive of: (a) VAT or any relevant local sales taxes; (b) income taxes assessed by any governmental agencies, including, but not limited to withholdings and royalties; and (c) other taxes and similar fees imposed on the delivery of Services, (collectively “Taxes”). Customer will be responsible for the payment of all Taxes except for taxes on Tealium’s US income. Except as expressly set forth in this MSA, all fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided by Tealium.
Intellectual Property Ownership
Tealium, or its licensors, will, at all times, retain all right, title and interest in and to: (a) all Technology that Tealium makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Services; and (b) all worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications and other proprietary rights related to the Tealium Technology. All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services will be owned by Tealium. Neither this MSA nor its performance transfers from Tealium to Customer any Tealium Technology. Neither this MSA nor its performance transfers from Customer to Tealium any Customer Technology, and all right, title, and interest in and to Customer Technology will remain solely with Customer. For the term of this MSA, Tealium grants Customer a limited, non-exclusive, non-transferable (with no right to sublicense) right and license to copy the Code only for insertion in Pages for use in connection with the Services. Tealium does not grant any other rights to the Code. Tealium reserves all rights not expressly granted under this MSA, and there are no implied rights granted by Tealium hereunder, whether by estoppel or otherwise.
Customer will not do or attempt to do, or permit any third party to do or attempt to do, any of the following: (a) make the Services, including its content or documentation, or any portion thereof available for use or access to or by any third party; (b) modify, reverse engineer, disassemble, decompile, reproduce or create derivative works from or in respect of the Services, Tealium Technology, or any component thereof (c) use or access the Services or any part thereof in order to (i) develop a competitive or similar product or service or (ii) otherwise copy any ideas, features, functions or graphics of the Services, or the underlying software; (d) interfere with or disrupt or attempt to interfere with or disrupt the integrity or the performance of the Services or any information or materials therein; and (e) gain or provide unauthorized access to the Services or its related systems or networks. Customer will use the Services only for its own internal business operations and not for the operation of a service bureau.
- Obligations. Each party agrees: that it will (a) hold the other party’s Confidential Information in confidence using the same standard of care as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; (b) not disclose the Confidential Information of the other to any third party without the other’s prior written consent, except as expressly permitted under this MSA; (c) limit access to the other’s Confidential Information to those of its employees or agents having a need to know who are bound by confidentiality obligations at least as restrictive as those set forth herein; and (d) use the other party’s Confidential Information solely to perform its obligations or receive its benefits under this MSA. Notwithstanding the foregoing, either party may make disclosures as required or requested by a court of law or any governmental entity or agency, including but not limited to disclosures required by the Securities and Exchange Commission of the United States or any similar authority in any other country, provided that, to the extent permitted under applicable law, such party provides the other with reasonable prior notice to enable such party to seek confidential treatment of such information; and either party may disclose the terms and conditions of this MSA solely to potential investors, acquisition partners and its legal counsel and accountants in connection with a proposed financing or acquisition, provided that each such third party is bound by confidentiality obligations at least as restrictive as those set forth herein. The obligations set forth in this Section 7 will apply during the Term set forth in Section 10.1 and will continue for a period that will end five (5) years after the expiration or termination of this MSA.
- Exclusions. The restrictions on the use and disclosure of Confidential Information will not apply to any Confidential Information, or portion thereof, which (a) is or becomes publicly known through no act or omission of the receiving party; (b) is lawfully received from a third party without restriction on disclosure; (c) is already known by the receiving party at the time it is disclosed by the disclosing party, as shown by the receiving party’s written records; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s written records. This Section 7 will not preclude a receiving party from using any of its general knowledge, skills and experience, as well as any ideas, concepts, know-how and techniques developed as part of its ordinary and customary business, provided such use is without reference to or use of the disclosing party’s Confidential Information.
- Injunctive Relief. Each party acknowledges that a breach or threatened breach of this Section 8 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party will have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 7 by the other party or any of its employees or agents. Upon termination of this MSA, each party will promptly either return or destroy all Confidential Information of the other party .
Warranties and Representations; Disclaimer
- Warranties. Each party warrants that it has the right and power to enter into this MSA and an authorized representative has executed this MSA. Tealium warrants that the Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards. Customer must notify Tealium of any warranty deficiencies within sixty (60) days after performance of the relevant Services in order to receive warranty remedies. Regarding any Services provided by Tealium that are advisory, no specific result is assured or warranted by Tealium.
- Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 8.1 ABOVE, THE SERVICES ARE PROVIDED SOLELY ON AN “AS IS,” AND “AS AVAILABLE BASIS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TEALIUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE; NONINFRINGEMENT; AND THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE .
Limitation of Liability
(a) EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4, NEITHER PARTY’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF THIS MSA OR ITS PERFORMANCE HEREUNDER, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, WILL EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO TEALIUM UNDER THIS MSA DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.
(b) NOTWITHSTANDING ANY PROVISION OF THIS MSA TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, DEPRECIATION OF STOCK PRICE, BUSINESS INTERRUPTION, OR OTHER SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THE SERVICES, OR OTHERWISE UNDER THIS MSA, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
Term and Termination
- Term. The term of this MSA (the “Term”) begins on the Effective Date and continues until the expiration of all the service terms of all Service Orders unless earlier terminated in accordance with this MSA.
- Service Terms. Each Service Order will provide for a service term. At the end of the service term of any Service Order, unless either party gives written notice to the other party of its intention not to renew at least ninety (90) days before the end of a service term, the term of such Service Order will automatically renew for successive twelve (12) month periods. Termination of one Service Order will not affect the term of any other Service Order.
- Termination for Breach. Either party may also terminate this MSA upon written notice to the other party, for any material breach by the other party if such breach is not cured within thirty (30) days following written notice of such breach from the non-breaching party. Upon termination by Customer for Tealium’s breach, Tealium will refund any unearned portion of prepaid usage fees. If Tealium terminates this MSA for Customer’s breach, Customer will pay any (a) outstanding balance for Services rendered through the date of termination and (b) other unpaid payment obligations due for the remainder of then current Service Term in the Service Order, which will be immediately due and payable in full. If Customer is late in paying fees that are due, Tealium may, without terminating this MSA, deny or otherwise suspend Services until Customer makes the overdue payments.
- Effect of Termination. Upon expiration or termination of this MSA, Tealium will stop providing Services, all licenses granted by Tealium hereunder will terminate, Customer will cease all use of the Services, and Customer will remove all copies of Code from its Pages. Any payment obligations of Customer, and the provisions of Sections 2, 4, 5, 6, 7, 8.2, 9, 10.4, and Sections 11-22 inclusive will survive termination or expiration of this MSA .
Customer represents and warrants that it will not transmit to Tealium nor require Tealium to process any Highly Sensitive Data. In the event that any personal data is transferred under this MSA, each party will comply with all applicable laws and regulations, or any equivalent, applicable legislation. Customer hereby warrants and undertakes that it has obtained or will obtain the consent of any individual whose personal data is to be processed pursuant to this MSA, prior to transfer to Tealium, if such consent is required by applicable regulations or law. Customer agrees that, at its own expense, it will defend and indemnify Tealium against all costs, claims, damages, or expenses incurred by Tealium or for which Tealium may become liable due to any failure by Customer or its employees or agents to comply with any of its obligations under this Section 11.
All notices permitted or required under this MSA will be in writing, and will be deemed effective when: (a) delivered by personal delivery, (b) confirmed by the recipient, for notices delivered by electronic mail or facsimile transmission, or (c) three days after being sent by certified or registered mail (return receipt requested) or overnight courier. Notices will be sent to the addresses set forth in this MSA or such other address as either party may specify in writing.
During the Term, Customer agrees that Tealium may refer to this MSA in a press release and use the Customer’s logo on its web site for the limited purpose of identifying Customer as a user of Services; provided that (a) Tealium will comply with any and all guidance Customer provides concerning such use of Customer’s logo and (b) Tealium will secure Customer’s prior written approval before using Customer’s logo in any other manner.
Law and Venue
This MSA will be construed and enforced in accordance with the laws of the State of California without regard to its conflict of laws principles; provided, however, that the Uniform Computer Information Transactions Act will not apply even if adopted as part of the laws of the State of California. The Parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this MSA. Except for any action for injunctive or other equitable relief (which may be brought at any time in any court of competent jurisdiction), exclusive venue for any dispute will be San Diego County, California, and each party agrees to personal jurisdiction in such venue, and waives any objection thereto.
If any term or provision of this MSA is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be construed to effectuate to the greatest possible extent the Parties’ expressed intent, and the remainder of this MSA will not be affected and will remain valid and enforceable. The failure of either party to exercise or enforce any right or provision of this MSA will not constitute a waiver of such right or provision, and any waiver granted by a party in one instance does not constitute a waiver for other instances.
The relationship between the Parties is solely that of independent contractors, and neither party will have any authority to bind or commit the other. Nothing in this MSA will be deemed or construed to create a joint venture, partnership, employment, or agency relationship between the Parties for any purpose.
Neither this MSA nor any of the rights or duties arising out of this MSA may be assigned by Tealium or Customer without the prior written consent of the other Party, such consent not to be unreasonably withheld; except that Tealium may, without such consent, assign this MSA and its rights and duties arising out of this MSA to the transferee, or other successor in interest, in connection with the sale or transfer of all or substantially all of its assets or in connection with any merger, acquisition, re-organization or consolidation. Any attempted assignment in violation of the foregoing will be void.
In the event legal action of any kind is instituted arising out of the MSA, the substantially prevailing party will be entitled to recover reasonable attorney’s fees from the non-prevailing party.
The headings used for the sections of this MSA are for information purposes and convenience only and in no way define, limit, construe or describe the scope or extent of the sections.
This MSA constitutes the complete and entire agreement between the Parties with regard to the subject matter hereof, and supersedes and replaces any prior or contemporaneous agreements between the Parties regarding such subject matter. No oral or written representation that is not expressly contained in this MSA is binding on Tealium or Customer. No amendment to this MSA or any Service Order will be binding on either party unless in writing and signed by both Parties.
Third Party Beneficiaries
This MSA does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties.
Neither party will be liable for any breach of the MSA, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond such party’s reasonable control (“Force Majeure”), including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, acts of civil or military authorities, or acts of God.
Service Level Agreement
1. Service Commitment.
Tealium, through its agreement with Delivery Network will use commercially reasonable efforts to make Delivery Network servers available with a Monthly Uptime Percentage (defined below) of at least 99.9% during any month (the “Service Commitment”). In the event Delivery Network does not meet the Service Commitment, Customer will be eligible to receive a Service Credit as described below.
(a) “Monthly Uptime Percentage” means the percentage of available time within a given calendar month associated with Delivery Network serving of Libraries.
(b) “Monthly Subscription Amount” means the contracted amount for the Services for the Service Term, divided by the number of months in the Service Term (excluding fees for implementation, managed, and professional services and Additional Usage Fees).
(b) A “Service Credit” is a credit, calculated as set forth below, that Tealium may credit towards future invoices to Customer.
3. Service Credits.
Service Credits are calculated as a percentage of the Monthly Subscription Amount for the month in which the Service Commitment was not met in accordance with the schedule below. Tealium will apply any Service Credits only against future payments. If Customer has prepaid in full for all Services under the Agreement, Customer will be entitled to a refund of the Service Credit amount. Customer’s sole and exclusive remedy for any unavailability or non-performance of Delivery Network or other failure by Delivery Network to provide the Service Commitment is the receipt of a Service Credit in accordance with the terms of this SLA. Service Credits may not be transferred or applied to any other Customer account.
- If the Monthly Uptime Percentage is less than 99.9% but equal to or greater than 99%, then the Service Credit will equal 10% of the Monthly Subscription Amount.
- If the Monthly Uptime Percentage is less than 99%, then the Service Credit will equal 25% of the Monthly Subscription Amount
4. Credit Request and Payment Procedures.
To receive a Service Credit, Customer must submit a request by sending an e-mail message to firstname.lastname@example.org. To be eligible, the credit request must (a) include the list of Libraries that did not meet Service Commitment; (b) include, in the body of the e-mail, the dates and times of each incident that Customer claims to have experienced; (c) include Customer’s server request logs that document and corroborate Customer’s claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks); and (d) be received by Tealium within ten (10) business days after the end of the month in which the Service Commitment was not met.
5. SLA Exclusions.
The Service Commitment does not apply to any unavailability, suspension or termination of Customer’s account, or any other Delivery Network performance issues: (a) caused by factors outside of Tealium’s reasonable control, including any Force Majeure event or Internet access or related problems beyond the demarcation point of Delivery Network; (b) that result from any actions or inactions of Customer or any third party; (c) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Tealium’s direct control); or (d) arising from the suspension and termination of Customer’s right to use Delivery Network in accordance with the MSA.