Master Services Agreement

This Master Services Agreement (including any applicable Schedules and Exhibits or other terms and conditions incorporated by reference “Master Terms”) governs any Order Form for Services, as may be amended from time to time, and are made and entered into by and between the entity named “Customer” in such Order Form (“Customer”) and the Dynamo Software company (“Dynamo”), described in the “Contracting Entity, Notices” section below.  Dynamo and Customer hereby agree as follows:

1.  Definitions. Capitalized terms used in these Master Terms or any Order Form have the corresponding meanings in Exhibit 1.

2.  Agreement Structure; Services. All Subscriptions for the Services purchased by Customer, including its Affiliates, are reflected on Order Forms issued under these Master Terms. Support and Maintenance are also subject to the Support Agreement, and each Service may be subject to Additional Service Terms. Dynamo reserves the right to make Modifications to the Service, Content, or Dynamo Technology that do not materially diminish the functionality or any mutually agreed upon configuration of the Service during the Subscription Term.

3.  Dynamo Authorization. Subject to this Agreement, including compliance with applicable Policies, Dynamo authorizes Customer’s Users to (i) access and use the Service during each applicable Subscription Term, and (ii) download, copy, and use Content made available through the Service, and modify and create derivative works based on such downloaded Content, solely for internal business purposes. Customer-Derived Content shall be owned by Customer, subject to Dynamo’s rights in the underlying Content, and Customer shall have sole responsibility for such content. The Services may not be accessed for any benchmarking or competitive purposes. Dynamo’s direct competitors are prohibited from accessing the Services, except with Dynamo’s explicit prior written consent.

4.  Customer’s Responsibilities. Customer will be solely responsible for its Users’ use of and access to the Service, Content, and Dynamo Technology, as applicable, and for all activity (including misuse or unauthorized use) occurring under its User Access Credentials to the extent not caused by Dynamo or its personnel. Customer will implement appropriate security and monitoring policies regarding such use and access. Customer will ensure that all its Users comply with the End User Terms. Customer will: (a) notify Dynamo promptly upon any User ceasing to be employed or engaged by Customer or its Affiliate, (b) notify Dynamo as soon as is practicable after learning of any known or suspected security breach, unauthorized access or use, or interference involving the Service, and (c) cooperate with Dynamo and use reasonable efforts to stop immediately any unauthorized use, access to, corruption, or copying or distribution of the Service, the Content, Dynamo Technology, or Customer Data. User Accounts may be reassigned from time to time to new authorized Users but may not be shared among Users. Dynamo will rely on the instructions of the Subscription Administrator. Customer will cooperate as is reasonably necessary to enable Dynamo to perform its obligations under each Order Form.  Customer is solely responsible for compliance with applicable legal and/or regulatory requirements, including without limitation reporting and notification requirements. Any assistance Dynamo may provide, unless legally required, is discretionary and does not impart responsibility to Dynamo.

5.  Customer Data. Customer authorizes and instructs Dynamo and its Affiliates to use Customer Data, any Third Party Applications or Third Party Materials provided by Customer, in accordance with the Agreement. Customer shall have sole responsibility for all Customer Provided Data and for securing any necessary rights for all Customer Provided Data. Dynamo shall process Customer Provided Data only as required and permitted under this Agreement, or as otherwise instructed by Customer. The scope and requirements of such processing are further detailed in the Order Form, the DPA and the Technical Specifications. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DYNAMO HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA. Upon Customer’s written request, within ten (10) Business Days following termination, Dynamo will provide an archive containing all Customer Data available in Customer’s database in the Service. Thereafter, unless legally prohibited from doing so, Dynamo may delete all Customer Data in its possession or control. Dynamo may charge an additional fee for costs incurred to prepare any backup file requested for a particular past date or that is to be delivered via a method other than DVD or secure FTP. In addition, Customer grants Dynamo and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, correction, or other feedback provided to Dynamo or its Affiliates. Customer acknowledges and agrees that Dynamo will own and retain all right, title, and interest in and to any Intellectual Property Rights in any Modification that incorporates any such suggestion, correction, or other feedback.

6.  Intellectual Property Ownership.

6.1  As between Dynamo and Customer, Dynamo shall exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to the Dynamo Technology, the Content, the Service and any Modifications thereto (excluding any Customer Data incorporated therein).

6.2  As between Customer and Dynamo, Customer shall exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to Customer Data (excluding any Dynamo Content).

6.3  Unless otherwise specified in the applicable Order Form, all deliverables provided by or for Dynamo, excluding Customer Data and Customer’s Confidential Information, are owned by Dynamo and constitute part of the Professional Service(s) under the Agreement.

7.  Third Party Applications and Links. Dynamo may agree to provide the capability for the Service to integrate with Third Party Applications via an application programming interface (“API”). Dynamo does not warrant or support third party products or services (including Third Party Applications) and integrations with such products or services may be subject to additional terms. Dynamo will not be responsible for any disclosure, modification, or deletion of Customer Data resulting from access by or to a Third Party Application. Dynamo reserves the right to limit the number of interactions between the Service and a Third Party Application (“API calls”) and the number of requests for information from specific fields (each a “data point”) in the context of such interactions. Dynamo Technology and the Service may include links to, or other means of accessing, Third Party Materials. Customer acknowledges and agrees that Third Party Materials are made available by the applicable third party licensor; not by Dynamo. The use of Third Party Materials is subject to the terms and conditions of the Agreement and those of the third party provider.  DYNAMO IS NOT RESPONSIBLE OR LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY THIRD PARTY MATERIALS OR ANY USE THEREOF BY CUSTOMER OR ANY USER. Dynamo, at its discretion, may discontinue providing any integration with any Third Party Application or any access to Third Party Materials.

8.  Fees. 

8.1  In consideration of Dynamo’s provision of the Services, Customer shall pay all fees or charges due under the Agreement. The Subscription Fees will be invoiced annually in advance. All other fees or charges specified in an Order Form will be invoiced at Dynamo’s then-current rates in accordance with the schedule set forth therein. Payment obligations are in the currency specified in the Order Form. Professional Services are provided on either a time-and-materials or fixed fee basis, as described in an Order Form. Any amount set forth in a time-and-materials Order Form is solely a good-faith estimate and is not a guarantee that the work will be completed for that amount. If the estimated amount is expended, Dynamo will continue to provide Professional Services under the same rates and terms.

8.2  Unless otherwise agreed, Customer will pay all invoices without setoff within thirty (30) days of invoice date. Dynamo’s fees and charges, as detailed in the applicable Order Form(s), do not include any Taxes, unless explicitly stated otherwise. Customer is responsible for paying all Taxes levied with respect to the Services, including those that Dynamo is legally obligated to collect from Customer (subject to any valid tax exemption certificate). 

8.3  If a charge owed by Customer is 30 days or more overdue, Dynamo may suspend the Service until such amount(s) are paid in full. Customer will reimburse Dynamo for Dynamo’s reasonable expenses of collection. Customer must notify Dynamo in writing of any disputed fee or charge on an invoice within 30 days of receipt.

9.  Term; Termination.

9.1  Agreement Term; Renewal. This Agreement commences on the Effective Date and, unless earlier terminated in accordance with this Agreement, continues until the Subscription Terms for all Order Forms have expired or been terminated. Each Order Form will be effective on the Order Effective Date and, unless earlier terminated in accordance with this Agreement, will continue for the Initial Term specified therein. After the Initial Term, Customer specifically acknowledges that the Order Form will automatically renew at Dynamo’s then-current fees for successive 12 month periods (each, a “Renewal Term”), unless either party elects not to renew this Agreement, in whole or in part, by delivering written notice to the other party at least 60 days prior to expiration of the Initial Term or Renewal Term.

9.2  Other Forms of Termination. If a party materially breaches any provision of this Agreement and fails to fully cure such breach within thirty (30) days of written notice describing the breach, the other party may terminate any or all Order Forms. In addition, either party may terminate the Agreement immediately upon the occurrence of any of the following events: (a) if either party ceases to do business, or otherwise terminates its business operations, or (b) if either party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.

9.3.  Effect of Termination. Any termination of a specific Order Form will not terminate any other Order Form or these Master Terms (unless there are no other then-current Order Forms). Upon expiration of the Subscription Term of any Service or termination of any Order Form, (a) Customer will promptly pay Dynamo all amounts owed to Dynamo for such Service, (b) the related rights and revocable licenses granted herein will immediately terminate. Sections 5, 8, 9.3, 10.4, 11, 12, 13, 14, 17, 18, 19 and any terms so designated in any Exhibit or Appendix to these Master Terms or in any Additional Service Terms shall survive termination or expiration of this Agreement.

10.  Representations & Warranties.

10.1  General. Each party represents and warrants to the other party that (a) it has the legal power to enter into this Agreement, (b) this Agreement is legally enforceable against such party in accordance with its terms, (c) no consent or notice to any governmental authority is required in connection with the execution, delivery and performance by such party of this Agreement and (d) its entry into and performance of the Agreement does not and will not conflict with or violate any other agreement it may have with any third party or any applicable Laws.

10.2  By Dynamo. Dynamo represents and warrants to Customer that (a) the Service will perform substantially in accordance with the Service descriptions in the Order Form(s) and the Technical Specifications under normal use and circumstances, and (b) Dynamo has all rights necessary to grant the rights and/or licenses granted to Customer in this Agreement.

10.3  By Customer. Customer represents and warrants to Dynamo that (i) Customer has and will maintain all rights and licenses necessary to make Customer Data, Third Party Applications and Third Party Materials (as applicable) available to Dynamo and its Affiliates, as required under the Agreement, for them to provide the Service and perform their other obligations hereunder; and (ii) Customer has all rights and licenses necessary to grant Dynamo and its Affiliates and their respective personnel access to any integrated or linked Customer-utilized systems and the applicable data stored thereon.

10.4  Limited Remedy; Disclaimer. In case of breach of warranty related to the quality of the Service, Content, Dynamo Technology, Support, Maintenance or Professional Services that is reported by Customer to Dynamo during the applicable Subscription Term, Dynamo or its representative will correct, replace or reperform the defective Service, Content, Dynamo Technology, Support, Maintenance or Professional Services or, if Dynamo determines that such remedies are not practicable, Dynamo may terminate the affected Order Form(s) with respect to the affected Service, Content, Dynamo Technology, Support, Maintenance or Professional Services, and refund to Customer a pro rata (based on remaining days) amount of the Subscription Fees under the terminated Order Form(s) for the then-current Annual Billing Term and any fees or charges paid in advance for Professional Services not successfully completed as of the termination date. Customer acknowledges that this Section sets forth Customer’s exclusive remedy and Dynamo’s sole liability for any breach of its Services warranty or other duty related to the quality of the Service, Content, Dynamo Technology, Support, Maintenance or Professional Services. Except for the express warranties set forth in the Agreement, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.

11. Indemnification.

11.1  Customer will indemnify, defend and hold Dynamo, its Affiliates, and their respective licensors, officers, directors, employees, agents, successors, and assigns (collectively, “Dynamo Indemnitees”) harmless from and against any and all claims, demands, actions, suits, damages, losses, liabilities, costs, and expenses (including reasonable legal fees and costs) incurred by a Dynamo Indemnitee in connection with any third party claim (“Claim“) to the extent that such Claim arises from any use of or access to any Customer Data or Third Party Applications or Third Party Materials provided by Customer or made accessible for Dynamo Indemnitees in accordance with the Agreement.

11.2  Dynamo will indemnify, defend and hold harmless Customer and its officers, directors, and employees, and each of their successors and assigns (collectively, “Customer Indemnitees”) from and against any and all claims, demands, actions, suits, damages, losses, liabilities, costs, and expenses (including reasonable legal fees and costs) incurred by Customer in connection with any Claim to the extent that such claim arises from an allegation that Customer’s use of the Service in accordance with this Agreement infringes or misappropriates such third party’s patent, copyright, or trademark rights; provided however that Dynamo shall have no obligation under this Section for Excluded Claims.