In consideration of the mutual promises and obligations set out in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, and intending to be legally bound, the parties agree as follows:
During the term of this Agreement, subject to the terms of this Agreement and payment of the applicable fees by Customer under this Agreement, PageDNA will provide Customer the following services (together, the “PageDNA Services”):
1.1 Access to PageDNA Automation Platform:
- PageDNA will provide to Customer access to PageDNA’s online storefront application accessible via the URL http://www.PageDNA.com/hub or http://www.nationsprint.com/hub or .fastsigns.com/, any successor site designated by PageDNA from time to time or at another URL as mutually agreed upon in writing by the parties, in the hosted environment under PageDNA’s control on which the application is run (“PageDNA Automation Platform”), solely for Customer’s own internal business purposes and not for commercial purposes or for producing products, services or offerings for resale to third parties.
- Access to the PageDNA Automation Platform under these terms is limited to Franchise Owners who are currently in good standing with FII. Customer will use the PageDNA Automation Platform only for lawful purposes and only in accordance with this Agreement. Customer will comply with all applicable laws and regulations governing Customer’s use of the PageDNA Automation Platform.
- As part of the PageDNA Automation Platform, PageDNA will store any information, data, graphics, fonts, text, and other materials that are (together, the “Customer Data”):
- provided to PageDNA by, through or on behalf of Customer, with the request that PageDNA install or use such content on the PageDNA Automation Platform;
- input into or installed on the PageDNA Automation Platform by, through or on behalf of Customer; or
- posted, transmitted, submitted, or generated by the use of the PageDNA Automation Platform by, through or on behalf of Customer.
- Customer acknowledges and agrees that PageDNA can make changes to the PageDNA Automation Platform, but is not obliged to do so. Such changes may include updates, additional functionality, supplements, add-ons, patches, or bug-fixes (“Updates”). Updates may be subject to additional terms and conditions. Once implemented, the Updates form part of the PageDNA Automation Platform. Customer may experience a disruption to the PageDNA Automation Platform when PageDNA makes changes or as a result of Updates. With the exception of emergency work required in order to ensure the stable and secure delivery of the PageDNA Automation Platform or fault restoration activity, PageDNA will use reasonable efforts to perform changes and Updates during scheduled maintenance times listed https://www.PageDNA.com/status/ or such other website notified by PageDNA from time to time (“Scheduled Maintenance”) and provide Customer with reasonable notice in the event any Update will be materially detrimental to Customer.
1.2 Professional Services:
Customer may engage with PageDNA to perform professional services to set up online ordering storefronts and catalog items via the applicable online form available on PageDNA’s website (“Professional Services”) If Customer engages PageDNA to perform professional services, it shall be done in accordance with this Agreement between PageDNA and Customer requesting such services and directly billed to that Customer. Customer may need to provide PageDNA with access to Customer’s relevant artwork files before PageDNA can provide Customer with a quote for such Professional Services. The Professional Services will be provided by PageDNA in accordance with this Agreement and on terms (including pricing) as set forth herein, specified in writing and signed by both parties (“PS Order”). The Professional services will be provided on a time-and-materials basis at rates listed in Customer’s PS Order (or if no rates are listed, then in Appendix A). PageDNA will provide Customer with email and/or telephone support for Professional Services tasks from 6:00 AM to 5:00 PM Pacific time (9:00 AM to 8:00 PM EST) Monday through Friday except during PageDNA Holidays
2. CUSTOMER RESPONSIBILITIES
2.1 Customer will not and will ensure that no third party within Customer’s reasonable control will:
- cause or permit the reverse engineering, disassembly, or de-compilation of the PageDNA Automation Platform;
- gain or attempt to gain unauthorized access to any portion of the PageDNA Automation Platform or its related systems or networks for use in a manner that would exceed the rights granted in Section 1, or facilitate or allow any such unauthorized access for any third party;
- access or attempt to obtain access of any other of PageDNA’s customers’ data;
- create any derivative works of or modify the PageDNA Automation Platform;
- use the PageDNA Automation Platform to gather information on PageDNA’s systems, processes or customers; or
- otherwise misuse the PageDNA Automation Platform.
3.1 Customer pays FII directly for platform fees. PageDNA will bill Customer directly for any contracted professional services.
3.2 Additional fees may be payable by Customer for any Updates to the PageDNA Automation Platform authorized by Customer in a Statement of Work signed by both Parties.
4. OWNERSHIP, CUSTOMER INDEMNITIES, AND CONFIDENTIALITY
4.1 PageDNA Services: Between PageDNA and Customer, PageDNA retains all rights, title, and interest in and to the PageDNA Services (which include without limitation all software (in source and object forms), tools, applications, hardware designs, algorithms, user interface designs, architecture, class libraries, objects, documentation, network designs, know-how, and trade secrets in the PageDNA Services), any Updates or modifications, enhancements, upgrades, or improvements to, or derivative works of, the PageDNA Services, any materials and work product developed by PageDNA for Customer or Franchisee in connection with this Agreement, including the Professional Services, and any intellectual property rights throughout the world in any of the foregoing. Except for the right to access the PageDNA Services expressly specified in Section 1, this Agreement does not grant any right, license, title, or interest in or to the PageDNA Services or any PageDNA trademark, copyright, trade name, or service mark to Customer.
4.2 Professional Services Work Product: Subject to Customer’s payment of the fees applicable to the Professional Services, PageDNA hereby grants Customer a limited, non-sublicensable, non-transferable, royalty-free, revocable and non-exclusive license to use any materials and work product developed by PageDNA specifically for Customer and described in the PS Order for the sole purpose of Customer accessing and using the PageDNA Automation Platform to which such materials and work products relate in accordance with this Agreement for the term of this Agreement.
4.3 Customer Data
- As between PageDNA and Customer, Customer retains ownership of all Customer Data and hereby grants and agrees to grant to PageDNA a non-exclusive, royalty-free, full paid up, transferable, sublicensable right to use the Customer Data during the term of this Agreement for the purpose of delivering the PageDNA Services to Customer and fulfilling its other obligations under this Agreement.
- Customer represents and warrants to PageDNA that: (a) the Customer Data will not infringe or violate the rights of any third party including, but not limited to, intellectual property, privacy or publicity rights of others; (b) all transmission of Customer Data to the PageDNA Automation Platform or otherwise to PageDNA will be free of any threats, viruses, trojan horses, time bombs, malicious computer instructions, malware, intentional devices, or techniques that can or were designed to threaten, infect, attack, assault, vandalize, defraud, disrupt, damage, or shut down a computer system or any component thereof, including its security or user data, or other disabling devices.
- Customer agrees to indemnify and hold PageDNA and its directors, affiliates, officers, agents, contractors, and employees harmless, from and against any losses, claims, damages, or similar in connection with the Customer Data or Customer’s breach of this Agreement, including without limitation, in connection with any third party claim made against such PageDNA indemnified persons in connection with the Customer Data, including without limitation any third party claim alleging that the Customer Data or PageDNA’s use of the Customer Data infringes or violates the intellectual property or other proprietary rights of that third party.
4.4 Confidentiality: Each party acknowledges that it will have access to Confidential Information of the other party, where “Confidential Information” means information of either party that can reasonably be considered as being confidential in nature, including without limitation information concerning that party’s business, plans, customers, technology, and products (including the pricing of products), regardless of whether the information is in tangible or intangible form and regardless of whether the information is designated as being confidential. The parties agree, during the term of this Agreement and for a period of five (5) years thereafter, to hold each other’s Confidential Information in confidence, not to make each other’s Confidential Information available in any form to any third party other than those of its employees, permitted contractors, and professional advisers on a “need to know” basis and under substantially the same nondisclosure obligations. Each party agrees to take commercially reasonable steps, which are at least as stringent as it takes to protect its own Confidential Information, to ensure that Confidential Information is not disclosed or distributed in breach of this Section 7.4. Notwithstanding the foregoing, neither party will be required to maintain in confidence any of the following information: (i) information that, at the time of disclosure to the receiving party, is in the public domain; (ii) information that, after disclosure, becomes part of the public domain, except by breach of this Agreement; (iii) information that was in the receiving party’s possession at the time of disclosure by the disclosing party, and that was not acquired, directly or indirectly, from the disclosing party; (iv) information that the receiving party can demonstrate resulted from its own research and development, independent of disclosure from the disclosing party; (v) information that the receiving party receives from third parties, provided such information was not obtained by such third parties from the disclosing party on a confidential basis; or (vi) information that is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
5. PAGEDNA INDEMNITY
5.1 Subject to Sections 8.3, 8.4 and 8.5, PageDNA agrees to defend and hold Customer harmless from and against any losses, damages or claims, including reasonable legal fees and expenses, arising out of any third party claim made against Customer alleging that the PageDNA Automation Platform infringes such third party’s intellectual property or other proprietary rights (“Third Party Claim”).
5.2 If the use of the PageDNA Automation Platform infringes, or in PageDNA’s determination, may be likely to infringe, a third party’s intellectual property or other proprietary rights, PageDNA may, in its sole discretion and at its option and expense (i) obtain for Customer the right to use the allegedly infringing item(s), (ii) substitute a functionally equivalent, non-infringing replacement for such item, (iii) modify such item to make it non-infringing, or, if (i) – (iii) are not commercially feasible, (iv) terminate the Agreement without further liability to Customer.
5.3 Notwithstanding anything in this Agreement to the contrary, PageDNA will have no obligation or liability to Customer or any third party for any Third-Party Claim directly or indirectly arising from:
- Customer’s breach of Section 4.2;
- Customer’s failure to use any Updates made available by or on behalf of PageDNA to Customer, which use would avoid or mitigate such Third-Party Claim; or
- use of the PageDNA Automation Platform in combination with any computer program, product, material, service, or information not provided by PageDNA for such use.
5.4 The indemnification obligation under Section 8.1 only applies if Customer provides PageDNA with:
- prompt written notice of the relevant Third-Party Claim, such notice not to exceed fifteen (15) calendar days;
- all information within its control reasonably necessary for PageDNA to conduct a defense or settlement negotiations; and
- sole and absolute control of defense and settlement negotiations.
5.5 THE REMEDIES IN THIS SECTION 8 REPRESENTS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PageDNA’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY THIRD-PARTY CLAIM.
6. WARRANTIES; LIMITATION OF LIABILITY
6.1 Warranty of Functionality. PageDNA warrants to Customer that the Service substantially conforms and will conform to the functional specifications set forth at specified herein or in a statement work associated herewith, applicable to the version of the Service licensed by Customer, as updated from time to time (the “Functional Specifications”). PageDNA does not warrant that the Service will be error-free. Upon notice from Customer of PageDNA’s breach of this warranty, PageDNA shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the Functional Specifications and if PageDNA is unable to restore such functionality Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of the license fees paid for under the Agreement for its use of the Service but which use has not yet been furnished by PageDNA as of the date of such termination. PageDNA shall have no obligation with respect to a warranty claim unless notified by Customer of such claim within sixty (60) days of the date that Customer first becomes aware of such material functionality problem.
6.2 Security, Data Maintenance and Backup Warranty. PageDNA warrants during the Term of this Agreement that PageDNA will develop and maintain appropriate security procedures, policies and internal controls against the destruction, loss or alteration of Customer Data in the possession of PageDNA, which shall include: (a) user identification and access controls designed to limit access to Customer Data and Customer Confidential Information to authorized users; (b) external connections to the World Wide Web will have appropriate security controls including industry standard intrusion detection that will detect any unauthorized activity prior to entering the firewall maintained by PageDNA; (c) industry standard firewalls regulating all data entering PageDNA’s internal data network from any external source which will enforce secure connections between internal and external systems and will permit only specific types of data to pass through and penetration testing of such firewalls; (d) industry standard encryption techniques will be used when Customer Data and electronic forms of Customer’s Confidential Information is transmitted by PageDNA on behalf of Customer and to and from the Service; and
(e) a disaster recovery plan designed to maintain Customer’s access to the Service in the event of a disaster that is expected to result in an interruption in Service or related support services for a period of more than 24 hours, and to prevent the unintended destruction of Customer Data or Customer Confidential Information, which plan shall require all Customer Data to be stored on redundant storage systems through network attached storage and offsite backups that are located at a sufficient distance from each other to minimize the risk that a disaster would affect all sites.
To the extent within the control of PageDNA or any of its third party providers, PageDNA shall be responsible for any and all unauthorized access or loss attributable to the transmission of Customer Data to and from the Service and Customer Data at rest, and will use commercially reasonable efforts to mitigate any unauthorized access or loss of Customer Data outside of PageDNA’s control. In the event of any loss of Customer Data, PageDNA will use commercially reasonable efforts to correct the Customer Data or restore the Customer Data within two (2) days. PageDNA warrants that its operating systems, databases and webservers do not share the same password, and access is restricted to a controlled list of individuals whose activities are restricted, logged and monitored. In the event of any actual, or reasonably suspected unauthorized use or disclosure of any Customer Data transmitted or stored within the Service, including any actual or reasonably suspected violation of any data protection law or PCI Requirements (each a “Security Breach”) PageDNA shall: (a) notify Customer as soon as possible but not more than twenty-four (24) hours after discovery of a Security Breach; (b) assist Customer in investigating, remedying and taking any other reasonable action regarding any Security Breach and any dispute, inquiry or claim that concerns the Security Breach; and (c) take commercially reasonable actions as necessary to prevent future Security Breaches. If the Security
Breach results from PageDNA’s negligence or breach of this Agreement, PageDNA also agrees to bear any direct out-of-pocket expenses Customer may incur as a result of the Security Breach, including without limitation, the cost of notifying those affected by the Security Breach, if Customer reasonably elects or is required to do so. Customer shall retain the sole discretion to manage any media or other communications to third parties concerning any such Security Breach as it relates to Customer. Customer shall retain the sole discretion to manage any media or other communications to third parties concerning any such Security Breach as it relates to Customer.
6.3 Other Warranties. PageDNA warrants to use commercially reasonable efforts to ensure that the Service shall be free of viruses, Trojan horses, worms, spyware, or other malicious code or components. PageDNA warrants that the provision of the Service shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions, including without limitation those related to privacy, data protection, electronic communications, and anti- spam legislation, except to the extent any noncompliance could not be reasonably expected to be materially adverse to Customer. PageDNA has obtained, and will obtain, all rights and licenses required from third parties to operate, use, license and provide the Service, and otherwise perform its obligations under this Agreement. PageDNA covenants that PageDNA will maintain in full force and effect the rights and licenses described in this paragraph for the entire Term. The Service and Customer’s use thereof do not and will not infringe or misappropriate the intellectual property rights of any third party.
6.4 Data Processing Warranty. PageDNA warrants the accuracy and completeness of information, materials or data that PageDNA transmits in all material respects. PageDNA will promptly correct any errors or inaccuracies attributable to PageDNA in Customer Data or reports discovered by Customer and identified to PageDNA or discovered by PageDNA. Such corrections will be provided at no charge to Customer.
6.5 PCI Warranty. PageDNA represents and warrants that the Service shall at all times fully comply with the Payment Card Industry Data Security Standard, the requirements of the Visa Cardholder Information Security Program that are set forth in the Visa Operating Regulations or that are otherwise issued by Visa U.S.A., Inc., or its successors, the MasterCard Safe Data Protection Program issued by MasterCard Worldwide, or its successors, and all other applicable industry standards having to do with the protection or security of Cardholder Data, as such standards may be modified from time to time (the “PCI Requirements”). For purposes of this Section, “Cardholder Data” means: (a) cardholder name, (b) account number, (c) expiration date,
(d) authorization and service codes, (e) card validation values and codes, (f) personal identification numbers, (g) passwords, (h) other magnetic stripe data, and (i) any other personal information of a cardholder.
6.6 Warranty for Provision of Service. PageDNA warrants that the Service will be developed and maintained in a professional and workmanlike manner.
6.7 Prohibition Against Abandonment of Service. PageDNA shall not Abandon the Service during the Term of this Agreement. For the purposes of this Agreement, “Abandon,” or “Abandonment” means PageDNA’s willful failure to maintain and support the Service, which failure results in a material adverse effect on Customer’s or the Customers’ ability to timely and properly use the Service. For the avoidance of doubt, an Abandonment will not have occurred if
6.8 DISCLAIMER OF WARRANTIES: EXCEPT FOR ANY EXPRESS WARRANTIES PROVIDED ELSEWHERE HEREIN, THE PageDNA SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND PageDNA DOES NOT WARRANT THAT THE PageDNA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. PageDNA HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PageDNA SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE (NOT EXPRESSLY CONTEMPLATED UNDER SECTION 8), AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
6.9 LIMITATION OF LIABILITY: EXCEPT WITH RESPECT TO PageDNA’S LIABILITY UNDER THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, IN NO EVENT WILL PageDNA BE LIABLE TO THE CUSTOMER: (1) IN CONNECTION WITH ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOSS OR DAMAGE IN CONNECTION WITH INTERRUPTION OF USE OF THE PageDNA SERVICES OR LOSS OF REVENUE, PROFITS, BUSINESS, OR DATA ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES); OR (2) FOR AN AMOUNT EXCEEDING THE AGGREGATE FEES PAID BY CUSTOMER TO PageDNA UNDER THIS AGREEMENT.