This End User License Agreement (this “Agreement”) is entered into as of the Start Date set forth in the Purchase Order (the “Effective Date”) by and between SpeedSize Ltd (“SpeedSize”) and the client set forth below (“Client”). SpeedSize and Client are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
Reference is also made to the following SpeedSize policies: Integration KPIs, Privacy and Security, Incident Management, and Data Protection.
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DEFINITIONS
1.1. Annual Cap Usages - the annual Usage of the Services, measured on an annually accumulated basis for Images, Videos, and Traffic, in the amounts specified in the Purchase Order.
1.2. Client Media – Images, videos, icons, thumbnails, animations, and other media assets provided by or on behalf of Client.
1.3. Confidential Information – Any non-public information disclosed by one Party to the other that is designated as confidential or that reasonably should be considered confidential, including account information, credentials, API keys, tokens, integration details, and business data (excluding information that is publicly known, independently developed, or rightfully received from a third party without confidentiality obligations).
1.4. Fees – The fees payable by Client as set forth below.
1.5. Initial Term – The initial non-cancellable term set forth in the Purchase Order (typically between one (1) to three (3) years).
1.6. Optimized Media – Client Media after processing by the Services.
1.7. Renewal Term – any additional term following the expiration of the Initial Term, during which this Agreement and the Services continue in effect pursuant to the terms hereof.
1.8. Purchase Order – A mutually executed Purchase Order or AWS Marketplace private offer or sales quote, which specifies the Services, Fees, term, and other commercial details.
1.9. Services – SpeedSize’s media optimization services provided under this Agreement.
1.10. Start Date – The date of commencement of commercial integration as set forth in the Purchase Order or otherwise agreed by the Parties.
1.11. Usage – Client’s usage of the SpeedSize Services, measured on an annually accumulated basis for Images, Videos, and Traffic.
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IBM Marketplace Terms and Support
2.1. IBM Marketplace Commercial Terms
For subscriptions purchased through IBM Marketplace, all billing, invoicing, payment collection, refunds (if applicable), and taxes related to the subscription purchase are administered by IBM in accordance with the applicable IBM Marketplace terms and conditions. Any payment-related provisions contained in SpeedSize's standard commercial agreements shall not apply to purchases made through IBM Marketplace unless otherwise agreed in writing between the parties.
Nothing in this Agreement modifies the commercial relationship between the customer and IBM with respect to marketplace transactions. SpeedSize remains solely responsible for providing and supporting the Services.
2.2. Enterprise Support
SpeedSize provides enterprise-grade technical support for all IBM Marketplace customers.
Support requests may be submitted directly to the SpeedSize support team by email or through dedicated collaboration channels established during onboarding, including Slack and Microsoft Teams where applicable. Upon receipt of a support request, SpeedSize will engage the appropriate technical resources and provide updates until resolution.
- SpeedSize does not require customers to use a ticketing portal and instead provides direct access to technical and customer success personnel to ensure rapid response and issue resolution.
- Customer submits a support request by email or approved communication channel.
- SpeedSize acknowledges the request and assigns the appropriate technical resource.
- The issue is investigated, diagnosed, and prioritized according to severity.
- Regular progress updates are provided until resolution.
- A post-incident review may be conducted for critical service-impacting events.
2.3. Support Hours and Locations
The Company is dedicated to providing our Clients with the highest quality of service.
Enterprise clients benefit from rapid 24/7 support via a dedicated Slack channel for any urgent matters. Our expert team will promptly address any technical issues with diligent troubleshooting efforts.
Non-urgent support is provided during designated regular Support Hours, weekdays from 9:00 am to 5:00 pm Europe time or/and United States time, excluding National Holidays. For any non-urgent matters, Clients can initiate support tickets via email at support@SpeedSize.com and will receive an answer to all email support tickets within 1 business day.
By entering into this Service Level Agreement, both SpeedSize and our Clients commit to upholding the highest standards of service excellence and collaboration. Together, we strive to achieve mutual success and drive innovation in the digital landscape.
2.4. Dedicated Account Management
Our Clients benefit from dedicated Customer Success, dedicated Solution Engineers, and Account Managers who serve as a single point of contact for all their needs. Our personalized approach to client relationships ensures seamless communication and effective resolution of issues.
2.5. Integration Capabilities
Recognizing the importance of tailored solutions, we offer personalized support, bespoke features, and customized services to meet the specific needs of each Client. Our commitment to customization ensures alignment with their unique business objectives and challenges.
We assure our enterprise clients of our integration capabilities and compatibility with their existing IT infrastructure. Our solutions seamlessly integrate with multiple systems and platforms, ensuring ease of deployment and interoperability.
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PURCHASE ORDERS
All Services shall be governed by a Purchase Order. In the event of any conflict between this Agreement and a Purchase Order, this Agreement shall control unless the Purchase Order expressly amends a specific provision of this Agreement. Any Purchase Order that is not signed and returned within thirty (30) days (or a different period noted therein) shall void any special pricing or discounts offered therein.
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TERM AND TERMINATION
4.1. Term
This Agreement commences on the Start Date and shall continue in effect until the expiration or termination of the last active Purchase Order, unless such Purchase Order is renewed or extended. Each Purchase Order shall have its own Initial Term as set forth in such Purchase Order.
4.2. Non-Cancellability/Termination
Client may not cancel or terminate any Purchase Order during the Initial Term or any Renewal Term and Client shall remain obligated to pay all Fees for the entire duration of the Initial Term and each Renewal Term, regardless of Client's actual use of the Services during the applicable period.
4.3. Termination or Suspension for Cause
SpeedSize may terminate this Agreement or suspend the Services for material breach that remains uncured after thirty (30) days' written notice specifying the breach in reasonable detail; provided, however, that in the event Client fails to pay any Fees within five (5) days of the due date, SpeedSize may suspend or terminate the Services upon not less than forty eight (48) hours prior written notice. Notwithstanding any termination or suspension, Client shall remain obligated to pay all Fees through the end of the Initial Term or Renewal Term, as applicable.
4.4. Effect of Termination or Expiration
Upon termination by SpeedSize or expiration of this Agreement: (i) Client shall immediately cease using the Services and remove all references to SpeedSize service URLs from its websites and applications; (ii) SpeedSize shall cease serving Optimized Media to Client and shall delete all Client Media and Optimized Media; (iii) Client shall pay all amounts due under this Agreement; and (iv) no refunds shall be due except as expressly provided in this Agreement.
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FEES AND PAYMENT
5.1. Fees and Commencement
Client shall pay the fees set forth in each Purchase Order (“Fees”). Fees commence on the Start Date, irrespective of integration progress or commencement of use in any environment.
5.2. Usage Measurement and Annual Cap Usages
All processing counts toward Annual Cap Usages regardless of source, including unauthorized third-party usage, bots, crawlers, or automated access. Client is responsible for all Usage exceeding Annual Cap Usages regardless of the source.
Overage for each of Images, Videos, and Traffic is calculated as:
Actual Annual Usage – Annual Cap Usage (set forth in Purchase Order) = Overage.
Client shall be entitled to a free annual overage allowance of up to ten percent (10%) above the Annual Cap Usage for each of Images, Videos, and Traffic. If Client's actual annual Usage exceeds the Annual Cap Usage by more than ten percent (10%), Client shall be required to pay for the entire Overage amount, including the initial ten percent (10%).
5.3. Payment Obligations and Consequences
Client may view its Usage at any time in their SpeedSize console. Client acknowledges full responsibility for all usage and overage fees, and for monitoring Usage. No refunds will be provided for usage at a level below the Annual Cap Usage, but unused Usage of Images, Videos, and Traffic rolls forward to the next subsequent year.
5.4. Billing and Payment Terms
(a) Invoices shall be issued either directly by SpeedSize’s IBM Marketplace, and payment shall be due in each case as set forth in the applicable Purchase Order or, if no payment terms are specified, within thirty (30) days of the invoice date.
(b) Where IBM Marketplace is used and a greater scope of Services is required, Client shall accept such revised private offer within no more than seven (7) days. Failure to accept such private offer within such period will incur interest as provided below.
(c) All Fees are non-refundable and non-cancellable.
(d) Upon renewal, SpeedSize and Client will jointly review Client’s needs based upon historic Usage data and expected growth. SpeedSize may increase fees upon each renewal in an amount of up to ten percent (10%) with respect to the unit price of Images, Videos, and Traffic.
5.5. Late Payment
Overdue amounts accrue interest at two percent (2%) per month or the legal maximum, if lower. Client shall pay all collection costs, including reasonable attorneys’ fees.
5.6. Taxes
Fees exclude all taxes except taxes on SpeedSize’s net income, which Client shall pay or reimburse.
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MARKETING
Subject to Client’s prior approval, which will not be unreasonably withheld, SpeedSize may use Client’s name, logo, mutual case studies, and performance testimonials for marketing purposes.
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INTELLECTUAL PROPERTY
(a) Client retains all right, title, and interest in Client Media, and is only subject to the limited license to SpeedSize to use the Client Media for the Services provided below.
(b) SpeedSize retains all right, title, and interest in the Services, platform, console, algorithms, code, optimizations, and any improvements (even if suggested by Client).
(c) Subject to payment, SpeedSize grants Client a limited, non-exclusive, non-transferable license during the Initial Term and any Renewal Term to use the Services solely for the specific websites stated in the Purchase Order.
(d) Client grants SpeedSize a worldwide, royalty-free license to process, cache, store, and deliver Client Media solely to provide the Services.
(e) Client shall not reverse engineer, decompile, modify, resell, time-share, or create derivative works of any SpeedSize technology.
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CONFIDENTIALITY AND NON-DISPARAGEMENT
Each Party shall maintain the other’s Confidential Information in confidence and shall not use or disclose such Confidential Information except as permitted herein. Such obligations shall survive for five (5) years following termination or expiration of this Agreement; provided, however, that obligations with respect to trade secrets shall continue in perpetuity. Neither Party shall disparage the other Party.
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REPRESENTATIONS, WARRANTIES, DISCLAIMER, LIMITATION OF LIABILITY
(a) Each Party shall comply with all applicable data protection and privacy laws in connection with its performance under this Agreement. To the extent SpeedSize processes any personal data on behalf of Client in connection with the Services, the Parties shall execute a Data Processing Addendum, which shall be incorporated into and form part of this Agreement.
(b) Client represents it has all rights in Client Media necessary to authorize SpeedSize to provide the Services hereunder, without infringement of third-party intellectual property rights.
(c) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPEEDSIZE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, QUALITY, ACCURACY, AND COMPLETENESS.
(d) NEITHER PARTY IS LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR FOR LOSS OF PROFITS, DATA, OR BUSINESS. SPEEDSIZE’S AGGREGATE LIABILITY IS LIMITED TO FEES PAID IN THE SIX (6) MONTHS PRIOR TO THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO (I) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, (II) BREACHES OF CONFIDENTIALITY, OR (III) WILLFUL MISCONDUCT OR FRAUD.
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INDEMNIFICATION
(a) Client shall defend and indemnify SpeedSize against claims that the Client Media (including the processing thereof by SpeedSize) infringes third-party intellectual property rights.
(b) SpeedSize shall defend and indemnify Client against claims that the Services (excluding Client Media) infringe third-party intellectual property rights.
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MISCELLANEOUS
11.1. Force Majeure.
Neither Party is liable for delays or failures due to causes beyond its reasonable control (including acts of God, natural disasters, war, terrorism, government actions, or system failures). The affected Party must promptly notify the other and use reasonable efforts to mitigate. Either Party may terminate upon sixty (60) consecutive days of force majeure.
11.2. Dispute Resolution.
The Parties agree that any dispute, claim, or controversy arising out of or relating to this Agreement (collectively, "Disputes") shall be resolved through the following sequential process: (a) The Parties shall first attempt in good faith to resolve any Dispute through direct negotiations between senior executives of each Party who have decision-making authority for a period of sixty (60) days following written notice of such Dispute; (b) If the Dispute is not resolved through negotiation, the Parties shall attempt to resolve the Dispute through mediation conducted by a mutually acceptable mediator, or if the Parties cannot agree, a mediator appointed by the American Arbitration Association ("AAA") in New York, New York; (c) If mediation is unsuccessful within sixty (60) days of commencement, the Dispute shall be finally resolved through binding arbitration administered by AAA in accordance with its Commercial Arbitration Rules, with the arbitration taking place in New York, New York before a single arbitrator.
Either Party may seek injunctive relief in the courts of New York to prevent irreparable harm. The prevailing Party in arbitration shall recover reasonable attorneys' fees and costs. Any Dispute must be brought within twelve (12) months after the cause of action accrues, or such claim shall be permanently barred.
11.3. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
11.4. Entire Agreement; Amendment
This Agreement and Purchase Orders constitute the entire understanding between the Parties. Amendments require signed writing (except Purchase Orders and AWS private offers).
11.5. Assignment.
Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that either Party may assign this Agreement without such consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section shall be null and void ab initio. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
SpeedSize Ltd
By: _______________________________
Name: _______________________________
Title: _______________________________
Client
By: _______________________________
Name: _______________________________
Title: _______________________________