Terms of service

This Master Service Agreement (the “MSA”) forms a binding agreement between you, in your individual capacity or on behalf of the entity you represent, as applicable (the “Customer”), and Agora Solutions, Inc., a Delaware corporation (“Agora”). This MSA governs Customer’s Subscription to access and use of the software-as-a-service solution offered by Agora and described at getagora.com (the “Service”), as well as the performance of Professional Services by Agora if applicable, each as described on the applicable Order Form or other ordering document referencing this MSA, or within the interface of the Service (each an “Order Form” and together with this MSA, the “Agreement”).

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The Service

Subscriptions. Company and Customer may enter into one or more Order Forms referencing this MSA, whether by written agreement or by clicking an acknowledgement with the interface of www.getagora.com, pursuant to which Customer may purchase a subscription to access and use the Service, subject to this Agreement (a “Subscription”). An Order Form may additionally include implementation and other professional services to be performed by Agora (the “Professional Services”).
Authorized Users. An “Authorized User” is a person who the Customer, or a person with admin access on a Customer’s account, has invited to join Customer’s account on the Service, either via the interface of the Service or via a request to Agora. Authorized Users may be employees, contractors, agents or other service providers of Customer. Customer is responsible for all actions by Authorized Users on Customer’s account. Each Authorized User is subject to and must accept Agora’s User Terms of Service, available at getagora.com/legal as a condition of being added to Customer’s account as an Authorized User.
Access to the Service. During the term of a Subscription, Agora shall provide Customer and Customer’s Authorized Users with non-exclusive access to the Service. Customer and the Authorized Users may use the Service solely for Customer’s own internal business purposes and not for resale, in a service bureau arrangement or via distribution by any means not explicitly allowed under this Agreement.
Trial Access. Agora may, in its sole discretion, also offer Customer the ability to access and use the Service, or certain components of the Service, without payment, subject to this MSA (an “Unpaid Subscription”). Agora may terminate any Unpaid Subscription at any time, in its sole discretion, without liability to the applicable Customer. Anything to the contrary in this MSA notwithstanding, Agora’s maximum aggregate liability with respect to any Unpaid Subscription shall not exceed $100. Agora makes no representations or warranties as to availability or functionality of the Services for any Unpaid Subscription.
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Billing and Payments

Pricing Structure.

Fees for access to the Service are based on a subscription as described on the applicable Order Form (the “Subscription Fees”). An Order Form may additionally explicitly designate that a Subscription Fee shall be an organization-wide subscription with an annual subscription fee for an unlimited number of Users. Fees for Professional Services, if any, are charged as described in the applicable Order Form (the “Professional Services Fees” and together with the Subscription Fees, the “Fees”)
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Billing and Payment Methods

Credit Card Authorization. By purchasing a Subscription, you give us permission to charge your credit card or other approved method of payment for all fees incurred by you for your Subscription. Agora does not store your credit card information itself but instead relies on it’s third-party credit card processor. By purchasing a Subscription, Customer gives Agora permission to share the applicable payment information with its third-party credit card processor.
Invoicing. Agora may, in its sole discretion, agree in writing to permit certain users to pay via invoice. Any such invoice will be due within 30 days of receipt thereof, payable in U.S. Dollars.
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Late Charges

Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
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Taxes

Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any such taxes are required to be withheld, Customer shall pay an amount to Agora such that the net amount payable to Agora after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
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Billing Disputes

Customer agrees that it will notify Agora within 30 days of receipt of a charge or invoice from Agora if it intends to dispute the amounts owed under such charge or in.

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Intellectual Property Rights & Restrictions.

Customer Information

As part of the Service, Customer or its Authorized Users may upload to the Service certain salary information, business records, documents, images, files, notes, tags or other electronic records relating to the operations of Customer (the “Customer Information”). As between Customer and Agora, Customer retains all ownership of the Customer Information, and Agora agrees that it obtains no intellectual property rights in the Customer Information except the limited license set forth herein. Customer hereby grants Agora a limited, non-exclusive, royalty-free license to use the Customer Information to provide the Service to Customer and Customer’s Authorized Users and to support, manage and improve the Service, subject to the confidentiality obligations set forth in this Agreement. Additionally, Customer hereby grants Agora a limited, non-exclusive, royalty-free, irrevocable license to use Customer Information in an aggregated and anonymized manner, provided that such use does not allow any third party to identify Customer or any Authorized User.
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Agora Intellectual Property

Credit Card Authorization. By purchasing a Subscription, you give us permission to charge your credit card or other approved method of payment for all fees incurred by you for your Subscription. Agora does not store your credit card information itself but instead relies on it’s third-party credit card processor. By purchasing a Subscription, Customer gives Agora permission to share the applicable payment information with its third-party credit card processor.
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Agora Intellectual Property

Agora shall retain all intellectual property rights in the Service, including any and all derivatives, changes and improvements thereto, and Customer agrees that it obtains no intellectual property rights or licenses by this MSA except those expressly granted herein. Customer agrees that it shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possess any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest Agora's intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Agora.
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Agora Platform Data

In the course of providing the Service, Agora may collect statistical data and performance information, analytics, meta-data or similar information, generated through instrumentation and logging systems, regarding the operation of the Service, including Customer’s use of the Service (the “Platform Data”). Nothing in this Agreement shall restrict Agora’s right to collect Platform Data or to use it for any internal business purpose, provided however, that Agora will not disclose Platform Data to any third party in a manner that allows such third party to identify Customer or any Authorized User, other than Agora’s employees, agents or service providers who are subject to obligations of confidentiality with respect to such Platform Data.
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Feedback

Customer may, from time to time, provide Agora with ideas, suggestions, feedback, recommendations or improvements pertaining to the Service (collectively, “Feedback”). Customer hereby grants Agora a non-exclusive, perpetual, irrevocable, royalty-free license to use all Feedback for any purpose. Feedback is provided to Agora on an “as-is” basis without warranties of any kind.
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Marketing Rights

Customer consents to the inclusion of its name and logo on the Agora website and in Agora’s marketing materials, describing Customer as a customer of Agora.

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Privacy and Security

Security

Without prejudice to Customer’s obligations under Clause 4.4 (Customer Responsibilities), Agora will implement reasonable and appropriate measures designed to help secure the Customer Information against accidental or unlawful loss, access, or disclosure.
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Account Security

Login credentials cannot be shared or used by more than one individual Authorized User. Customer will notify Agora immediately if Customer believes that an unauthorized third party has accessed Customer’s account on the Service, or that an Authorized User’s account credentials or Customer Information have been compromised.

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Data Privacy

Customer acknowledges that it has reviewed Agora’s Privacy Policy, available at getagora.com/privacy (the “Privacy Policy”).

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Customer Responsibilities

Customer acknowledges and agrees that Customer and its Authorized Users control the content of any Customer Information inputted, transmitted, uploaded, transferred, submitted, replicated or in any other way accessed or used through the use of and for the purposes of providing the Service. Accordingly, Customer is solely responsible for accuracy, content and legality of all Customer Information uploaded by (or on behalf of) Customer or its Authorized Users to the Service. In addition, Customer acknowledges and agrees that it shall be responsible for procuring and maintaining any necessary consents and permissions and providing and making any necessary notifications required to ensure: (i) Customer is lawfully (without being in breach of applicable laws or contract) able to disclose, provide or make available to the Customer Information to Agora in connection with this Agreement and the Service, including (but not limited to) any consents required to enable the lawful transfer of Customer Information to Agora located in the United States; and (ii) Agora is lawfully (without being in breach of applicable law) able to use, store, handle and process the Customer Information in accordance with and for the purposes contemplated by this Agreement.

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EU Data Processing Addendum

To the extent Agora processes any Customer Information that includes “personal data” protected by Data Protection Laws (defined in the DPA), Agora agrees to process such personal data in compliance with Agora’s Data Processing Addendum, available at getagora.com/legal/dpa (the “DPA”), which is hereby incorporated by reference.

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California Consumer Privacy Act

Customer acknowledges and agrees that Agora California Data Privacy Addendum, available at getagora.com/legal/cdpa (the “CDPA”) is hereby incorporated into this Agreement by reference.
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Confidentiality

Confidential Information

“Confidential Information” shall mean all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential (i) with respect to Customer, the Customer Information, but not the Platform Data, and (ii) with respect to Agora, the pricing terms offered to Customer by Agora.
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Nondisclosure

Each party (each a “Receiving Party”) agrees that (i) it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this MSA and only to the extent necessary for such purposes and (ii) it shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, service providers or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this MSA, and shall not otherwise disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The Receiving Party will exercise at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this MSA for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
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Exceptions

Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this MSA by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this MSA.
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Representations and Warranties

Customer Representations and Warranties

Customer Represents and warrants to Agora that: (i) Customer has all necessary right and authority to upload the Customer Information to the Service without infringement upon any third party’s proprietary or privacy rights, including without limitation intellectual property rights; (ii) the Customer Information does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; and (iii) Customer will use the Service in compliance with all applicable laws, rules and regulations, and in accordance with this MSA.
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Agora Representations and Warranties

Agora represents and warrants to Customer that Agora will provide the Service to Customer in accordance with all applicable laws, rules and regulations.
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Mutual Representations and Warranties

Each party represents and warrants that it has the necessary corporate authority to enter into this Agreement, and this Agreement is a valid and binding obligation, enforceable against it, in accordance with its terms.
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Disclaimer of Warranties

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, Agora PROVIDES THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, Agora DOES NOT WARRANT THAT THE SERVICE WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.
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Indemnification

Customer Indemnities

Customer shall defend, indemnify and hold harmless Agora and its officers, directors, consultants, employees, successors and permitted assigns, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) resulting from any third party claim, demand, action, subpoena, request or attestation (collectively, a “Claim”) arising from (i) the use or display of any Customer Information in accordance with this MSA or (ii) Customer's breach of its obligations or inaccuracy of its warranties hereunder.
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Agora Indemnities

Agora shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the Service infringes any intellectual property right of a third party.
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Indemnification Procedure

The indemnified party shall provide the indemnifying party with: (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such claim; and (iii) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent, not to be unreasonably withheld or delayed.
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Limitation of Liability

Exclusion of Damages

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAG
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Maximum Aggregate Liability

EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY DURING THE TWELVE MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
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Acknowledgement

THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 8, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE BY SUCH LAW.
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Term; Termination

Term

This MSA shall be effective for so long as there is an Order Form in effect between Customer and Agora, or until otherwise terminated as provided herein.
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Termination for Cause

Either party may terminate this MSA by giving written notice to the other party if: (i) the other party breaches a material provision of this MSA and fails to cure the breach within 30 days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
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Effect of Termination

Upon termination or expiration of this MSA for any reason, Customer’s right to access and use the Service shall immediately terminate and Customer will immediately cease use of the Service.
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Survival

Sections 3 (Intellectual Property Rights & Restrictions), 4 (Privacy and Security), 5 (Confidentiality), 7 (Indemnification), Section 6 (Representations and Warranties), 8 (Limitation of Liability), 11 (Miscellaneous) shall survive any expiration or termination of this MSA.
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Changes to this MSA

This MSA is subject to occasional revision. Agora will notify Customer of any changes to this MSA by posting the updated version of this MSA on the Service and updating the “Last Updated” date below. Agora will also notify Customer of material changes by sending an email to the email address Customer have provided to us. For existing Customers, any changes to this MSA will be effective thirty calendar days following notification of such change, and for new Customers entering into this MSA after the new “Last Updated” date, these changes will be effective immediately. Continued use of the Service following such changes will indicate Customer’s acknowledgement of such changes and agreement to be bound by the updated version of this MSA.
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Miscellaneous

Governing law

This MSA is governed by the laws of the State of California, without regard to its conflict of laws principles, and any dispute arising from this MSA shall be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts.
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Assignment

Neither party may transfer or assign its rights or obligations under this MSA to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this MSA will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
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Notices

All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.
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Relationship of Parties

The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This MSA will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

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Severability

If any provision of this MSA is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.

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Temporary Suspension

Agora may temporarily suspend Customer’s access to the Service if Agora reasonably determines that: (a) Customer’s use of the Service disrupts or creates a security risk to the Service or Agora systems; (b) Customer is using the Service in violation of any applicable law or regulation or this MSA; or (c) Customer fails to pay fees owed to Agora in accordance with this Agreement. In the event of any suspension pursuant to this section, Agora will use commercially reasonable efforts to provide written notice thereof to Customer, and to restore access to the Service as promptly as reasonably practicable.
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Force Majeure

Except for payment obligations under this MSA, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, labor strikes, pandemic or other public health crises.
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Last updated: November 30, 2020