MASTER SERVICE AGREEMENT N

Project:______

This MASTER SERVICE AGREEMENT (the “Agreement”) is made and entered into ___________ day of ______, ______ (the “Effective Date”) between ___________________________ (the “Contractor”), represented by its _________ acting pursuant to _________ and _________, represented by _________ acting pursuant to _________ (the “Customer”). Contractor and Customer are also referred to as “Party” and collectively as “Parties”.

DEFINITIONS

The following words have the meanings set out below:

“Mindbox Service” means Mindbox software and related services, marketing automation and personalization backend for B2C companies. Mindbox Service is provided on a subscription basis, as a Software-as-a-Service.

“Subscription to Mindbox Service” means subscription to Mindbox Service provided to Customer by Contractor.

“Client” means any person whose Personal Data are transferred to Mindbox Service by Customer for the purposes of processing.

“Client information” means any information about potential, current or former Clients, connected to Client’s profile in Mindbox Service with unique identifier.

“Client actions” means information about Client’s tracked actions or outbound interaction from Customer to Client.

“Client segments” means data about relation of particular Client to set of criteria (Segment) set in Mindbox Service.

“SLA” means Service Level Agreement incorporated hereto by reference and published on Contractor’s website. SLA defines the quality metrics of Mindbox Service, for example, time of availability of Mindbox Service and speed of email sending as well as limits of Contractor’s responsibility — maximum amount of Contractor’s responsibility for SLA violation (compensation) and method of its receipt by Customer (discount for Subscription to Mindbox Service).

“Means of communication” means an email in case the emails are sent from the domains specified in the details in Article 12 hereof, as well as services such as Intercom, Basecamp, and others agreed by Parties.

“Mindbox Service Rates” means the rates of the Mindbox Service subscription stated in the Annex № 1 hereto.

“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“Data Subject” means the individual to whom Personal Data relates.

“Data breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

"Controller“means Customer, being the natural or legal person, public authority, agency or other body which, alone or jointly with others, who determines the purposes and means of the processing of Personal Data.

“Processor” means Contractor, being the legal person who processes Personal Data on behalf of Controller.

“Accounting period” means one calendar month.

“Force majeure event” means any act of nature or the elements, terrorism, insurrection, revolution or civil strife, civil war or hostile action, labor strikes, acts of public enemies, laws, rules, and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, material or equipment shortages, or any other causes (except financial) beyond the control of either party.

GENERAL PROVISIONS

Subscription to Mindbox Service is provided in accordance with this Agreement. Through Subscription to Mindbox Service Contractor processes Personal Data of Clients. In terms of General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) (hereinafter — “GDPR”) Contractor is a Processor.
Customer understands and agrees that Mindbox Service processes the Customer’s Client information — citizens of the EU, unless otherwise agreed by the Parties.
Аll intellectual property rights associated with Mindbox Service belong to Contractor or its affiliated and\or subsidiary entities.
Customer uses Mindbox Service on its own to perform the respective activities e.g. to create a segment, to launch a campaign or send emails.
Customer may use Mindbox Service for sending electronic messages to Clients (e.g. sms and emails), including for advertising purposes. The role of Contractor is limited to service provider functions. Due to the nature of Mindbox Service, Contractor is not liable for any negative consequences caused by activities performed by Customer, including (but not limited to) profit loss, personal data complains and issues etc. Contractor provides a tool for Customer to reach its advertising purposes and shall not be considered as an advertiser, or an advertising provider, and etc.
Client information is and shall remain the property of Customer. Each Client has a unique identifier in Mindbox Service. Client information, Client actions and Client segments are available for Customer in Mindbox Service. Customer has the technical opportunity to enrich, alter, delete, upload and download information related to Clients in the Account (as defined below) in Mindbox Service, using web interface or API.
Contractor shall provide Subscription to Mindbox Service on the principle of “as is.” This means that Customer independently determines how to use Mindbox Service and is responsible for the possible consequences of its use. Contractor shall not be liable for any type of losses caused by Customer’s use or inability to use Mindbox Service or its parts/functions, including possible errors or failures.

If the cost of Subscription to Mindbox Service for the last Accounting Period is 1 382 EUR excluding VAT or more, then Contractor provides Customer with a level of Mindbox Service in accordance with SLA published on https://mindbox.net/documents/sla-5-0/ and binding on Parties.
Parties agree that the percentage, speed and quality of delivery of electronic messages depend on circumstances beyond the will of Parties, for example, operational algorithms of email systems spam filters and the peculiarities of communication service providers function.
Сustomer hereby agrees that Contractor is entitled to change the functionality and user interface of Mindbox Service without notifying Customer. The modification of Mindbox Service shall not relieve Contractor from any obligations and liabilities hereunder.
Contractor has a right to involve third parties to Subscription to Mindbox Service provision on its own behalf and at its own expense. Contractor assumes full liability for the actions or omissions of such third parties in relation to this Agreement as if the actions and omissions of such third party are made directly by Contractor.
Contractor executes the following actions within 7 (seven) business days after the receipt of the first advance payment from Customer according to this Agreement:
- Assigns a project manager (hereinafter — “Manager”) and a lead manager (hereinafter — “Lead manager”);
- Creates a Customer’s account (hereinafter — “Account”) in Mindbox Service with relevant access rights. To ensure data safety, only Lead manager has rights to create Account. The identification of Customer is carried out by unique access credentials: login and password (hereinafter — “Access credentials”). Customer is entitled to get extra Access credentials without any limitations. Extra Access credentials may be created by Customer on its own in Account or by Lead manager upon Customer’s request received by Means of communication.
- Sends Customer an email with all the information required for access to Mindbox Service.

Information about Manager and Lead manager including phone number and email is available in Account. In case a new Manager or Lead manager is assigned to Customer, the information in Account changes respectively. These changes have legal effect and don’t require a notification from Contractor or any approval from Customer.

Parties agree that the following representatives of Contractor have an access to Account and Client information: Manager, Lead manager, and customer support specialists. Contractor is entitled to give an access to Account to other responsible officials of Contractor if necessary, for example for error diagnostics.

After receipt of the first advance payment from Customer Contractor is entitled to render the trial period (hereinafter — “Trial period”). Trial period means a free trial offer during which Customer has full access to Mindbox Service, but electronic messages can not actually be sent. During Trial period Customer can explore the functionality of Mindbox Service and can integrate Mindbox Service with required data systems and services.

The maximum duration of Trial period depends on the cost of Service Subscription specified in the invoice for the advance payment based on the rough estimate by the Contractor (hereinafter — “Forecasted cost”):

Forecast cost, EUR excluding VAT	The maximum duration of Trial period, months
1 200 and less	1
1 200 — 2 650	2
2 625 and more	3

The duration of Trial period starts from the date when Contractor receives the advance payment.

Customer can stop the trial period and initiate full use of Mindbox Service through Account in Mindbox Service or by sending a request to Contractor by Means of communication. If Customer doesn’t stop Trial period, Trial period will end automatically after the maximum duration of Trial period. Contractor starts to provide Subscription to Mindbox Service on the first day after Trial period has ended.

SCOPE OF SERVICES
1. Subscription to Mindbox Service includes basic module (hereinafter — “Basic module”), Basic module extensions (hereinafter — “Extensions”), additional modules (hereinafter — “Additional modules”), and additional services (hereinafter — “Additional services”). The complete scope of the modules and services is provided in Mindbox Service Rates. As part of Subscription to the Service, Customer can request Contractor to create an additional project for testing campaign settings and other technical requirements (hereinafter — “Staging project”). The cost of Staging project is calculated according to Mindbox Service Rates. If Customer uses a Staging project, then Customer may test modules that are active on the main project.
2. Customer may activate or deactivate any Additional module on its own in Account or by sending a request to Contractor by Means of communication.
INVOICING AND PAYMENT, TRANSFER AND ACCEPTANCE
1. Customer makes an advance payment in the amount of _________ EUR, excluding VAT, to start the trial period.
2. After the end of Trial period, Customer is obliged to pay for Subscription to Mindbox Service monthly in advance on the basis of received invoices till the 15th day of each Accounting period. The sum of monthly invoice is based on the cost of Subscription to Mindbox Service provided in the previous Accounting period. The advance payment shall provide the positive balance on the Customer’s account required to cover the costs of Subscription to Mindbox Service in the following Accounting period.
  
  In case that the Customer has failed to pay the advance payment for the first Accounting period within 3 (three) months from the date of invoicing, the Contractor is entitled to cancel the invoice for the first Accounting period and revise the conditions for the provision of services by changing Mindbox Service Rates specified in Annex № 1 to the current version located at: www.mindbox.net
3. Contractor is entitled to suspend Subscription to Mindbox Service with a five (5) business days’ prior notice to Customer in case Customer has failed to pay for Subscription to Mindbox Service. The period of time during which Subscription to Mindbox Service was suspended as a result of Customer’s undue performance or nonperformance of its obligations under Agreement shall be still payable according to Agreement as if Subscription to Mindbox Service was provided by Contractor. Only termination of Agreement shall mean complete termination of Subscription to Mindbox Service.
4. All payments are carried out according to Agreement by wire transfer to the Contractor’s bank account.
5. The cost of Subscription to Mindbox Service is calculated each Accounting period according to Mindbox Service Rates. The cost of Subscription to Mindbox Service is stated in the monthly invoice sent to Customer by Contractor not later than five (5) business days after the end of Accounting period ends up.
6. Customer has fifteen (15) business days after the end of Accounting period to notify Contractor in writing of a bona fide dispute asserted in good faith as to one or more of the items of the monthly invoice, otherwise Subscription to Mindbox Service listed in the monthly invoice is considered to be accepted by Customer. Customer agrees that by not sending any notification of a bona fide dispute within the period mentioned in the previous sentence it acknowledges that Subscription to Mindbox Service was duly provided by Contractor and Customer has no claims and complaints concerning the scope and quality of Subscription to Mindbox Service provided in the respective Accounting period.
7. Non-use of Mindbox Service by Customer shall not be construed as a failure to provide Subscription to Mindbox Service by Contractor.
8. If the commencement date of Subscription to Mindbox Service is not the first calendar day of Accounting period, the cost of Subscription to Mindbox Service will be calculated in accordance with the following formula A = B / C * D , where:
  - A is the cost of Subscription to Mindbox Service to be charged;
  - B is the cost of Subscription to Mindbox Service for one full Accounting period;
  - C is the number of calendar days in Accounting period.
  - D is the actual number of calendar days when Subscription to Mindbox Service was provided.
9. Additional modules activated in Accounting period are charged for the same period as Subscription to Mindbox Service, i.e. Subscription to Mindbox Service cost does not depend on the date of activation or deactivation of Additional modules in Accounting period.
10. The Contractor is entitled to change Mindbox Service Rates by sending notification with new Mindbox Service Rates to Customer:
11. Contractor might provide a discount for services in any cases including but not limited stipulated in SLA. The terms of the discount are agreed upon by Means of communication with the subsequent registration in Account without signing additional documents.
DOCUMENTS AND NOTIFICATIONS
1. Parties agree that the exchange of electronic documents and messages through Means of communication is an equivalent to the exchange of documents with handwritten signatures signed by simple electronic signature and has a legal effect.
2. Customer’s instructions sent by e-mail or by messengers are binding for Contractor only if they are addressed at least to two representatives of Contractor.
3. Each Party notifies the other Party about any change of the legal entity details or bank details, within five (5) business days after such change.
4. Each Party notifies the other Party of any requests made by third parties, including claims and claims arising directly or indirectly in relation to Agreement, attaching the copies of the related documents to the notice, within reasonable time enabling the other Party the opportunity for relevant defense. The Party receiving the notice may assist in the preparation of replies to such third party, giving the sender the necessary information within the time specified in such notice.
WARRANTIES AND LIABILITY
1. Customer shall indemnify, defend and hold Contractor including but not limited to its officers, affiliates, directors, agents, employees and its successors and assigns, harmless from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable attorneys’ fees that Contractor may incur or suffer, that arise, result from, or relate to:
  - any breach of, or failure by, Customer to perform any of its obligations, warranties, covenants or agreements in this Agreement or any other agreement furnished, or to be furnished, by Customer;
  - any third party copyright and related rights infringement caused by the use by Contractor of resources provided by Customer, committed by Customer or other persons using Customer’s Account under Agreement;
  - any breach of applicable legislation, including GDPR, committed by Customer by using Subscription to Mindbox Service;
  - any activities performed by Customer.
  This condition is applicable only if Contractor has notified Customer about the requests of third parties according to Agreement.
2. Customer warrants that resources and objects used in accordance with the terms of Agreement are in compliance with the applicable legislation, including GDPR and legislation on personal data, on advertising and competition protection, intellectual property rights and not burdened by claims of third parties, and the Customer is the exclusive owner of the provided resources, objects and/or has all required permissions from authors and other сopyrights holders in respect to intellectual property rights on such resources, on objects included in such resources and in respect of original objects (if such resources represent revisions and/or translations), provided that such permissions should not prejudice the rights of the Contractor or impede the use of the objects by the Contractor in accordance with this Agreement. The Customer hereby grants the Contractor a non-exclusive, non-transferable right to use all the resources and objects for the purposes of due performance of Contractor’s obligations under Agreement.
  
  If Customer uses client information of citizens of a foreign country (not EU) and/or makes messaging to such citizens when working with Mindbox Service, Customer guarantees compliance of all materials sent by him or by any other person through his Account applicable to foreign law, as well as compliance by Customer with the applicable foreign law when working with Mindbox Service.
3. Customer is liable for the relevant quality of Client information for Message Delivery Systems and guarantees such relevant quality. To ensure successful delivery of Customer’s electronic communications and to maintain the rating of Mindbox Service in the systems of message delivery, Contractor is entitled to ask Customer to carry out the required actions, including:
  - clean the database from dubious or unreliable information;
  - change the frequency of mailings;
  - unsubscribe some Clients from mailings; and
  - provide Contractor with the information proving that Client information has legal origins.
  Customer is obliged to perform the required actions within five (5) business days after receipt of the relevant request from the Contractor.
4. Contractor is entitled to suspend respective Additional Modules of Mindbox Service with a five (5) business days’ prior notice to Customer in case Customer has breached the provisions of paragraph 6.1. — 6.3. hereof. The period of time during which Subscription to Mindbox Service was suspended as a result of Customer’s undue performance or nonperformance of its obligations under Agreement shall be payable according to Agreement as if Subscription to Mindbox Service was provided by Contractor. Only termination of Agreement shall mean complete termination of Subscription to Mindbox Service.
5. Сontractor guarantees compliance with GDPR and the EU Data Protection Directive in relation to the processing of Personal Data.
6. Contractor guarantees compliance with Data processing terms.
7. Contractor guarantees that it will not use Client information,whether anonymized or not, for commercial purposes. Contractor shall not mention the Customer explicitly or implicitly in marketing and statistical researches conducted by the Contractor, unless otherwise is agreed with the Customer.
PENALTIES AND COMPENSATION
1. Penalty for late performance or non-performance by Customer of any obligation equals 0.1% of the value of such obligation for each day of delay, and shall be accrued in the case of due written request. Penalties shall be paid within ten (10) business days after receipt of the relevant request. Contractor can demand performance of both this penalty clause and the obligation to which this penalty clause is linked. Penalties are not charged on advance payments. Any amount due on the basis of this penalty clause will not take the place of the compensation for damages that are due by virtue of law.
FORCE MAJEURE
1. Neither Party shall be liable to the other Party for any delay, damage, or failure caused by or occasioned by Force majeure event. Delays due to Force majeure events shall not be deemed to be a breach of or a failure to perform under Agreement.
2. A Party invoking Force majeure event circumstances shall notify the other Party within three (3) business days after their occurrence, otherwise it loses the right to invoke such circumstances.
TERMINATION OF AGREEMENT
1. This Agreement can be terminated upon written mutual agreement of Parties.
2. Customer shall have the right to terminate this Agreement by a one (1) business day prior notice in writing to Contractor.
3. Contractor shall have the right to terminate Agreement by giving notice to Customer:
  - at least one (1) business day before the termination, if Customer did not cure the reason of a suspension of Subscription to Mindbox Service specified in clauses 4.3, 6.4 within five (5) business days after the date of such suspension, or Customer was subjected to suspension of Subscription to Mindbox Service more than twice in one calendar year;
  - at least thirty (30) calendar days before the termination in other cases.
4. TThe moment of termination is the moment agreed by Parties or stated by one of Parties to be the last day of Agreement.
5. Subscription to Mindbox Service that has already been provided at the moment of termination must be fully paid by Customer.
6. Contractor shall refund to Customer all the advance payments excluding the cost of Subscription to Mindbox Service that have already been provided by Contractor at the moment of termination.
GOVERNING LAW AND JURISDICTION
1. This Agreement shall be governed, construed, and interpreted in accordance with the laws of the _______ .
2. Any dispute arising under this Agreement or any other agreement resulting there from and relating thereto shall be brought before the competent court of _____, the ______, notwithstanding Contractor’s right to have such dispute brought before any other competent court.
MISCELLANEOUS
1. Agreement sets forth the entire understanding between Parties relating to the subject matter of Agreement and supersedes all prior agreements, correspondence and discussions between Parties relating to the subject matter of this Agreement and merges all prior and contemporaneous discussions between them.
2. Agreements or stipulations mutually agreed on by Parties in mutually acceptable manner that are contrary to any term of Agreement shall prevail, unless Contractor and Customer have expressly agreed in writing that such agreement or stipulation shall not supersede the terms of Agreement. The Annex to Agreement stipulating Mindbox Service Rates shall constitute an integral part of Agreement and shall be construed in accordance with Agreement.
3. In the event that any clause or covenant of Agreement shall be unenforceable or invalid under applicable laws or be so held by an applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole.
4. Customer provides Contractor, as well as persons belonging to Contractor’s group of companies (i.e. persons which are owned (have shares in the authorized capital or shares) by the Contractor, or which are owned by a participant of Contractor, including indirectly (through other persons)) the right to place the logo (trademark) of Customer and a hyperlink to Customer’s website in promotional materials, presentations and on Contractor’s websites.
5. Contractor is entitled to use anonymized Client information and Client actions for the purpose of marketing and statistical research. The research results may be published with public access and announced at public events.
6. Agreement as well as all legal instruments with regard to Agreement may be executed in any number of counterparts, each of which shall be deemed an original and the signed counterparts will together form a single binding instrument.
7. Delivery of any executed counterpart by Means of communication shall be equally effective as delivery of hard copy executed original. Upon receipt of such request Contractor shall provide Customer with a hard copy of the executed counterpart of Agreement within seven (7) business days after the request, but failure to do so shall not affect the validity, enforceability or binding effect of Agreement.
  
  IN WITNESS WHEREOF, Parties have executed Agreement effective as from Effective Date stated above.

DETAILS AND SIGNATURES OF THE PARTIES

CUSTOMER	CONTRACTOR
________________________________________________	________________________________________________
VAT number: _________	VAT number: _________
CIN/CRN: _________	RSIN: _________
	KvK number: _________

Address: _________	Account name: _________ Account number: _________
IBAN: _________	IBAN: _________
Bank name: _________	Bank SWIFT code: _________ Bank name: _________ Bank institution address: _________
SWIFT code: _________	Currency: _________
Customer’s email domains: _________	Customer’s email domains: _________
Representative of Customer: ________________	Representative of Customer: ________________
Signature: Place: _________	Place:

Attachments

Annex 1 — MASTER SERVICE AGREEMENT