Master Service Agreement (MSA)

(the "Agreement")

Published on: July, 2023

VersionPublished on
Master Service Agreement (Currently viewed)
July, 2023
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Apify Technologies s.r.o., ID No.: 04788290, with its registered seat at Vodičkova 704/36, Nové Město, 110 00 Prague 1, Czech Republic, registered in the Commercial Register maintained by the Municipal Court in Prague under File No. C 253224 ("Apify" or the "Provider") and you (hereinafter referred to as “Customer”) and (Apify and the Customer together as the "Parties" and each of them individually as the "Party").

  1. Preamble
    1. The Provider develops, owns and runs software that enables automation of manual activities and processes on internet websites; the software is provided by Apify to third parties as a service via the Platform (as defined below).
    2. The Customer is a business entity or a company and wishes to use the Platform and the Services (as defined below) within the scope of its business activities.
  2. Definitions
    1. Any capitalized terms not defined herein shall have the meanings ascribed to them in the Terms.
    2. "Account Manager" means the contact person representing Apify designated as such in an Order or any other person replacing the first account manager after prior written notification of such change to the Customer.
    3. "Actor" means a software program or application running on the Platform.
    4. "Bug" means an error in the Actor's source code or in the Platform that causes any incorrect functionality of the Actor in deviation from the Specification, unless the incorrect functionality is caused by the Environment.
    5. "Communication Channels" means any of the communication channels which the Parties agreed to use for their communication in relation to the Services.
    6. "Contact Person" means any contact person representing the Customer designated as such in an Order and/or this Agreement or any other person replacing any previous contact person after prior written notification of such change to the Provider.
    7. "Credit" means a credit against the Price payable in the future.
    8. "Custom Actor" means an Actor that's custom-made or configured for the Customer according to the Specification.
    9. "Custom Actor Results" mean the results of the actions the Custom Actor was programmed or configured to complete.
    10. "Environment" means any factor relevant to the Services that is outside Apify's control, i.e. the input from the Customer, target websites, applications, API, Customer's infrastructure, external data and any other entity that the Actor interacts with during its operation, which is not part of Platform or the Actors themselves.
    11. "Force Majeure" means any cause preventing performance of an obligation which is beyond the control of either Party hereto, including without limitation, fire, flood, sabotage, embargo, strike, explosion, accident, riot, acts of any governmental authority and acts of nature.
    12. "Handover" means the process of handing over the completed Services, or a part thereof, to the Customer in accordance with clause 7.2.
    13. "Order" means any written order for work executed between the Parties on or about the date of this Agreement or at any time during the existence of this Agreement, including, but not limited to an Order Form or a Statement of Work.
    14. "Platform" means Apify platform accessible at and
    15. "Price" means the price agreed in an Order and may consist of, among other things, "Development Fee", "Platform Fee" and "SLA Fee", each as set out in the Order.
    16. "Service Level Agreement" means any service level agreement that may be concluded between the Parties in relation to the Services.
    17. "Services" means the services to be provided by Apify under this Agreement specified in any Order.
    18. "Specification" means the specification of the Services agreed in an Order.
    19. "Terms" means Apify's Terms and Conditions published at
    20. "Warranty" means Apify's obligation under clause 8 below.
  3. Subject-Matter of the Agreement
    1. Apify shall provide to the Customer the Services during the term agreed in the respective Order. The Customer shall pay to Apify for the Services provided under the Agreement the Price under the conditions specified in the respective Order and in clause 4 below.
    2. This Agreement forms an integral part of the contract entered into by and between Apify and the Customer, along with the Order(s) and the Terms.
  4. Payment Conditions
    1. Unless agreed otherwise in any Order, the Price shall be paid by the Customer to the Provider in the U.S. Dollars (USD) and shall be increased by the value added tax (VAT) or other similar tax pursuant to relevant legal regulations, if applicable.
    2. Unless agreed otherwise in any Order, the Customer shall pay the Price always in advance for the next (upcoming) Billing Period (as defined in the Terms) throughout the whole term of the Agreement. The Customer shall pay the Price based on an electronic invoice issued by Apify. The Price shall be payable pursuant to the invoice within 14 days of the delivery of the invoice to the Customer, unless agreed otherwise in any Order.
    3. If any payment under this Agreement is not paid on its due date, Apify is entitled to a late payment penalty fee equal to 0.5% of the amount overdue for each day outstanding until paid. The Customer shall pay the late payment penalty fee promptly after Apify requests that the Customer pays it in accordance with this clause 4.3.
    4. The Customer may be awarded Credits by Apify. Credits (a) do not apply to any other amounts Customer may owe Apify than Price, (b) apply to future invoices only, and (c) are forfeited upon termination of this Agreement. Apify is not required to issue refunds or to make payments against Credits under any circumstances, including termination of the Agreement.
  5. Rights and Obligations of the Parties
    1. Apify shall provide the Services under this Agreement in a timely, competent, and professional manner.
    2. The Customer shall create conditions and provide cooperation necessary for Apify to provide the Services and complete individual tasks within the Services in accordance with the instructions of the Customer or other terms specifically agreed between the Parties.
    3. If, as a result of any failure by the Customer to perform any of its obligations set forth in this Agreement, any Order on a timely basis, the Provider is unable to timely meet any deadline or time limit under any Order, either at all or without incurring additional costs, the Provider may in its discretion unilaterally extend such deadline or time limit for up to the length of the Customer's delay.
    4. The Customer represents and warrants to Apify that it has acquired all the necessary authorizations, licenses, and permits and satisfied all legal requirements for the Actors to execute the Customer's instructions, including, but not limited to, valid credentials, intellectual property licenses and/or personal data processing consents, where applicable.
    5. For the term of this Agreement and for the period of 12 months thereafter neither party shall either directly or indirectly recruit, solicit or entice away (or seek or attempt to entice away) from employment or similar relationship of the other party any person employed or contracted by such other party in relation to the provision or receipt of the Services, without a prior written consent of such other party. Breach of this clause 3.5 shall be considered as substantial breach of this Agreement and the breaching Party shall pay to the other party a contractual penalty in the amount of 100,000 USD.
    6. Further rights and obligations of the Parties not specifically addressed in this Agreement are governed by the Terms, unless specifically agreed otherwise between the Parties. The Customer acknowledges and declares that the Customer was informed of the Terms prior signing this Agreement and agrees to be bound by the Terms. Apify may change and/or amend the Terms unilaterally from time to time, including issuing entirely new versions of the Terms. Any such changes, amendments of the Terms or issuing new version of the Terms shall be communicated to the Customer via email to the address registered on the Platform.
  6. Provision of Services
    1. The Customer acknowledges that the Provider may from time to time change the personnel working on delivering the Services in the Provider's sole discretion.
    2. The Provider may from time to time in its discretion engage third parties to perform (parts of) the Services (each, a "Subcontractor"). The Provider will: (a) remain primarily responsible for performance of its obligations under the Agreement; (b) be responsible and liable for the acts and omissions of each Subcontractor in the scope of its performing any Services to the same extent as if such acts or omissions were by the Provider or its employees; (c) be responsible for all fees and expenses payable to any Subcontractor; and (d) ensures that the Subcontractor is bound by a contractual confidentiality obligation similar to the obligations set out in clause 12.
  7. Custom Actors
    1. This clause 7 only applies if the Services include Custom Actor(s). If the Services do not include any Custom Actor, this clause 7 shall be disregarded.
    2. Handover, Testing and Acceptance
      1. Once the work on a Custom Actor is complete and/or the first Custom Actor Results are available, Apify shall notify the Customer in writing, and allow the Customer to inspect and test the quality of the completed Services.
      2. The Customer has 14 days (unless agreed otherwise) to inspect and test the Custom Actor and the Custom Actor Results (the "Acceptance Period"). During the Acceptance Period the Customer can either (i) confirm the acceptance of the Custom Actor in writing; or (ii) notify Apify in writing of any material deviations of the Custom Actor from the Specification.
      3. If any material deviation of the Custom Actor from the Specification is notified in accordance with clause 7.1 above, Apify shall, within 14 days of the notification by the Customer, remedy the issue and/or make changes to the Custom Actor to ensure its compliance with the Specification.
      4. If no issues are notified by the Customer as of the end of the Acceptance Period, the Custom Actor shall be deemed to have been accepted by the Customer.
      5. Once a Custom Actor is accepted, it shall be deemed to have been delivered according to the Specification. Any further requested changes to that Custom Actor, if any, shall be considered as additional works.
    3. Maintenance
      Unless agreed otherwise by the Parties in writing, for example in a Service Level Agreement, Apify will not make any updates or changes to the Custom Actor(s), other than under clause 8 below.
  8. Warranty
    1. If at any time during the period of 3 months from:
      1. the acceptance under clause 7.2, in relation to the Custom Actors, or
      2. the effective date agreed in the respective Order, in relation to any other Actors other than Custom Actors,
      the Actor demonstrates any incorrect functionality caused by Bugs, Apify will upon a written Customer's request make any changes to that Actor necessary to remove any such Bugs.
    2. The Warranty excludes any incorrect functionality of the Actors caused by changes to the Environment.
  9. License
    1. In order to use the Platform and the Services, including its outcomes (e.g., the Actors created for the Customer) under the terms and conditions set out in this Agreement (including the Terms), Apify grants to the Customer, subject to the payment of the Price by the Customer, a non-exclusive, non-assignable, non-transferable and revocable license entitling the Customer to use the Platform and the Services, including its outcomes, in accordance with their ordinary purpose as determined by Apify, without any territorial restriction (i.e., worldwide license) and for the entire duration of this Agreement.
    2. In addition to the license above, if the Services include creation of Custom Actor(s), Apify grants to the Customer, subject to the payment of the Price by the Customer, a non-exclusive, non-assignable, non-transferable and revocable license without territorial restriction (i.e. worldwide license) to use, modify and adjust the source code of the Custom Actor(s) provided to the Customer.
    3. The Customer expressly acknowledges and agrees that Apify remains the exclusive holder of all other rights relating to the Platform and the Services and that the Platform and the Services are protected by copyright laws and other related regulations.
    4. The Customer may not assign, transfer, grant or otherwise provide the license as a whole or any authorizations forming a part of the license wholly or partially to any third person (e.g., the Customer may not provide any sublicense) and neither may the Customer assign any rights and obligations arising from the license to any third party.
    5. The Customer acknowledges and agrees that, other than the license as granted under this Agreement, the Customer does not acquire any intellectual property or other proprietary rights, including patents, copyrights, trademarks (both registered and not registered), industrial designs, moral rights, trade secrets or confidential information, mask work rights, service marks, design rights, registered designs, topography rights, database rights, rights of confidence, know-how and any and all other similar intellectual property or proprietary rights anywhere in the world, whether or not registered or statutory and including, without limitation, all applications and registrations with respect to the foregoing, in or relating to the Platform and Services or its outcomes.
    6. The Customer further undertakes to:
      1. comply with all legal regulations related to its activities and the use of the Services and the Platform;
      2. use the Services and the Platform only in a manner that complies with all applicable laws in the jurisdiction, in which the Provider uses them, including but not limited to, applicable restrictions concerning copyright and other intellectual property rights. In this connection, but without being limited to, any use of the Services and the Platform must not violate any sanctions or embargoes imposed on countries by (i) the Czech Republic, (ii) the European Union, (iii) the United States of America, or (iv) the United Nations;
      3. use the Services and the Platform only in a manner that shall not violate the Providers rights or any third-party rights;
      4. except as permitted under clause 9.2 of this Agreement, refrain from modifying, altering, processing, reverse-engineering or otherwise interfering with the Services and the Platform, any of its part including in particular any source codes;
      5. refrain from any conduct (including allowing any third party to do so), that would cause building a similar or competitive product of the Services or the Platform;
      6. implement any and all security measures to ensure proper functioning of the Services and the Platform (including adequate technical, administrative and physical safeguards) and implement sufficient security measures to prevent any unauthorized access or use of the Services or the Platform by third parties; and
      7. inform the Provider about any unauthorized use of or unauthorized access to the Services or the Platform.
    7. Other rights and obligations of the Parties regarding the license shall be governed by the Terms.
    8. Any breach of this clause 9 or the Terms in connection with the license by the Customer, in particular (but not limited to) violation of the license conditions by the Customer, shall be considered as substantial breach of this Agreement entitling Apify to revoke the license and terminate the Agreement in accordance with clause 11.1 of this Agreement.
    9. The Customer acknowledges that the Services may contain open source components. For purposes of this Agreement, "open source components" shall mean any software components that are subject to any open source copyright license agreement, including software available under the Apache Licenses, BSD licenses, MIT licenses or any other license that is approved by the Open Source Initiative.
  10. Term and Renewal
    1. This Agreement shall become effective upon its execution by both Parties and shall remain in effect for the duration of any active Order and for a period of 3 months thereafter. In the event that no effective Orders exist between the Parties for a consecutive three-month period, this Agreement shall automatically terminate.
    2. Unless agreed otherwise, each Order is entered into for a definite term of 12 months starting from the date of signing of that Order by both Parties.
    3. Each Order shall be automatically renewed for the same term and on the same terms and conditions under which it was concluded, unless a Party notifies the other Party in writing at least 3 months before the expiration of the term of the Order that it does not wish this Order to be renewed.
    4. Unless agreed otherwise, each Service Level Agreement shall be entered into for the same term as the respective Order it pertains to, and shall be renewed on the same terms as that Order.
  11. Termination of the Orders
    1. Each Party may terminate any Order along with this Agreement and any Service Level Agreements, if applicable, by a written notice delivered to the other Party in case of a substantial breach of this Agreement by the other Party. A breach of this Agreement is considered substantial particularly (but not exclusively) if:
      1. the Customer is in delay with any payment of the Price (or its part) under this Agreement for more than 1 month; or
      2. Apify fails to provide the Services duly in an agreed scope and does not remedy such a situation within 1 month of receiving a written notice of such failure from the Customer.
    2. Based on the termination notice pursuant to clause 11.1 above, the Order along with this Agreement and any Service Level Agreements, if applicable, shall terminate with the effect as of delivery of such termination notice to the breaching Party. However, Apify shall not be obliged to refund to the Customer any Price already paid by the Customer for the Billing Period in which the termination notice was delivered.
    3. If an Order has been concluded for an indefinite term, then each Party may terminate that Order for any reason at any time by a written notice delivered to the other Party. In such a case, the Order shall terminate (i.e., the termination of the Order shall take effect) upon expiry of the Billing Period in which the written notice of termination is delivered to the other Party. The Customer shall not be entitled to any refund of the Price already paid for the last Billing Period of the duration of that Order. To avoid any doubt (i) the Customer is obliged to pay the Price for any and every Billing Period until the termination of that Order takes effect, (ii) the Customer shall continue to have access to the Platform and to the Services provided by the Provider until the termination of that Order takes effect.
    4. If an Order has been concluded for a definite term, the Customer may not terminate that Order for convenience (for any reason) prior the end of the agreed term of that Order, unless the Customer pays the Price in total for Services for the whole remaining term (all Billing Periods) of that Order, or such Price is already paid prior delivery of a written notice of termination to the Provider; in such a case the Order terminates upon delivery of the written notice of termination or upon payment of the Price for the whole remaining term of that Order (whichever occurs later).
  12. Mutual Confidentiality
    1. Each Party shall keep in strict confidence any and all Confidential Information (as defined in clause 12.2 below) relating to the other Party which is made available to the respective Party or to which the Party has access under, in connection with or pursuant to this Agreement.
    2. For the purposes of this Agreement, the "Confidential Information" shall mean any information or data provided, disclosed or made available by one Party (the "Disclosing Party") to the other Party (the "Receiving Party") relating directly or indirectly to the Disclosing Party. Confidential Information shall include particularly (but not exclusively) commercial, financial, marketing, business, technical, legal or other data relating to the Disclosing Party, its commercial activities, intentions, plans, products or services (including planned products and services or products and services under development), business partners or customers, including know-how, trade secrets, intellectual property, inventions, patents, patent applications, specifications, algorithms, calculations, formulae, processes, business methods, diagrams, drawings, sketches, models, equipment, demonstrations, mock-ups, software, software source comments, procurement and purchasing requirements, customer lists, information about investors, employees, business and contractual relationships, business forecasts, sales and merchandising data, and marketing plans and all other information of the Disclosing Party or relating to the Disclosing Party which is not publicly available. Information shall be considered as Confidential Information regardless of the means by or form in which it was disclosed and regardless of whether such information was labeled or marked as confidential.
    3. The Receiving Party shall maintain confidential any and all Confidential Information and protect the Confidential Information with at least such care as the Receiving Party protects its own confidential information, however with no less than with a usual and reasonable standard of care. Particularly, the Receiving Party shall:
      1. not disclose, make available or accessible any Confidential Information to any third party without the Disclosing Party’s prior written consent;
      2. use such Confidential Information only for the purpose of this Agreement and fulfilling the Receiving Party’s duties under this Agreement and only to the necessary extent;
      3. copy or reproduce Confidential Information only to the extent required to accomplish the purpose of this Agreement and to fulfill the Receiving Party’s duties under this Agreement;
      4. not reverse engineer, decompile or disassemble any software disclosed;
      5. not directly or indirectly send, export or transmit any Confidential Information to any country to which such export or transmission is restricted by legal regulations;
      6. disclose Confidential Information to the Receiving Party’s officers, directors, employees, advisors, or contractors, only if necessary and only to the extent necessary for the purpose of this Agreement and to fulfill the Receiving Party’s duties under this Agreement, provided that such persons are subject to statutory or contractual confidentiality obligation similar to the obligation set out in this clause 12; and
      7. promptly provide the Disclosing Party with a notice of any actual or threatened breach of confidentiality of any Confidential Information.
    4. The confidentiality obligations under this Agreement shall not apply to information that:
      1. is or becomes publicly known other than by breach of this Agreement (particularly the confidentiality obligation set out in this Agreement) or breach of any other confidentiality obligation;
      2. the Receiving Party independently knows at the time of receiving such information without violating and without being subject to any confidentiality obligation, and the Receiving Party can demonstrate this by reasonable evidence;
      3. a third party provides such information to the Receiving Party without breaching any obligation of confidentiality and without restriction on disclosure;
      4. the Receiving Party has independently developed without using the Disclosing Party’s Confidential Information or breaching this Agreement (particularly the confidentiality obligation set out in this Agreement); or
      5. the Disclosing Party gives written permission to the Receiving Party to disclose the Confidential Information.
    5. In addition, the Receiving Party may disclose the Confidential Information if required by law, court order or order of the respective competent authority (administrative body); in such a situation, the Receiving Party will request prior written consent from the Disclosing Party only where possible having regard to all the circumstances; otherwise the Receiving Party will inform the Disclosing Party about such disclosure without undue delay after the disclosure of Confidential Information to the competent court or authority. However, the Receiving Party must always identify and label such information as confidential when disclosing the information.
    6. The Confidential Information shall remain the Disclosing Party’s property. Confidential Information, any documents, data carriers or materials containing the Confidential information and any copies thereof shall be returned or destroyed upon Disclosing Party’s option, upon written request of the Disclosing Party in case of termination of this Agreement or when the Receiving Party’s need for such Confidential Information expires. The Confidential Information is provided "as is" without any warranty express or implied.
    7. The Customer undertakes not to create, organize or participate in any derivative works, analogous works or copies of the Platform or the Services or any part thereof, or to provide to third parties, whether in return for payment or free of charge, identical, derivative or similar services.
    8. This clause 12 shall survive the termination of this Agreement, regardless of the reason for termination.
  13. Notices and Communication

    Any communication or notification under this Agreement will be deemed effective only if it is made via the Communication Channel and addressed to the Account Manager or the Contact Person, as applicable.

  14. Final Provisions
    1. The Terms form an integral part of this Agreement. In case of a conflict between this Agreement and the Terms, this Agreement shall prevail. In case of a conflict between this Agreement and an Order, the Order shall prevail.
    2. This Agreement as well as any rights and obligations arising from or related with the Agreement shall be governed by the laws of the Czech Republic, including particularly by the Act No. 89/2012 Coll., the Civil Code, as amended, and excluding both the conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG). The parties agree that commercial practices do not take precedence over any provisions of the law, even over provisions of the law that do not have coercive effects.
    3. The Parties shall use their best efforts to resolve, in good faith, attending to their mutual interests, any dispute, conflict, question, doubt, or divergence of any nature that may arise in relation to or under this Agreement and/or any Order. If any such dispute arises, any Party may notify the other Party of its intention to initiate the amicable resolution of a dispute (a "Dispute Notice"). Following a Dispute Notice delivery, each Party may nominate one or more representatives who may meet together with the other Party's nominated representatives in order to resolve such dispute by means of amicable discussions in good faith. The meeting between the Parties shall be set within 15 days from the delivery of the Dispute Notice from one Party to the other Party. If the dispute is not resolved amicably within 30 days of a Dispute Notice, it may be resolved as provided for below.
    4. Any disputes arising between the Parties from this Agreement or in connection with the Agreement shall be subject to the exclusive jurisdiction of the competent courts of the Czech Republic determined according to the registered seat of the Provider.
    5. The Customer has no right to assign or otherwise transfer its rights or obligations under this Agreement to a third party without the prior written consent of the Provider.
    6. The Customer shall pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by Apify, whether under this Agreement, applicable law, or otherwise.
    7. Except for the Customer's payment obligations, delay in performance or non-performance of any obligation contained herein shall be excused to the extent such failure or non-performance is caused by Force Majeure. A Party affected by Force Majeure shall promptly provide notice to the other, explaining the nature and expected duration thereof, and shall act diligently to remedy the interruption or delay if it is reasonably capable of being remedied.
    8. Any amendments to this Agreement must be made in writing and must be signed by both Parties.
    9. In the event that any provision of this Agreement is or becomes or becomes invalid, ineffective or unenforceable in the future or if it is found to be by a competent public authority, other provisions of this Agreement shall remain in force and effect if the circumstances in which it was concluded do not imply that they cannot be separated from the other content of this Agreement. The Parties undertake to replace an invalid, ineffective or unenforceable provision of this Agreement with a provision that is, to the maximum extent possible, consistent in its content and purpose with the original provision and this Agreement as a whole.