Current Version: 1.0
Master Provider Agreement
Last Updated: 01 April 2020
Effective Date: 01 April 2020
Linode utilizes a variety of contributors, developers, partners, publishers, and vendors to enhance our community’s experiences. In order to promote transparent and fair interactions, Linode requires all service providers to accept the legally binding responsibilities and obligations described in the Linode Provider Terms, including this Master Provider Agreement (the “MPA”). Please read the Linode Provider Terms carefully before agreeing to participate in any Linode Provider Program. By participating in a Linode Provider Program, you accept and consent to the rights, obligations, and practices described in this MPA.
This MPA is a legally binding agreement between you and Linode (“Linode,” "we," "us," or "our") to which, as conditions precedent to allowing you, or the person or entity you represent (“you,” or “your”), with any Service, you expressly affirm the accuracy of each of the following statements:
- You are lawfully able to enter into contracts in both the United States of America and the jurisdiction in which you presently reside;
- You are authorized to enter into this MPA on your behalf or on behalf of the person or entity you represent;
- You consent to the application of the laws of the State of New Jersey, United States of America (“US”) and its sole jurisdiction therein;
- You consent to resolve all Disputes arising from or related to a Provider Program in accordance to the Linode Provider Terms and in your individual capacity; and
- You consent to and shall abide by the Linode Provider Terms at all times.
For your convenience, certain terms used in this MPA are defined in Section 22, or as otherwise first indicated. This MPA shall replace any previously applicable agreements as of the Effective Date.
- Applicability of this MPA. This MPA provides the general terms, conditions, and the framework within which you and your Representatives (collectively the “Provider”) may provide Linode and/or Linode End Users with Services. By mutual written agreement, the Parties may enter into one or more Data Processing Addenda, Supplemental Program Policies, and/or Project Addenda to specify additional terms and conditions with respect to your participation in any Linode Provider Program. For purposes of clarity, a DPA shall generally detail the methodology of how data may be Processed ; a SPP shall generally detail the obligations and responsibilities for participating in an applicable Provider Program; and a Project Addendum shall generally detail a Provider opportunity or engagement. In the event of a conflict between the terms of a DPA, SPP, Project Addendum, and this MPA, the controlling priority of the documents will be in the following order (in decreasing priority): the DPA, SPP, Project Addendum, and this MPA. In the event that you previously entered into an agreement with Linode (“Existing Provider Terms”), then such Existing Provider Terms shall automatically terminate without any further action by either Party on the Effective Date.
- Provider Obligations.
- Provision of Services. Provider shall provide the Services in a professional and workmanlike manner. Provider shall legally and morally have all rights to provide the Services, including without limitation all Intellectual Property Rights associated with the Services. Provider shall not have any proprietary rights to any Data that is Processed by Provider.
- Processing. Provider shall only Process Linode Data in accordance with Linode’s instructions, pursuant to the Provider Terms, and as described in the Provider DPA found here.
- Security. Provider shall implement reasonable and appropriate measures to secure Linode Data against accidental or unauthorized access, transmission, loss, or disclosure.
- Financial Obligations.
- Fees and Payment. All Fees not subject to a bona fide dispute shall be paid by within thirty (30) business days of an Invoice being issued, provided the paying Party may request a reasonably detailed invoice or purchase order upon request.
- Third Party Fees. Linode shall not be responsible for any bank fees, interest charges, or other costs resulting from Linode’s payment of a Provider Invoice. Currency exchange settlements will be based on agreements between Provider and Provider’s financial services provider.
- Intellectual Property. As between the Parties, Linode retains all right, title, and interest in and to the Linode technology, Confidential Information, Intellectual Property, Proprietary Information, and all modifications, alterations, derivative works, and enhancements thereto and all Linode Intellectual Property Rights contained therein. All Intellectual Property and related material, including without limitation, any trade secrets, moral rights, goodwill, relevant registrations, or applications for registration, and rights in any patent, copyright, trademark, trade dress, industrial design, and trade name that is: (i) developed or produced by Linode or (ii) developed, produced, or submitted by Provider to Linode shall be the sole property of Linode. Provider shall retain all right title, and interest in and to Provider technology, Confidential Information, Intellectual Property, and Proprietary Information that Provider expressly excludes from transfer per an applicable Supplement Program Policy and/or Project Addenda.
- Data and Intellectual Property Licenses. Each Party may use the name and logo of the other Party to factually identify Provider as the provider of the Services, or that Linode is a Provider user or customer, and may make no other use of any of such other Party’s Intellectual Property without such other Party’s prior written consent in each instance. Without limitation, the Parties shall not misrepresent or embellish the relationship between you and Linode. Each Party may terminate the other Party’s right to use the applicable Party’s name, logo, and any other marks at any time immediately upon valid Notice.
- Warranties, Representations, and Disclaimer.
- Joint. Each Party represents and warrants to the other that: (i) it has all requisite power and authority to enter into this MPA and perform the obligations set forth herein; and (ii) the execution of this MPA and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or by which it is bound.
- By Provider. Provider represents and warrants on a perpetual basis that: (i) the Services are original, genuine, and free from defects; (ii) Provider shall comply with all applicable laws and regulations relating to the Services; (iii) Provider shall have all Intellectual Property Rights arising from or related to any work product that is transferred or assigned to Linode as a result of the Services; and (iv) Provider has the full right and authority to provide the Services in accordance with the terms and conditions of the Provider Terms.
- Mutual. Each Party (the “Indemnifying Party”) shall defend, indemnify, and hold the other Party (the “Indemnified Party”) harmless (collectively “Indemnify”) arising from any loss, lawsuit, liability, damage, cost, and expense, including reasonable attorneys' fees (collectively “Indemnifiable Loss”) for any Dispute related to: (i) reckless or intentional misconduct of the Indemnifying Party in connection with the Provider Terms; (ii) the Indemnified Party’s authorized use of the Indemnifying Party’s Intellectual Property except in the instance of a third party Dispute against the Indemnifying Party’s infringement of an Intellectual Property Right; and (iii) any Breach or Default in the performance of the obligations of Indemnifying Party hereunder, including without limitation any breach of warranty.
- Specific to Linode. Linode shall Indemnify Provider from any Indemnifiable Loss for any Dispute arising from or related to Linode’s use of the Services in a manner that is inconsistent with the Provider Terms.
- Specific to Provider. Provider shall Indemnify Linode from any Indemnifiable Loss for any Dispute arising from or related to: (i) damage to property or injury caused by any Services used in a manner that is consistent with the Provider Terms; (ii) Provider’s infringement of any third party Intellectual Property relating to Intellectual Property that Provider allows Linode to display, disclose, publish, or otherwise use; and (iii) Providers infringement of any third party Intellectual Property relating to the Services.
- Procedures. As a condition precedent of each Indemnifying Party’s obligations, the Indemnified Party: (i) must promptly provide Notice to the Indemnifying Party of any Dispute arising out of or relating to an Indemnifiable Loss; (ii) cooperate fully in the defense and/or settlement of any Dispute; and (iii) upon request by the Linode, grant the Linode full control of the defense of any applicable Dispute directly related to a Linode Service. Neither Party shall be permitted to consent to any judgment, settlement, or adverse action without the consent of the other Party, which consent shall not be unreasonably withheld.
- Limitation of Liabilities.
- Waiver. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY, NOR LINODE’S REPRESENTATIVES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, REGULATORY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST REVENUE OR LOST DATA, ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THE PROVIDER TERMS. THE REMEDIES PROVIDED IN THIS MPA ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION, AND SHALL APPLY EVEN IF A PARTY SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Limitation on Remedies. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF LINODE SHALL NOT EXCEED THE GREATER OF THE (i) AMOUNT OF FEES PAID BY LINODE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE A DISPUTE IS ASSERTED or (ii) FIVE HUNDRED ($500.00) DOLLARS, AND PROVIDED THAT MULTIPLE CLAIMS SHALL NOT EXPAND THESE LIMITATIONS.IN NO EVENT SHALL LINODE BE LIABLE FOR ANY DAMAGES WHICH DIRECTLY OR INDIRECTLY RESULTS FROM PROVIDER’S FAILURE SECURE ALL NECESSARY REQUIREMENTS, PERMISSIONS, OR LAWS IN CONNECTION TO PROVIDER’S SERVICES.
- Exclusions. Subsections 8.1 and 8.2 do not apply to any violations of either Party’s indemnification responsibilities or Intellectual Property Rights, nor do they apply to your financial obligations to Linode.
- Dispute Resolution.
- Generally. The Parties will attempt in good faith to resolve all Disputes arising out of or relating to the Services and/or the Provider Terms. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: (i) neither Party will bring a Dispute arising out of or related to the Services and/or the Provider Terms more than two years after the cause of action arose; and (ii) after such time limit, any such legal action and all respective rights related to any such action immediately lapse.
- Mandatory Arbitration Disclosure and Procedures. EACH PARTY SHALL BE REQUIRED TO BRING ANY DISPUTE AGAINST THE OTHER PARTY IN ACCORDANCE TO THE DISPUTE RESOLUTION PROVISIONS OF THIS MPA, INCLUDING WITHOUT LIMITATION, THE ARBITRATION PROCEDURES AS FOLLOWS:
- All Disputes arising from or related to the Services and/or the Provider Terms shall be governed by the laws of the state of New Jersey, United States of America, excluding New Jersey’s conflicts of laws rules.
- The Parties will attempt in good faith to settle any Dispute within thirty (30) calendar days after the Dispute arises. If the Dispute is not resolved within thirty (30) calendar days, such Dispute shall be resolved by arbitration (each an “Arbitration Proceeding”) by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of this MPA (“Arbitration Rules”).
- Each Arbitration Proceeding shall be conducted: (i) by a mutually selected arbitrator; (ii) in the English language; and in (iii) Camden County, New Jersey, United States of America. Each Arbitration Proceeding shall be deemed Confidential Information, including without limitation the existence of, (i) any Data disclosed during, and (ii) any communications or documents related to the Arbitration Proceeding.
- The Parties shall pay all fees and expenses arising from each Arbitration Proceeding in accordance with the Arbitration Rules (collectively “Arbitration Costs”). The arbitrator in each Arbitration Proceeding shall determine the non-prevailing party’s obligation to reimburse the amount paid by the prevailing party for the Arbitration Costs, provided that each Party shall be responsible for such Party’s own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.
- Either Party may apply or domesticate to any court of competent jurisdiction located in Camden County, New Jersey, United States of America, for injunctive relief necessary to protect a Party’s rights pending resolution of the applicable Arbitration Proceeding.
- The arbitral award will be final and binding on the Parties and its execution may be presented in any competent court, including any court with jurisdiction over either Party or any of such Party’s property.
- Class Action Waiver. EACH PARTY SHALL BE REQUIRED TO BRING ANY DISPUTE (THE “CLAIMANT”) AGAINST THE OTHER PARTY (THE “RESPONDENT”) IN THE CLAIMANT’S INDIVIDUAL CAPACITY AND SHALL NOT BRING ANY DISPUTE AGAINST RESPONDENT AS A MEMBER OF ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (COLLECTIVELY “CLASS ACTION”). ANY CLAIM THAT ALL OR PART OF THIS CLASS ACTION WAIVER IS UNENFORCEABLE, UNCONSCIONABLE, VOID, OR VOIDABLE MAY BE DETERMINED ONLY BY A COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY LAW, PROVIDER EXPRESSLY AND IRREVOCABLY WAIVES ANY ABILITY TO MAINTAIN ANY CLASS ACTION IN ANY FORUM IN CONNECTION WITH ANY DISPUTE ARISING FROM THE PROVIDER TERMS.
- Jury Trial Waiver. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH CLAIMANT EXPRESSLY AND IRREVOCABLY WAIVES THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY DISPUTE ARISING FROM THE PROVIDER TERMS.
- Confidential Information. Each Party shall only use the other party’s Confidential Information in connection with Provider’s provision of the Services to Linode in accordance with the Provider Terms. The recipient of Confidential Information shall not disclose the disclosing Party’s Confidential Information to any third party unless such third party is providing services or functions in support of a Party’s exercise of its rights or performance of its obligations hereunder and is bound in writing by confidentiality and limited use restrictions substantially similar to those required hereunder or otherwise commercially reasonable and sufficient to obtain a substantially similar level of protection. The limitations on disclosure or use of Confidential Information shall not apply to information which: (i) is rightfully obtained by the recipient without breach of any confidentiality obligation; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient obtains independently without using Confidential Information of the other Party; or (iv) is disclosed in response to a valid court or governmental order (such as a subpoena).
- Term and Termination.
- Continuation. This MPA shall commence on the Effective Date and continue until this MPA is terminated in accordance with the provisions herein.
- Termination. Either Party may terminate this MPA upon written notice if the other Party breaches any material provision of the Provider Terms and fails, within thirty (30) days after receipt of Notice to correct the breach. Termination of this MPA shall result in automatic corresponding termination of all Project Addenda and SPP then in effect. Either Party may terminate this MPA in writing at any point when there is no Project Addendum or SPP then in effect.
- Effect of Termination. Upon termination of this MPA, all rights and obligations under the Provider Terms shall automatically terminate except as otherwise provided in the Provider Terms.
- Fees. In the event of a termination of this MPA, or any SPP or Project Addendum effectuated hereunder, as a result of Provider’s material breach or default of the Provider Terms, Provider shall be obligated to refund payment to Linode for all pre-paid Fees prior to the date of such breach or default. In the event of a termination of this MPA, or any SPP or Project Addendum effectuated hereunder, not the result of Provider’s material breach or default of the Provider Terms, Linode shall be obligated to render payment to Provider for all outstanding and earned Fees as of the termination date.
- Data. Provider shall return all of Linode’s proprietary materials and Confidential Information immediately upon termination. The provisions of the Provider Terms which relate to confidentiality, intellectual property ownership, indemnity, limitations of liability, disclaimers, and payment obligations, along with terms which expressly or by their nature should reasonably survive termination, shall survive expiration or termination hereof.
- Cooperation; Audit Rights. Provider shall cooperate with Linode’s investigation of any suspected violation of the Provider Terms.
- Independent Contractor Relationship; No Third Party Beneficiaries. The Parties are independent contractors and nothing contained in the Provider Terms shall be construed to create an association, trust, partnership, agency, or joint venture between the parties. The Provider Terms do not and are not intended to confer any rights or remedies, express or implied, upon any person other than the Parties hereto. Nothing in the Provider Terms shall be interpreted or construed as creating or establishing any employment or agency relationship between Provider and Linode. The Parties acknowledge and agree that Provider is not an employee of Linode for any purpose, including without limitation: (i) local, state, federal or international taxes; (ii) workers’ compensation, social security, group insurance, retirement, or other contributing benefits; and (iii) sick leave or vacation pay customarily provided by an employer with respect to an employee. Each Party shall bear full and sole responsibility for its own expenses, liabilities, and costs of operation. Neither Party will have the authority to, and will not purport to, enter into any contract on behalf of the other Party, or commit it to any obligation. Provider agrees to defend, indemnify, and hold harmless Linode from any disputes arising from or related to Provider compensation withholdings, tax, insurance, or benefit matters.
- Assignment. Provider shall not assign or transfer any part of this MPA without the prior written consent of Linode. Linode may assign the Provider Terms to a Representative or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or a controlling interest in its ownership.
- Trade Restrictions. Provider shall not transfer, import, export, sell, resell, use, or otherwise provide the Services in any manner which would cause either Party to breach any applicable US trade control laws, orders, or regulations. In addition, Provider shall not, directly or indirectly import the Services: (i) from any country to which the is subject to US embargo (including, for these purposes, any national or resident of any such country); or (ii) from anyone on the US Treasury Department’s List of Specially Designated Nationals and Blocked Persons, List of Specially Designated Terrorists, List of Specially Designated Narcotics Traffickers, or the US Department of Commerce Bureau of Industry and Security Denied Persons List.
- Governing Law and Jurisdiction. The laws of the State of New Jersey shall govern the interpretation and enforcement of this MPA and any dispute arising out of or related hereto, without regard to its conflict of laws principles. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Camden County, New Jersey with respect to any Dispute arising out of or relating to the Provider Terms.
- Disclosure to Law Enforcement or Judicial Proceedings. Each Party agrees that the other Party may disclose Data arising from or related to the Provider Terms to any court or law enforcement agency or authority that issues a valid court order or subpoena without seeking consent or notification. Linode may charge you, and you shall reimburse Linode, for the costs incurred by Linode in complying with such order or subpoena, including costs of attorneys for time spent retrieving, reviewing, and preparing responsive documents.
- Waiver. The failure of any Party in any one or more instances to insist upon strict performance of any terms or provisions of this MPA, or any DPA, SPP, and Project Addendum effectuated hereunder, or to exercise any option or remedy which is conferred in the Provider Terms, shall not be construed as a waiver, or relinquishment to any extent of the right to assert or rely upon any such terms, provisions, options, or remedies on any future occasion. No waiver by either Party hereunder shall be effective unless agreed to pursuant to a writing signed by a duly authorized representative of the Party granting the waiver.
- Severability. Each provision of this MPA and of any DPA, NDA, SPP, or Project Addendum effectuated hereunder, shall be considered separable; and if, for any reason, any provision of the Provider Terms is determined by a court of competent jurisdiction to be in violation of any statute, regulation, rule, order, or decree of any governmental authority, such determination shall not affect the enforceability of the remainder of the Provider Terms or the validity, lawfulness, or enforceability of such provision in any other jurisdiction. If any court of competent jurisdiction shall deem any provision of the Provider Terms too restrictive, the other provisions of the Provider Terms shall stand, and the court shall modify the provisions at issue to the point of greatest restriction permissible by applicable law.
- Construction. If an ambiguity or question of intent or interpretation arises, the Provider Terms shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of its authorship of any of the provisions of the Provider Terms. Words used in the Provider Terms in the singular, where the context so permits, shall be deemed to include the plural and vice versa. The definitions of words in the singular in the Provider Terms shall apply to such words when used in the plural where the context so permits and vice versa.
- Entire Agreement. This MPA, and DPA, NDA, SPPs, and Project Addendum effectuated hereunder represents the entire agreement between Provider and Linode with respect to the Services and supersedes all prior oral and written understandings, communications, or agreements between Provider and Linode regarding that subject matter. No amendment to or modification of this MPA will be valid or binding unless it is in writing and executed by authorized representatives of both Parties.
- Definitions. Various capitalized terms which are used throughout this MSA are defined in the section in which they are first used or as follows:
- “Confidential Information” means non-public information of a Party which is provided to the other Party hereunder and which is either designated as confidential or of a type which should be recognized by a commercially reasonable party as confidential.
- “Data” means any individual or collection of text, number, symbol, audio, software, file, information, or content that is capable of being Processed.
- “Data Processing Addendum” or “DPA” can be found here and is incorporated in its entirety to this MPA by this reference.
- “Dispute” includes any and all allegations, conflicts, claims, controversies, and other legal causes of action, whether alleged or not alleged, known or unknown, vested or contingent and/or asserted or not asserted, arising or occurring as between the Parties, Representatives, or End Users.
- “End User” means any individual or entity, including without limitation a Party’s third party users and such third party users’ Representatives, that is directly or indirectly permitted by a Party to use or access that Party’s services and/or products.
- “Fee” means any charge and otherwise cost arising from or related to Provider’s provision of the Services, which shall be in the currency of the United States of America.
- “Intellectual Property” means any and all tangible or intangible property, including without limitation devices, machines, components, parts, methods, procedures, data, information, inventions, discoveries, works of authorship, designs, and derivative works.
- “Intellectual Property Right” means any and all of the universal legal rights afforded to the Intellectual Property based on statute or common law, including without limitation, patents, copyrights, and trade secrets.
- “Notice” shall mean any document, request, demand, and otherwise communication required by the Provider Terms, each of which shall be in writing and delivered: (i) in person or by courier; (ii) first-class registered mail or certified mail; or (iii) electronically by email. Linode shall deliver all Notices to the address and point of contact listed in Provider’s Project Addenda, and Provider shall deliver all Notices to Linode by email to [email protected] or by physical mail at 249 Arch Street, Philadelphia, Pennsylvania 19106.
- “Process” and “Processed” and “Processing” shall collectively mean any (i) direct or indirect and (ii) manual or automated access, acquisition, collected, development, implementation, maintenance, transmission, use, and otherwise performance of any operation or set of operations upon Data.
- “Project Addendum” or “Project Addenda” means any Services agreement offered by Linode, accepted by Provider, and mutually consented to by the Parties arising out of or relating to this MPA.
- “Provider Terms” collectively means the MPA, DPA, NDA, SPPs, and Project Addendum.
- “Representative” includes any owner, director, manager, employee, contractor, subcontractor, processor, subprocessor, service provider, professional advisor, director, officer, trustee, successor, assign, agent, administrator, executor, or personal representative of a Party.
- “Service” means good, product, or service made available by Provider for purchase, license, distribute, and/or use by Linode and/or Linode End Users, including without limitation articles, applications, codes, data, documentation, equipment, hardware, infrastructure, platforms, programs, software, systems, technologies, and otherwise Provider Intellectual Property.
- “Supplemental Program Addendum” or “SPA” means any mutually executed addenda governing your participation in any Linode Program set forth at www.linode.com.