Terms and Conditions for White Label Service
 

1. White Label Service. Subject to these Terms and Conditions for White Label Service (“Terms and Conditions”), we will use reasonable efforts to make available to you the White Label Service (as defined in the Registration Form) pursuant to a registration form signed by you and us referencing these Terms and Conditions (“Registration Form” and, together with the Terms and Conditions, the “Agreement”). We may also give you access to certain new features and functionality of the White Label Service as they become generally available to other subscribers of the White Label Service from time to time. Capitalized terms used but not defined in these Terms and Conditions have the meanings given to them in the Registration Form.  For purposes of these Terms and Conditions, “you” means the entity that submitted the Registration Form, “MicroStrategy” means the entity whose name appears on the invoices charging for your access to the White Label Service, and “we” and “us” mean MicroStrategy together with its affiliates. We will receive the benefit of and may enforce the Agreement with respect to your use of the White Label Service in the same manner any such invoicing entity receives the benefit of and may enforce this Agreement with respect to your use of the White Label Service.

2. Implementation. Our Set-Up Tasks constitute the entirety of our obligations in preparing the White Label Application for your use. We will not be obligated to complete Our Set-Up Tasks until and unless you have provided us with all of Your Set-Up Tasks.

3. Service Items. The White Label Service is powered by our proprietary software, algorithms and other tools (the “Service Platform”). The Service Platform includes our pre-existing software and documentation and new software and documentation we may use or create while providing the White Label Service or any professional services or other services provided in connection with the White Label Service (including Our Set-Up Tasks). Except for your right to use the White Label Service as expressly provided herein, this Agreement grants no express or implied license, right or other interest in or to any of our intellectual property rights and we or our suppliers retain all rights, title and interests in and to the White Label Service, the Service Platform, the White Label Application, MicroStrategy’s Usher Application (the “Usher Application”) and all components of the foregoing (collectively, the “Service Items”) and our Confidential Information (as defined below). The foregoing sentence does not apply to, and Service Items do not include, Licensed Content (as defined below), which is governed by Section 4 below. You will not (a) copy, display, distribute, or otherwise use the Service Items in any manner or for any purpose not expressly authorized by this Agreement; (b) create derivative works of or otherwise modify the Service Items; (c)  reverse engineer, decompile or disassemble any of the Service Items (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (d) disclose results of any benchmarking tests without our prior consent; (e) sublicense, sell, rent, lease or use the Service Items (or any portion thereof) for time sharing purposes; or (f) remove any copyright or proprietary notices contained in the Service Items. We may add, delete, change, suspend or terminate features, functionality or other aspects of the Service Items at any time and for any reason and are under no obligation to make any of the Service Items generally available or to ensure compatibility or continuity between any version of a Service Item and any prior or subsequent versions thereof. The Service Items may contain significant errors, defects, omissions and problems which may or may not be corrected by us. We are under no obligation to upgrade or update the Service Items provided to you.  Any feedback that we receive from you regarding the Service Items and all improvements to the Service Items arising from such feedback will be owned by us. You hereby assign to us all of your rights in such feedback and improvements and agree to assist us in every proper way to secure such rights for us, including by executing documents that we deem necessary in order to secure such rights, and we will have no obligations to you with respect to such feedback and improvements. We are not responsible for, and do not have any obligations to you for, internet infrastructure, network equipment, websites, platforms, social networks, systems and end user and other devices, technologies or services that we do not exclusively control.  THE WHITE LABEL SERVICE IS NOT DESIGNED TO AND SHOULD NOT BE USED TO MANAGE PHYSICAL OR LOGICAL ACCESS TO FACILITIES OR SYSTEMS WHERE DELAY IN SUCH ACCESS COULD THREATEN HEALTH OR SAFETY AND YOU AGREE NOT TO USE THEM TO MANAGE SUCH ACCESS UNLESS YOU PROVIDE A FAILSAFE MECHANISM FOR LOCAL BYPASS OF THE WHITE LABEL SERVICE FOR USE IN AN EMERGENCY FOR WHICH YOU WILL BE FULLY RESPONSIBLE.

4. Content. You will have editorial control over, and sole responsibility for any sales, marketing and other materials and content (including logos, photos, video, audio, graphics, animation and text) that you provide to us or to End Users through the White Label Application or the Usher Application (such materials and content, the “Licensed Content”). To enable us to provide your White Label Service and perform under this Agreement, you grant us a non-exclusive, worldwide, royalty-free, sub-licensable right and license to reproduce, perform, display, distribute, re-format, store, create derivative works of, and otherwise use, the Licensed Content. You warrant that the Licensed Content, and the exercise of the rights and licenses granted to us hereunder, will not infringe or violate any right of any person or entity. We may remove Licensed Content from the White Label Application or the Usher Application at our discretion if we determine that you are in breach of this Agreement, if we believe that distribution or display of the Licensed Content may create liability for us or our third party providers, or at the request of a third party service provider or End User. Other than the rights and licenses you grant to us in this Agreement, you will retain all right, title and interest in the Licensed Content. You are responsible for the credentialing information, documents that are uploaded to your White Label Service and any other content that is uploaded, published, displayed or otherwise provided to us by you or your End Users (including any third party acting on behalf of you or your End Users) for display on or transmission through your White Label Service.

5. Policies. In using the White Label Service and conducting your activities in connection with this Agreement, you will (i) comply with all applicable international, US and other countries’ federal, state and local laws, rules, regulations and orders, in all jurisdictions in which anyone uses your White Label Service (“Laws”), (ii) comply with all terms and conditions of use, including privacy policies, established by us for the White Label Service, White Label Application and the Usher Application, including such terms, conditions and policies set forth in the White Label Service or at www.microstrategy.com/usher, as modified by us from time to time (“White Label Application Policies”), and (iii) comply with all terms and conditions of use established for or by platforms that we utilize in providing the White Label Service to you (such as Facebook or other federated ID services and application stores) (“Platforms”), as modified by the applicable Platform provider from time to time (“Platform Policies”), including any applicable restrictions on use, disclosure or sharing of data. You will not conduct activities in connection with this Agreement that cause us to violate any Laws, White Label Application Policies or Platform Policies. We reserve the right to immediately terminate this Agreement and our relationship with you if we believe you or your activities in connection with this Agreement do not fully comply with any or all Laws, White Label Application Policies or Platform Policies.

6.Promotion. To help us promote the White Label Service and the Usher Application, you grant us the rights to use your name, likeness and/or logo to publicly identify you as our customer on customer lists, on our websites and in sales and marketing collateral. 

7. Transmission Standards. You agree not to post or transmit any content or material via the White Label Service that is fraudulent, obscene, pornographic, profane, discriminatory, defamatory, libelous, harassing, or unlawful, that contains private information about a person or company without their consent, invades another’s privacy or publicity rights, violates any intellectual property rights or contracts, encourages unlawful or objectionable behavior (such as drug dealing, gambling, harassment, stalking or spamming), distributes viruses or other harmful files or may give rise to liability or otherwise violate any Law. We reserve the right to reject or remove content and material, including Licensed Content, from the White Label Service at our discretion.

8. End User Data. In connection with your use of the White Label Service, you might share with us information that you have collected about End Users outside of the White Label Application for us to use in connection with providing you the White Label Service, and the White Label Application or Usher Application might collect on your behalf personally-identifiable information from End Users (collectively “End User Data”).  You must provide all notices to and receive all consents from End Users required by Laws or Platform Policies with respect to any use, storage or other processing of their End User Data, including any transfer of such End User Data (including, as applicable, to countries other than where the data was originally collected) in connection with your White Label Service. As between you and us, for purposes of this Agreement and European data protection laws, you are the “data controller” and we are acting on your behalf as a “data processor” with respect to all End User Data. With respect to the End User Data, we agree: (a) to use and disclose such data only pursuant to the terms of this Agreement or as otherwise instructed or agreed to by you or required by law or legal process and (b) to have in place physical, technical and organizational security measures intended to protect the End User Data against (i) accidental or unlawful destruction; (ii) accidental loss, alteration, unauthorized disclosure or access; and (iii) all other unlawful forms of processing.  Notwithstanding (a) above, if an End User authorizes us to retain, access, use, disclose or otherwise process his/her End User Data outside of this Agreement, we may do so.

9. Your Information. We will use administrative, physical, technical and organizational measures to protect the security and confidentiality of any personal information about you or your employees that we may obtain in connection with this Agreement.  You may request to access, correct or delete the personal information that we collect from you or your employees by emailing account@usher.com.   

10. End User Terms. You will enter into binding and enforceable agreements with each End User, including terms of service and privacy policies, that govern such user’s access to and use of the White Label Application and any content contained therein (the “White Label Policies”).  The White Label Policies must be consistent with the terms of this Agreement, must comply with all applicable Platform Policies, and must at a minimum meet the following requirements (together the “Minimum Terms”):

(a) The White Label Policies must (i) contain a disclaimer of all warranties and a waiver of consequential and indirect damages (including lost profits) in each case for the benefit of and enforceable by us, with respect to the White Label Application; (ii) disclaim all of our liability to any End User with respect to the White Label Application; and (iii) specify that each End User may only seek remedies from you in connection with the White Label Application.  The White Label Policies must not limit your liability to the End Users beyond what is permitted by applicable law.

(b) Each End User must agree that we are a third party beneficiary of the White Label Policies and that as such we will have the right to enforce the White Label Policies directly against each End User.

(c) Each End User must agree that the End User Data may be shared with us in connection with their use of the White Label Application.

(d) The White Label Policies must specify your designated agent for receipt of notices in connection with the Digital Millennium Copyright Act (the “DMCA”) in a manner that complies with the requirements of the DMCA.

(e) Each End User must agree not to sublicense, reverse engineer, decompile or disassemble any of the Service Items.

(f) Each End User must agree that we may suspend, disable or terminate his or her account if he or she violates the White Label Policies, applicable law, or otherwise may cause harm or liability to us.
 
You are responsible for implementing the Minimum Terms in an enforceable manner, regardless of any documentation or other information we may provide you. Neither the inclusion of the Minimum Terms in this Agreement nor any approvals, documentation or other information we may provide you or you may provide us constitutes legal (or other) advice provided by us or you to the other. You will (i) comply with all White Label Policies and (ii) promptly notify us of any complaints or requests for action by End Users or others regarding the White Label Application or your White Label Service (including requests to remove infringing material under the DMCA) and promptly address such complaints in accordance with the White Label Policies and applicable law. We may suspend or terminate the account of any End User who violates the White Label Policies or any applicable law or who otherwise may cause harm to us.

11. Electronic Signature. If you or your End Users use the document sharing and electronic signature functionality (the “Document Features”) within your White Label Service, then in addition to the other terms contained in this Agreement, the terms of this Section 11 will also apply. With respect to any use of the Document Features, we are solely a technology provider and are not a party to agreements you or your End Users enter into with each other or third parties using such features. We make no representation or warranty regarding any transactions sought to be effected through the Document Features. We maintain no control or access to the contents of any electronic document stored by or accessed through the Document Features, and the content, quality, and format of any electronic document is not our responsibility. Certain types of agreements and documents are excepted from electronic signature laws, such that they cannot be legally formed by electronic signatures; additionally, various agencies may have promulgated specific regulations that apply to electronic signatures and electronic records. We assume no responsibility to determine whether any particular electronic contract is an exception to applicable electronic signature laws or whether it is subject to any particular agency promulgations and whether it can be legally formed by electronic signatures. Certain laws or regulations may impose special requirements with respect to electronic transactions involving one or more consumers.  These may include, among other things, requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction.  We assume no responsibility to determine whether any particular transaction involves a consumer, nor do we have any responsibility: (i) to furnish or obtain any such consents or to determine if any such consents have been withdrawn; (ii) to provide any information or disclosures in connection with any attempt to obtain any such consents; (iii) to provide legal review of, or to update or correct any information or disclosures currently or previously given; (iv) to provide any such copies or access for all transactions, consumer or otherwise; or (v) to otherwise comply with any such special requirements.  You expressly undertake to determine whether any consumer is involved in any electronic contract presented by you or your End Users, and, if so, to comply with all requirements imposed by law on such electronic contracts or their formation.

12. Registration of White Label Application. You will be designated as the publisher and/or developer of the White Label Application with respect to each applicable Platform.  As the publisher and/or developer of the White Label Application for a given Platform, you may be required to enter into an agreement with the Platform regarding the registration and maintenance of the White Label Application on such Platform, and you will (i) obtain all consents necessary for us to manage the White Label Application in accordance with this Agreement and (ii) provide us with access to your publisher and/or developer accounts as necessary to enable us to publish, update, and otherwise manage the White Label Application in accordance with this Agreement. We will use reasonable efforts to assist you with the registration of the White Label Application with any such Platform, but we cannot guarantee that the White Label Application will be accepted by the Platform and you will not be entitled to a refund of any fees you paid to us if the White Label Application is not accepted by a Platform. The White Label Application will be considered “generally available” for purposes of this Agreement as of the first day it is publicly available on an app store.

13. Telephone Support. We will provide you telephone support at no additional charge for your use of the White Label Service once the White Label Application is generally available. This support will be available to Account Administrators (as defined in the Registration Form). 

14. Confidentiality. During and after the term of this Agreement, you and we will each hold the other’s Confidential Information in confidence and protect such Confidential Information with at least the same degree of care, but no less than reasonable care, with which it protects its own similar confidential information. Neither you nor we will use the other’s Confidential Information for any purpose except to exercise its rights or to perform its obligations under this Agreement. Notwithstanding the foregoing, you or we may make such disclosures as are required by legal, accounting, or regulatory requirements and state publicly or list in advertising and marketing materials the fact that you and we are working together in connection with the White Label Service. “Confidential Information” means any data, information or materials disclosed by you or us to the other or its representatives in connection with this Agreement that is not in the public domain and that is either identified by the disclosing entity before its disclosure as being confidential or understood by the recipient, exercising reasonable business judgment, to be confidential.  Any data, information or materials which we or you obtain from a third party (unless we or you, as applicable, know or reasonably should know that the other has required the third party to keep the data, information or materials confidential) will not be Confidential Information.  Our Confidential Information includes pricing terms and all manuals and technical specifications that we provide or make available to you relating to the Usher Application, the White Label Application or the White Label Service. We may use your Confidential Information and share it with our agents in the United States and elsewhere for purposes of performing under this Agreement, providing related services to you, maintaining our systems and records, or identifying opportunities for us to provide and offer products and services to you.

15. Modifications. These Terms and Conditions may be modified by us from time to time. We will provide advance notice of any modifications that materially and adversely affect your rights or use of the White Label Service through the interface for your White Label Service or email to an Account Administrator, unless such modifications are in response to changes in Laws and it is not practicable for us to provide advance notice. All such notices will be deemed delivered upon being posted or sent as indicated above and will become effective on the applicable date specified in such notice.

16. Export Laws. Export Laws of the United States and other relevant local export Laws may apply to the Service Items (as defined herein).  You agree that such export Laws, as applicable, govern your use of the White Label Service, and you agree to comply with all such applicable export Laws (including “deemed export” and “deemed re-export” regulations).  You agree not to export any Service Items, directly or indirectly, in violation of these Laws, or to use any Service Items for any purpose prohibited by such Laws.

17. Government Use.  Any software or documentation that we provide pursuant to this Agreement are “commercial items” as defined in FAR 2.101. Therefore, in accordance with FAR 12.211 (Technical data) and FAR 12.212 (Computer software) and, for U.S. Department of Defense Customers, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in commercial computer software or computer software documentation), all U.S. government end users acquire such software and documentation with only those rights set forth herein.

18. Representations and Warranties by You. You represent and warrant to us that: (i) your Licensed Content does not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party, and (ii) you have all rights necessary to grant the licenses set forth in these Terms and Conditions.

19.I ndemnity. You agree to indemnify, defend and hold us (and our affiliates, officers, directors, employees and agents) harmless from and against any claims, demands, lawsuits, actions, proceedings or investigations made by any third party (including End Users of your White Label Application) from and against any fees, costs, sanctions, penalties, damages, losses or expenses (including reasonable attorneys’ fees) due to or arising out of (i) your use of the White Label Service, (ii) your breach of this Agreement, (iii) your violation of any Law or the intellectual property or other rights of a third party, or (iv) your Licensed Content. 

20. Disclaimer of Warranties. The Service Items will be provided by us “AS IS”. To the maximum extent permitted by law, we disclaim all warranties, whether express or implied, with respect to the SERVICE ITEMS, including all warranties of merchantability, fitness for a particular purpose, non-infringement and title. Without limiting the foregoing, there is no warranty against interference with your enjoyment of the SERVICE ITEMS. We do not warrant that use of any SERVICE ITEMS or any portion thereof will be uninterrupted or error-free OR that the SERVICE ITEMS or any portion thereof will meet any of your needs or requirements. The SERVICE ITEMS are provided with ALL FAULTS, and the entire risk as to satisfactory quality, performance, accuracy and effort is with you.

21. Limitation of Liability. We will not be liable to you for any indirect, special, incidental, consequential, punitive or exemplary damages (including damages related to delays, loss of data, interruption of service or loss of business or profits), even if we have been advised of the possibility of such damages and even if a limited remedy is deemed to have failed of its essential purpose. The maximum cumulative liability that we have to you relating to this Agreement or any transaction contemplated by this Agreement, whether based on contract, tort, or otherwise, will be limited to the greater of (i) the fees we earned and received from you under this Agreement in the twelve (12) month period immediately preceding the date of the initial claim giving rise to liability hereunder and (ii) one thousand U.S. dollars. This is an aggregate limit regardless of the nature or number of claims.  IN ADDITION TO THE FOREGOING, WE will not be liable in any manner for any loss, harm or damage arising out of your or your End Users’ disclosure or sharing WITH THIRD PARTIES of (a) digital credentials (including keys) or (b) documents uploaded to the Service, and you hereby release us from any and all claims, causes of actions, obligations or liabilities arising from or relating to such disclosure, SHARING, UPLOADING OR RELATED ACTIVITIES.  

22. Termination. MicroStrategy may terminate this Agreement by providing you at least thirty (30) days advance written notice. MicroStrategy may terminate this Agreement, or suspend or terminate your access to or terminate your White Label Service, at any time effective immediately if (i) it determines that you are in breach of this Agreement or (ii) it determines that the provision of your White Label Service to you is not reasonably practicable, including as a result of force majeure or the action of a Platform provider. If we provide notice of modifications to these Terms and Conditions pursuant to Section 15 above that materially and adversely affect your rights or use of your White Label Service, you will have the right to terminate this Agreement during the period from the time we provide such notice until the time such modifications become effective pursuant to the notice. Notice will be provided as set out in this Agreement.

Sections 2 through 24 and any other provision of this Agreement which in accordance with its terms is intended to survive the expiration or termination of the Agreement will survive such expiration or termination.  The termination provisions in this Section 22 state your sole rights and exclusive remedy for our failure to develop, operate or provide the Service Items.

23. Notices. Except as otherwise provided in Section 15 above, all notices required or permitted to be provided to you hereunder will be sent to the mail address or email address provided by you when you register with us or otherwise in your Agreement.  Unless otherwise specified in this Agreement, all notices required or permitted to be provided to us will be sent to the following address: MicroStrategy, Attention: General Counsel, c/o 1850 Towers Crescent Plaza, Tysons Corner, VA 22182, USA.  All notices will be deemed delivered two days after being sent by an internationally recognized express courier service or immediately if sent by facsimile, email or through the interface for your White Label Service.

24. Other Provisions. This Agreement, your use of the White Label Service and any other agreement we enter with you in connection with your use of the White Label Service will be governed by the laws of the State of Delaware excluding its conflicts of laws principles; the U.N. Convention on Contracts for the International Sale of Goods does not apply. For any action arising out of or relating to this Agreement, each party submits to the exclusive jurisdiction of the U.S. District Court for the District of Delaware, unless no federal jurisdiction exists, in which case the action will be brought only in the state courts located in Wilmington, Delaware; provided, however, that we may institute proceedings against you in any other court in order to enforce our rights through specific performance, injunction or other equitable relief.  The Registration Form may be amended only by a written instrument signed by both parties. This Agreement (i) will not be assigned by you (with a merger, direct or indirect change of control or assignment by operation of law constituting an assignment) without our prior written consent; (ii) may be assigned by MicroStrategy or its successors or assignees without your consent; (iii) will be binding upon the respective permitted successors and assignees of each party; (iv) does not create a partnership, joint venture, agency, employment or other similar relationship between you and us; (v) gives no other person or entity, other than you and us and the respective permitted successors and assignees of the parties hereto, any right, remedy or claim with respect to this Agreement; and (vi) including all exhibits to this Agreement and any other written agreements in effect between you and us specifically referencing this Agreement, constitutes the entire agreement of the parties with respect to its subject matter and supersedes all oral communications and prior writings with respect thereto. You will reimburse us for all costs and expenses we incur, including our reasonable attorneys’ fees, in enforcing any provision of this Agreement. No waiver of any provision of this Agreement by either party will be deemed to be a waiver of another provision or a future waiver of the same provision by such party.  If a provision of this Agreement is invalid, the remaining provisions will continue to be valid and enforceable. The term “including” means “including without limitation”. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. Any Fees contemplated by this Agreement do not include any taxes. You will be solely responsible for any taxes, levies or duties imposed by any governmental authority in connection with your use of the White Label Service, other Service Items and any other services we may provide to you under this Agreement. You will also be responsible for any third party transaction fees or other charges that are attributable to your use of the White Label Service (such as transaction fees charged by the operator of any app store).   You will be responsible and liable for all actions and omissions of your employees, contractors, agents and others in connection with your use of the White Label Service, the White Label Application, the Usher Application and any other Service Items as well as all actions and omissions of anyone while accessing any such Service Items using your User IDs, in each case to the same extent as if those actions or omissions were yours.

If you are located in a country other than the United States, additional terms and conditions may apply to your use of the White Label Service.  Please click here for more details.

Last revised on December 6, 2013
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