Massive network license agreement
Last updated: September 22, 2023
This Massive Network License between the purchaser of Massive Network License (such entity, “Subscriber” and this agreement, this “Agreement”) and Massive Computing, Inc. (“Massive”) consists of the following Overview, Further Term and Conditions, and any mutually signed Statement of Work, and takes effect when Subscriber signs up to use Massive or accesses or uses any of its services. It may or may not be accompanied by an additional Statement of Work.
Massive Proxy Infrastructure Service is a rotating residential IP service provided for Subscriber’s use as an element of a proxy server service that Subscriber provides its customers pursuant to written agreements between Subscriber and each customer (such Massive-provided service, the “Service” and such Subscriber-provided service, a “Subscriber Service”).
Any minimum purchase commitments will be included in the Statement of Work or online sign up portal.Upon the successful completion of the Service trial described in the first paragraph of Article 3 of the Further Terms and Conditions, Subscriber shall be charged a Use Fee for each GB of request headers and payload and response headers and payload processed by the Service. When commercial use of the Service commences on a day other than the first day of a month, the monthly minimum purchase commitment shall be prorated based on the percentage of the relevant month that Subscriber made commercial use of the Service.
Within four (4) business days of the conclusion of each month, Massive shall invoice Subscriber the Use Fee due for the minimum purchase commitment for the current month, and if Subscriber’s usage in the previous month exceeded their minimum commitment, overage Use Fees for each GB of that overage. Any unused GB from the month prior will be rolled over as a credit and redeemable for the following month.Terms related to Fees listed in a Statement of Work or posted on the online sign up portal supercede the standard Fees in this Agreement.
Terms related to Fees listed in a Statement of Work or posted on the online sign up portal supercede the standard Fees in this Agreement.
Further Terms and Conditions
This Agreement sets forth the terms on which Massive shall provide and Subscriber shall purchase the Service for its use as an element of a Subscriber Service. This Agreement consists of the General Terms, Further Terms and Conditions, any mutually signed Statement of Work, and any representations from Massive’s online signup portal.The parties to this Agreement may be referred to individually herein as a “Party” and collectively as “the Parties.” Capitalized terms not defined in Sections 2 - 20 shall have the meanings ascribed to them in Section 21.
2. Massive Provision of the Service
2.1 Subject to Subscriber’s compliance with its obligations this Agreement, Massive grants Subscriber a non-exclusive, non-transferable and non-assignable (except as permitted by Section 17), non-sublicensable (except as set forth in this Section 2.1), revocable in the event of breach of this Agreement, right and license during the Term (i) to access and utilize the Service to obtain, utilize and manage the Service Functionality and to render the Service Functionality useable by Customers solely as an element of a Subscriber Service; (ii) to grant Subscriber Users the right to take each action necessary to enable Subscriber to manage and utilize the Service Functionality element(s) of each Subscriber Service and to provide that Service Functionality to Customer Users, and (iii) to grant Customer and every Customer User the right to use the Service Functionality elements of each Subscriber Service in accordance with the agreement under which the Customer purchases that service from Subscriber and the user Documentation of that service (each of the licensed uses set forth in clauses (i) – (iii) a “Licensed Use”).
2.2 Subscriber shall not (i) seek to exploit the Service for any purpose or use the Service in any manner that is not a Licensed Use (and, in particular, shall not access or observe the Service in order to develop a service, software or other technology that provides any feature or function of Service Functionality), (ii) reverse engineer, disassemble, or decompile, or attempt to reverse engineer, disassemble, or decompile any element of the Service or Software, (iii) except as permitted by Section 2.1, rent, lease, sublicense, sell, distribute, convey, assign, loan or otherwise transfer access to the Service, any Service Functionality or any Software to any third-party, (iv) use the Service, any Service Functionality or any Software to operate as an application service provider, software-as-a-service provider or a service bureau, (v) modify, improve, make any other change of any nature or create derivative works of the Service, any Software or any Documentation without Massive’s prior written consent, (vi) perform any act or engage in any activity that interferes with or disrupts the normal operation of the Service or Software (including, in either case, its user authentication, data security or security measures), (vii) use the Service in a way that imposes an unreasonable or disproportionate load on the Service, (viii) fail to treat the Service, Service Functionality, Software or Documentation as “Confidential Information” subject to Section 9.1 or (ix) direct or knowingly permit any third-party to take any action prohibited by clauses (i) – (viii) above.
2.3 Massive shall have the right to monitor use of the Service by Subscribers and Customers for billing purposes and to detect misuse or abuse of the Service.
2.4 Massive shall have no responsibility or liability (i) for any actions taken in reliance on the Service’s operation or any or injuries that result from the Service’s operation in accordance with its user Documentation, (ii) any failure of Subscriber to utilize APIs to interoperate with the Service that comply with Massive’s API requirements documentation, or (iii) arising as a result of any characteristic of any content routed by means of Subscriber or Customer use of the Service (e.g., such content’s breach of the rights of the content’s owners, inclusion of pornographic, obscene, fraudulent, deceptive, hateful or unlawful content or content that promotes violence, gambling, automatic purchases or unlawful conduct).
2.5 Subscriber shall be liable to Massive with respect to any act or omission of any Subscriber Representative, Subscriber User or Customer User with respect to which Subscriber would have been liable to Massive had the act or omission been that of Subscriber.
3. Service Activation and Deactivation
Unless the Parties agree otherwise, use of the Service by Subscriber shall be treated as commercial use of the Service with respect to which the applicable Use Fees set forth in Section 4.1 shall be charged. The initial billing period shall be from the date that commercial use commences through the last day of the current month. All subsequent billing periods will commence on the first day of the relevant month and end on its last day. Subscriber may purchase the right to use the Service in additional implementations issuing an Order to Massive requesting that right.
4. Use Fees, Payment and Taxes
4.1 The Use Fees due Massive for its provision of the Service are set forth in the Use Fees section of the General Terms or in an accompanying Statement of Work or declaration on Massive’s online signup portal.
4.2 Massive shall invoice Subscriber for Fees in the manner and on the schedule described in General Terms. Each invoice shall request the payment of fees in United States Dollars and be delivered to Subscriber by Bill.com email transmittal. Subscriber shall pay each invoice within five (5) business days, unless agreed otherwise in writing, via ACH or card payment orchestrated by Bill.com.
4.3 Subscriber may, in good faith, dispute an invoice or any part thereof (a “Disputed Amount”) by submitting a written notice of such dispute along with reasonable supporting documentation within thirty (30) days of the date of the invoice on which the Disputed Amount appears, failing which Subscribers waives all rights to dispute such Disputed Amount and to file any claim. The Parties will work together in good faith to resolve the Disputed Amount within thirty (30) days after receipt of Subscriber’s notice.
4.4 Interest shall accrue on all undisputed payments which are not completed by the due date described in Section 4.2. Massive may suspend Subscriber’s access to and use of the Service, without further notice, upon Subscriber’s failure to pay an undisputed invoiced Use Fees within five (5) business days of their payment due date, unless agreed otherwise in writing, and may terminate this Agreement, without further notice, in the event that Subscriber fails to pay undisputed invoiced Use Fees within twenty (20) days of their payment due date, unless agreed otherwise in writing.
4.5. Each Party shall be responsible for all taxes, duties, fees, levies and other governmental charges of any kind which are imposed on it, or under the authority of, any government or any political subdivision thereof based on the amounts paid to Massive hereunder or any aspect of this Agreement. All payments by Subscriber under this Agreement shall be made without deduction for, or on account of, any taxes, duties, fees, levies and other governmental charges of any kind as may be payable by Subscriber, other than withholding as may be required by applicable law.
5. Maintenance and Support
5.1 Maintenance and Support shall be provided as elements of the Service.
5.1.1 Maintenance consists of the provision of maintenance releases of the Software which introduce error corrections so that the Service may continue to operate in accordance with its Documentation.
5.1.2 Support consists of customer support and error corrections that are required to remedy failures of the Service to operate in compliance with its Documentation (the completion of which such remedies cannot reasonably be delayed until the next relevant Maintenance event).
The only Personal Information that Subscriber or its Customers shall provide shall be the authentication credentials, identities and business contact information of (i) Subscriber Users and Customer Users and (ii) Subscriber and personnel who are not Subscriber Users, but interact with Massive with respect to the deployment, configuration, performance, management, maintenance and support of the Service (collectively, “Business Contract Information”). Subscriber, Subscriber Users, Customer Users and individuals falling within the scope of clause (ii) of the previous sentence shall not disclose to Massive or input into the Service any Personal Information other than Business Contact Information without Massive’s prior written consent. Massive shall use Business Contact Information solely to perform Massive's obligations under this Agreement and in accordance with applicable law. Absent Subscriber’s prior written direction for Massive to do otherwise, Massive shall not disclose any Business Contact Information to any third-party other than Massive’s Representatives on a need-to-know basis.
7. Intellectual Property Rights
7.1 Except for the license granted to Subscriber in Sections 2.1, as between Massive and Subscriber, Massive possesses all rights in and to the Service, Service Functionality, Software, Documentation and Service Operation Data. No provision of this Agreement conveys to Subscriber or any other entity or person any right, title or ownership interest in the Service or any Service Functionality, Software or Documentation other than the rights and licenses granted in Sections 2.1. As between Subscriber and Massive, all modifications, Enhancements, derivative works and changes of any nature to the Service, Service Functionality, Software or Documentation shall be the sole and exclusive property of Massive (regardless of who authored or created them). Massive does not, and shall not, claim any ownership interest in any Subscriber, Customer or third-party content that is routed by means of Subscriber or Customer use of the Service.
7.2 Under no circumstances shall any provision of this Agreement be construed as granting Subscriber or any other party: (i) a license to any property of Massive other than the Service, Service Functionality, Software or Documentation; (ii) a license under any intellectual property rights held by Massive to engage in any activity other than those authorized by Section 2.1; or (iii) any additional rights or licenses with respect to the Service, Documentation or Software other than those set forth in Section 2.1.
7.3 Subscriber shall not remove, obscure or modify any copyright, trademark or patent rights notice that appears in the Service, Software or Documentation.
8. Confidential Information; Feedback
8.1 Each Party agrees that all information concerning the Service (including Service Operation Data), Service Functionality, Software, Documentation, Health Checks, inventions, algorithms, know-how, documentation, technical information, security methodologies and assessments, pricing, contemplated future Enhancements, and all other business, technical and financial information it obtains from the other party are the confidential property of the disclosing Party (“Confidential Information”). Throughout the Term each Party shall hold all Confidential Information of the other party in strict confidence, shall not use any Confidential Information of the other party for any purpose other than to perform its obligations or to exercise its rights under this Agreement, and shall only disclose Confidential Information of the other party to those of its Representatives who have a need to know that information in order to enable the receiving Party of that information to perform its obligations or exercise its rights under this Agreement. Each Party shall be liable for any act or omission of any of its Representatives which would have constituted a breach of this Article 8 had it been an act or omission of that Party. The terms and conditions of this Agreement shall be considered Confidential Information. Each Party’s nondisclosure obligation shall not apply to information which: (i) is or has become public knowledge through no fault of the receiving Party; (ii) has been rightfully obtained by the receiving Party from a third-party without breach of any confidentiality obligation; or (iii) is independently developed by Representatives of the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
8.2 During the Term, the receiving Party may disclose Confidential Information as required to comply with a binding judicial or other governmental order or as otherwise required by law, provided that the receiving Party (i) gives the disclosing Party reasonable notice prior to such disclosure (except to the extent receiving Party’s compliance with the foregoing would cause it to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) uses commercially reasonable efforts to assist the other Party in its efforts to obtain confidential treatment for any Confidential Information to be so disclosed.
8.3 Subscriber has no obligation to give Massive any suggestions, comments or other feedback relating to the Service (“Feedback”). Massive may use and include any Feedback that Subscriber voluntarily provides to improve the Service, the Software, other related technologies or Documentation. Accordingly, if Subscriber provides Feedback, Subscriber agrees that Massive and all its licensees may freely use, reproduce, license, distribute, implement and otherwise commercialize the Feedback in the Service, Software, other related technologies or Documentation without the payment of any additional consideration thereof to Subscriber.
9.1 As between the Parties, Subscriber shall have all responsibility (and Massive have none) for ensuring Subscriber’s hardware and software environments and those of its Customers are compatible with the Service and for all of its costs of accessing and interacting with the Service.
9.2 Subscriber’s use of the Service shall at all times be at its own risk. Subscriber understands that Massive does not warrant that the Service shall operate continuously or in an error-free manner. Some Service users may experience less availability, greater latency and/or other forms of diminished performance when one or more of the third-party servers Massive uses to operate the Service go off-line to receive emergency maintenance or suffer an outage. Massive does not guarantee the duration of any sticky session (the period in which a single IP connection will be held open to service multiple requests).
9.3 Subscriber understands that IP addresses used in the provision of the Service may constitute personal and confidential information, and any unauthorized use of such information may constitute a breach of applicable law and/or third-party rights.
10. Representations and Warranties; Disclaimers
10.1 Massive represents and warrants to Subscriber that Massive possesses all of the rights necessary to enter into this Agreement, to provide Subscriber the Service and to grant Subscriber the rights and licenses granted in Section 2.1.
10.2 Subscriber represents, warrants and covenants that, in addition to its obligations under this Agreement,
10.2.1 Subscriber shall comply with all laws and regulations that pertain to its performance of its obligations hereunder and its use of the Service, Service Functionality and Documentation supplied hereunder, and not use the Service in any manner or for any purpose other than to serve a Licensed Use; and
10.2.2 Subscriber shall not, and shall not assist, encourage, or enable others (including any Customer) to (i) cause any network resource to become unavailable to its users, including Denial-of-Service (DoS) or Distributed Denial-of-Service (DDoS) attacks; (ii) use the Service to engage in harmful or destructive activities, including distribution of cracking, warez, ROM, viruses, adware, worms, trojan horses, malware, spyware or any other similar malicious activities and products or any other computer code, files or programs designed to interrupt, hijack, destroy, limit or adversely affect the functionality of any computer software, hardware, network or telecommunications equipment; (iii) distribute any unlawful content or encourage any unlawful activity; (iv) use the Service (A) to take unlawful or unethical advantage of minors, for example, by accessing or distributing child pornography or (B) to take other actions that could be harmful to minors, (v) use the Service in a way that imposes an unreasonable or disproportionately large load on the Service or (vi) cause any damage or service disruption to any third-party computer or service.
10.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS PROVIDED IN SECTION 10.1. MASSIVE PROVIDES THE SERVICE, SERVICE FUNCTIONALITY, APIs AND DOCUMENTATION “AS IS” AND “AS AVAILABLE” AND WITH ALL FAULTS, AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICE WILL MEET ANY SUBSCRIBER REQUIREMENTS.
11.1 At Massive’s written request, Subscriber agrees to defend and hold harmless Massive at Subscriber’s expense in a lawsuit, judicial action, or similar proceeding, and pay the amount of any adverse final judgment (or settlement to which Subscriber consents) and reasonable attorney fees and costs expended defending Massive from such lawsuit, judicial action, or similar proceeding, for any third-party claim(s) which (i) seek remedies for the breach, infringement or misappropriation any right or interest held by a third-party in any content that has been routed, accessed or distributed, to any extent through, use of the Service by Subscriber or any Customer or (ii) arose or resulted from Subscriber’s breach of the warranties and covenants set forth in Section 10.2.
11.2 Massive shall promptly notify Subscriber in writing of any claim against Massive which falls within the scope of Section 11.1, provided, however, that any delay in providing such notice shall not relieve Subscriber of any of its obligations which are not prejudiced by that delay. In no event shall Subscriber enter into any settlement or agree to any disposition of the indemnified claim(s), without the prior written consent of Massive, that contains an admission of liability or wrongdoing on the part of Massive, otherwise prejudices any right of Massive, or imposes a material obligation on Massive that is not wholly discharged by Subscriber.
12. Limitation of Liability
EXCLUDING SUBSCRIBER’S OBLIGATIONS UNDER SECTION 11.1 AND INJURIES RESULTING FROM BREACHES OF SECTIONS 2.1, 2.2 OR 8.1,
(I) NEITHER PARTY (NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES) SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OVERHEAD COSTS, AND DAMAGES ARISING OUT OF COMMITMENTS TO SUBCONTRACTORS OR PERSONAL SERVICE CONTRACTS. THE FOREGOING EXCLUSION SHALL APPLY EVEN IF THE LIABLE PARTY WAS AWARE OF, OR HAS BEEN ADVISED OF, THE POSSIBILITY OF SUCH DAMAGES; ANDTHE TOTAL CUMULATIVE LIABILITY OF EITHER MASSIVE OR SUBSCRIBER, IF ANY, ARISING OUT OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR ARISING FROM AN EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, OR STRICT OR PRODUCT LIABILITY, SHALL BE LIMITED TO THE AMOUNT EQUAL TO THE TOTAL AMOUNT OF USE FEES PAID BY SUBSCRIBER TO MASSIVE HEREUNDER IN THE SIX (6) MONTHLY BILLING PERIODS THAT PRECEDED THE INITIAL EVENT WHICH GAVE RISE TO THE LIABLE PARTY’S LIABILITY.
(II) THE TOTAL CUMULATIVE LIABILITY OF EITHER MASSIVE OR SUBSCRIBER, IF ANY, ARISING OUT OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR ARISING FROM AN EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, OR STRICT OR PRODUCT LIABILITY, SHALL BE LIMITED TO THE AMOUNT EQUAL TO THE TOTAL AMOUNT OF USE FEES PAID BY SUBSCRIBER TO MASSIVE HEREUNDER IN THE SIX (6) MONTHLY BILLING PERIODS THAT PRECEDED THE INITIAL EVENT WHICH GAVE RISE TO THE LIABLE PARTY’S LIABILITY.
THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Term, Suspension, and Termination
13.1. The term of this Agreement shall commence upon the Effective Date and, unless terminated as provided herein, shall remain in effect until the date on which the deactivation of all of Subscriber’s implementations of the Service has been completed (“Term”).
13.2 Massive may, at any time and in its sole discretion, suspend its provision of any and all Subscriber implementations of the Service if Massive reasonably believes that: (i) Subscriber use of the Service (a) is in breach of this Agreement or any applicable law or regulation or might subject Massive to liability to a third-party, (b) poses a security risk to the Service, the hardware on which it is operated or any Software or to any third-party, (c) may adversely impact the operation of the Service, the hardware on which it is operated or any Software or another Massive service, (d) may be fraudulent or (e) may infringe any third-party rights (including, but not limited to, intellectual property rights, content ownership rights, and privacy rights) or (ii) Customer becomes five (5) days delinquent in its payment of undisputed, invoiced Use Fees.
13.3 This Agreement (and Massive’s provision of every implementation of the Service) may be terminated at any time
13.3.1 by written agreement of the Parties;
13.3.2 by Massive fifteen (15) days after provision of the Service has been suspended pursuant to Section 13.2, in the event that Subscriber has not cured the circumstances that resulted in that suspension by then;
13.3.3 by either Party thirty (30) days after that Party has provided the other Party (the “Breaching Party”) notice that the Breaching Party has breached one or more of its obligations under this Agreement, in the event that the Breaching Party has not cured the breach(es) identified in that notice by then; or
13.3.4 by Massive thirty (30) days or more after that Massive has notified Subscriber that Massive is terminating its provision of the Service.
13.4 Upon the expiration or termination of this Agreement pursuant to Section 13.3, Massive shall not be obligated to maintain a copy of any data pertaining to Subscriber’s use of the Service.
13.5 Sections 2.4, 2.5, 4.1 – 4.5, and 7.1 –11.2 , Articles 12 and 15 – 21, and this Section 13.5 shall survive the expiration or termination of this Agreement or any Order.
14. Force Majeure
Neither Party shall be considered in default in performance of its obligations should the execution thereof be delayed by Force Majeure. “Force Majeure” means an event that is beyond the reasonable control, not reasonably preventable, and without the fault or negligence of the Party who has suffered the relevant event(s) which prevents that Party from performing its obligations hereunder in a timely manner, including, but not be limited to, hostilities, restraint of rulers or peoples, revolution, civil commotion or riots, strike, fire, flood, earthquake, explosion, lack of or failure of transportation facilities, any law, proclamation, regulation or ordinance, demand or requirement of any government or governmental agency having or claiming to have jurisdiction over the work or over the parties hereto or any act of God or any act of government.
15. Governing Law; Dispute Resolution
15.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to conflict of laws principles and excluding application of the United Nations Convention on the International Sale of Goods, except that U.S. federal law shall govern in matters of intellectual property.
15.2 Venue over all disputes arising under or related to the formation, interpretation, application or performance of this Agreement shall be exclusively in the state and federal courts within the city of Miami, Florida. Except as provided in Section 16, any dispute arising out of or relating to this Agreement or the breach thereof that cannot be settled through negotiation may first be mediated by the parties. The costs of such mediation shall be shared equally between the parties, but each Party shall be responsible for its own fees and expenses associated with such mediation. If mediation is unsuccessful, an aggrieved Party may pursue any legal or equitable remedy available at law or equity in any court of competent jurisdiction located in the United States.
16. Equitable Relief
Subscriber agrees that any breach of this Agreement by Subscriber may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, Subscriber may have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction. Nothing herein shall foreclose Subscriber from seeking and obtaining such relief on a temporary or interim basis from any court having jurisdiction over such matters.
17. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties. Subscriber may not assign any of the rights granted hereunder or its interest in this Agreement without the prior written consent of Massive, which such consent shall not be unreasonably withheld. Any assignment attempted in violation of the previous sentence shall be null and void.
Any notices or consents required or permitted by this Agreement will be in writing and delivered in person or by registered or certified mail, postage prepaid, return receipt requested, or by a reputable courier delivery service, or scanned attachment to email during regular business hours (provided that a confirmation copy follows any other method of delivery permitted under this Section 18).The foregoing addresses for the delivery of notice may be changed by written notice to the other Party. Subscriber address shall be provided on the Statement of Work or during a registration process on Massive’s signup portal. Massive can be contacted at:
Massive Computing, Inc.
25 SE 2nd Avenue
Suite 550 PMB 271
Miami, FL 33131
19. No Third-Party Beneficiaries
The parties intend that there shall not be any third-party beneficiaries with respect to this Agreement. This Agreement inures only to the benefit of, and is binding only upon, the parties and their respective successors and permitted assigns, and does not confer any right or privilege upon any third-party.
20. Entire Agreement
This Agreement does not constitute an offer by Massive and it shall not be effective until signed by both parties. All schedules and exhibits attached hereto are incorporated herein by reference. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and merges all prior and contemporaneous communications. This Agreement shall not be modified except as provided in Article 1 or by a written agreement dated subsequent to the Effective Date and signed by an authorized representative of Subscriber and Massive. Should Subscriber issue any purchase orders in connection with the purchase made under this Agreement, any terms and conditions set forth in each such purchase order are hereby rejected and the indicated transaction shall be governed by the terms and conditions set forth herein. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same Agreement. Delivery of an executed counterpart of this Agreement by e-signature service, facsimile transmission or as an attachment to an email is deemed effective as delivery of an originally executed counterpart of this Agreement.
Section references in these definitions refer to sections of these Further Terms and Conditions.
21.1 “Affiliate” means any entity that Controls, is Controlled by, or is under common control with another entity.
21.2 “API” means an application programming interface.
21.3 “Controlled” and the related term “Controls” mean a relationship in which a separate entity: (i) owns or controls, directly or indirectly, at least fifty percent (50%) of the stock, partnership shares, membership interests or other equity interest in an entity having the right to vote for or appoint directors thereto, and/or (ii) has the right to determine management direction, whether through having a majority representation on a board of directors of a corporation, by contract or otherwise.
21.4 “Customer” means a person or entity who is a purchaser of a Subscriber Service.
21.5 “Customer User” means an individual who qualifies as a licensed user of a Subscriber Service which incorporates or otherwise utilizes the Service, under the Subscriber-Customer agreement under which that Subscriber Service is provided to the Customer.
21.6 “Documentation” means any documentation, specifications, manuals, or written instructions provided for the installation, operation or use of the Service.
21.7 “Enhancement” means any revision and/or addition to the Software which enables the Service to continue to provide the purchased Service Functionality as relevant operating environments evolve, improves the accuracy or efficiency of current Service Functionality or adds new functions, features or capabilities to the purchased Service Functionality.
21.8 “Interest” shall mean interest at the rate which is the lesser of one percent (1%) per month or the maximum interest rate permitted by the applicable law.
21.9 “Order“ means the agreement or order under which Subscriber agrees to purchase a particular implementation of the Service.
21.10 "Personal Information" means any information that Massive collects, receives or obtains, from or on behalf of Subscriber, any Subscriber User or Customer User that identifies or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, such as the individual's name, address, social security number, etc., and any other information relating to an identified or identifiable individual.
21.11 “Representative” means an employee, consultant or contractor of a Party or one of its Affiliates who the Party has authorized to take the relevant actions.
21.12 “Service Functionality” means the current features and functionality contained in or provided by the Service when it is used in accordance with its user Documentation.
21.13 “Service Operation Data” means any data and information describing the operation of the Service generally or any particular implementation of the Service (e.g., availability, latency, error rate).
21.14 “Software” means the software and other technology used by Massive to provide the Service, including all future versions, releases, and Enhancements thereto placed into commercial service by Massive.
21.15 "Subscriber User” means a Representative of Subscriber who Subscriber has authorized to access, monitor, manage and/or utilize the Service.