Master Service Agreement

(the "Agreement")

  1. Subject-Matter of the Agreement
    1. Apify Technologies s.r.o., ID No.: 04788290, with its registered seat at Štěpánská 704/61, 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”) develops, owns and runs a software enabling automating manual activities and processes on internet websites; the software is provided by Apify to third parties as a service via Apify platform accessible at apify.com (the “Platform”).
    2. The Customer is an entrepreneur and wishes to use the Platform and the Services (as defined below) within the scope of its business activities.
    3. Starting on the Effective Date, Apify shall provide to the Customer services specified in the Order Form which may consist in particular in allowing the Customer to use the Platform and creating the Actors (as defined by Apify’s Terms and Conditions published at https://apify.com/terms-of-use; the “Terms”) for the Customer pursuant to specification and for the use case(s) agreed between the Parties (the “Services”). The Services shall be provided by Apify during the Term agreed in the Order Form. The Customer shall pay to Apify for the Services provided under the Agreement the Price (as defined below) in the amounts and under the conditions specified in the Order Form and in Sections 2 and 3 below.
    4. Any capitalized terms not defined herein shall have the meanings ascribed to them in the Order Form or the Terms.
    5. This Agreement forms an integral part of the contract entered into by and between Apify and the Customer, along with the Order Form and the Terms.
  2. Payment Conditions
    1. Unless agreed otherwise in the Order Form, the Price shall be paid by the Customer to the Provider in 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 the Order Form, the Customer shall pay the Price always in advance for the next (upcoming) Billing Period 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 15 days of the delivery of the invoice to the Customer.
  3. Rights and Obligations of the Parties
    1. Apify is obliged to provide the Services under this Agreement in a timely, competent, and professional manner.
    2. The Customer is obliged to 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. 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.
    4. The Customer shall not disclose or otherwise make available to public or third parties any data, outputs, or results collected or produced by the Actors created by Apify for the provision of the Services under this Agreement, with the exception of its Group Companies. For the purposes of this Agreement, the Group Companies are exclusively any Wholly-owned Subsidiary of the Customer, any company of which the Customer is a Wholly-owned Subsidiary ( the “Parent Company”) and any other Wholly-owned Subsidiary of the same Parent Company. Under this Agreement, the Wholly-owned Subsidiary is a corporation with 90% or more shares held by another corporation.
    5. 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 version 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.
  4. 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. The Customer expressly acknowledges and agrees that Apify remains the exclusive holder of all rights relating to the Platform and the Services and that the Platform and the Services are protected by copyright laws and other related regulations.
    3. The Customer may not assign, transfer, grant or otherwise provide the license as a whole or any authorisations 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.
    4. 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.
    5. 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 Provider’s rights or any third-party rights;
      4. refrain from modifying, altering, processing, 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.
    6. Other rights and obligations of the Parties regarding the license shall be governed by the Terms.
    7. Any breach of this Section 4 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 5.1 of this Agreement.
  5. Termination of the Agreement
    1. Each Party may terminate this Agreement 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 situation within 1 month of receiving a written notice of such failure from the Customer.
    2. Based on the termination notice pursuant to Clause 5.1 above, the Agreement 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. In case the Agreement has been concluded for an indefinite period time, then each Party may terminate the Agreement for any reason at any time by a written notice delivered to the other Party. In such a case, the Agreement shall terminate (i.e., the termination of the Agreement 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 the Agreement. To avoid any doubt (i) the Customer is obliged to pay the Price for any and every Billing Period until the termination of the Agreement 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 the Agreement takes effect.
  6. Confidentiality
    1. Each Party shall keep in strict confidence any and all Confidential Information (as defined in Clause 6.2 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 labelled 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 fulfil 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 fulfil 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 Section 6; 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 Section 6 shall survive the termination of this Agreement, regardless of the reason for termination.
  7. Indemnification
    1. The Customer agrees to indemnify, defend and hold Apify harmless from any and all claims brought against Apify on the basis of an actual or a purported violation of any privacy or data protection regulations (including, without limitations, the GDPR), arising out of the Customer’s breach of this Agreement or the Terms. This indemnification shall apply against any person or regulatory body (including, without limitation, data protection authorities in any EU countries).
    2. The provisions of Clause 7.1 shall not apply when the purported breach of this Agreement by the Customer was caused by the Actor that was created by Apify and that malfunctioned due to a development error of Apify and its actions exceeded the scope of the Customer’s instructions.
  8. 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 the Order Form, the Order Form 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. 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.
    4. The Customer has no right to assign or otherwise transfer his rights or obligations under this Agreement to a third party without the prior written consent of the Provider.
    5. Any amendments to this Agreement must be made in writing and must be signed by both Parties.
    6. 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.