These Master Service Subscription Terms (including any applicable Schedules and Exhibits hereto or other terms and conditions incorporated by reference herein “Master Terms”) govern any Order Form that references them and are made and entered into by and between the entity named as the “Customer” in the Order Form (“Customer”) and the applicable Dynamo Software company specified in Section 22.1 (“Vendor”).
Master Terms
Vendor and Customer agree as follows:
1. Definitions. The capitalized terms used in this Agreement, including these Master Terms, any Additional Service Terms or any Order Form, will have the corresponding meanings provided in Exhibit 1: Defined Terms, attached hereto.
2. Agreement Structure; Services.
2.1 It is the intention of the parties that all Subscriptions for the Services purchased by Customer, including its Affiliates, will be reflected on Order Forms issued pursuant to and governed by these Master Terms. In addition to these Master Terms, each Service ordered pursuant to an Order Form may be subject to Additional Service Terms. Each such Order Form will govern only the Services ordered pursuant to such Order Form.
2.2 Vendor will make the applicable Services available for Customer’s and its Users’ use pursuant to this Agreement during each Subscription Term. Subject to Customer’s satisfaction of payment obligations, Vendor’s Services will include a browser interface as well as access, and storage of data on equipment owned or operated by or on behalf of Vendor and transmission of data from such equipment.
2.3 Vendor reserves the right, from time to time, to make Modifications to the Service, Content, or Vendor Technology that do not materially diminish the functionality or any mutually agreed upon configuration of the Service during the Subscription Term. Unless otherwise agreed in writing by Vendor and Customer, each such Modification may be made generally available to all Vendor customers that subscribe to the applicable Service.
2.4 Services may be made available through a Mobile Application, which allows Customer and its Users to use and access a Service (or certain features or functionality thereof) via a mobile or tablet device. To use any Mobile Application, the applicable User must have a mobile or tablet device that is compatible with such Mobile Application. For clarity, such access and use of the Service (or any portions thereof) through a Mobile Application will be subject to this Agreement.
2.5 Vendor shall perform all Professional Services set forth in each Order Form and all Maintenance and Support required by Exhibit 2: Dynamo Support Agreement, in accordance with the terms of this Agreement.
3. License by Vendor. Subject to the terms and conditions of this Agreement, Vendor hereby grants Customer, during the applicable Subscription Term, a non-exclusive, non-transferable (except in compliance with Section 18), non-sublicensable, worldwide:
3.1 right to access and use the Service, solely for use by Users in accordance with the terms and conditions of this Agreement. Such use is limited to Customer’s internal use;
3.2 right and license to, and to permit Users to, download, copy, make available internally and to its Investors, and use Content solely to the extent made available to Customer for such purposes through the Service, as well as to modify and create derivative works based on such downloaded Content, in each case, solely for Customer’s and its Investors’ internal business purposes in the ordinary course of its business. Customer, not Vendor, shall have sole responsibility for any Customer-Derived Content; and
3.3 license to use the Documentation solely for Customer’s internal business purposes in connection with its use of the Service.
4. License by Customer.
4.1 Customer hereby irrevocably grants to Vendor, its Affiliates, and each of their respective Personnel all rights and permissions in or relating to Customer Data, any Third Party Applications or Third Party Materials provided or made available by Customer, and any program code created by or for Customer using the Service, in each case, as necessary for any of them to enforce this Agreement (to the extent permitted hereby), exercise their respective rights, and perform their respective obligations, including integration with a Third Party Application in accordance with Section 6 below. Subject to the limited rights and licenses granted herein, Vendor acquires under this Agreement no right, title, or interest from Customer or its licensors in or to any Customer Data, Third Party Application, Third Party Materials, or program code created by or for Customer using the Service.
4.2 In addition, Customer hereby grants to Vendor and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided to Vendor or its Affiliates or its or their Personnel by Customer, its Affiliates, Users, or Investors relating to the operation of the Service. Customer acknowledges and agrees that Vendor will own and retain all right, title, and interest in and to any Intellectual Property Rights in any Modification that incorporates any such suggestion, enhancement request, recommendation, correction or other feedback into the Service, and Customer will, and will cause its and its Affiliates’ Personnel to, upon Vendor’s request, assign to Vendor in writing any proprietary interest in any Modification.
5. Acceptable Use Policy. Customer shall, and shall cause its Users and Investors to, comply with the Acceptable Use Policy, which is incorporated herein by this reference.
6. Third Party Applications and Links.
6.1 Vendor may offer under an Order Form or may otherwise agree to provide the capability for a Service to integrate with one or more Third Party Applications via an application programming interface (“API”) or other form of integration determined by Vendor. Customer acknowledges that it may be required, prior to using any such integration, to (a) obtain access to such Third Party Applications directly from their respective providers and any other consents or authorizations required for the use thereof, and (b) grant Vendor access to Customer’s account(s) on those Third Party Applications. Any services and exchanges of data between Customer and any provider of a Third Party Application are solely between Customer and the applicable third-party provider. Vendor does not warrant or support third-party products or services (including Third Party Applications), whether or not they are designated by Vendor as “certified” or otherwise. Vendor will not be responsible for any disclosure, modification, or deletion of Customer Data resulting from access by a Third Party Application. Vendor 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 form specific fields (each a “data point”) in the context of such interactions. Those limits and the additional fees due for exceeding the limits will be described in the Order Form. Customer acknowledges that exceeding the agreed limits for data point requests may result in Service degradation for Customer, and Customer is not entitled to any Service Level Credits (if applicable) for periods during which Customer and its Affiliates exceed the limits.
6.2 Vendor Technology and the Service may include links (whether background or external) to, or other means of accessing, Third Party Materials. Customer acknowledges and agrees that Third Party Materials are offered and made available by the applicable third party licensor, and not by Vendor, and, as such, may be used, edited, reproduced and distributed by such third party provider outside the scope of this Agreement and without Vendor’s knowledge, endorsement, or control. The use of Third Party Materials is subject to the terms and conditions of this Agreement and those of the third party provider. VENDOR 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.
6.3 Without affecting Customer’s Subscription, Vendor may immediately discontinue providing any integration with any Third Party Application or any link or other access to Third Party Materials if Vendor, in its sole discretion, determines that it no longer has the right or ability to provide such integration or link for any reason. Customer will notify Vendor promptly if Customer’s relationship with any relevant third party provider terminates.
7. Customer’s Responsibilities.
7.1 Customer will, and will ensure that its Users and Investors, use the Service, Content, and Vendor Technology, as applicable, in all material respects in accordance with this Agreement, any applicable Documentation, and any Policies. Customer will be solely responsible for its Users’ and Investors’ use of and access to the Service, Content, and Vendor Technology, as applicable, and for all activity (including misuse or unauthorized use) occurring under its User Access Credentials to the extent not caused by Vendor or its Personnel. Customer will implement appropriate security and monitoring policies with respect to such use and access. Customer will ensure that all Users agree to and abide by the end user license agreement (“End User Terms of Use”) posted on the Service or provided otherwise in writing. Customer will: (a) notify Vendor immediately of any known or suspected security breach involving the Service or unauthorized use of any Access Credentials, and (b) cooperate with Vendor and use reasonable efforts to stop immediately any unauthorized access to, or copying or distribution of the Service, the Content, Vendor Technology, or Customer Data.
7.2 Upon Vendor’s provision of Access Credentials for the initial Subscription Administrator, Customer will be responsible for creating and managing Access Credentials for Users. Customer may designate only competent, trained Users as Subscription Administrators. An authorized Subscription Administrator may add User Accounts by submitting an additional Order Form or an addendum to an existing Order Form, and any added User Accounts or additional recurring services will be coterminous with the then-current preexisting Subscription Term for the applicable Service. User Accounts and Access Credentials cannot be used by more than one individual User, but User Accounts (with new Access Credentials) may be reassigned from time to time to new Users who are replacing former Users. Customer will limit access to its Access Credentials to Users and will not share, reassign, divulge or disclose any Access Credentials except as permitted hereunder. Customer may not provide Access Credentials to third party representatives, consultants, contractors, or agents without the prior written consent of Vendor. Vendor will be entitled to rely on the instructions of the Subscription Administrator without further inquiry to or approval from Customer.
7.3 Customer is solely responsible for all of its and its Users’ information technology infrastructure and networks, whether operated directly by Customer or through the use of third-party services. In addition to other third party costs that may apply, Customer agrees to pay for any and all of its telecommunications costs, license fees, and service fees required for Customer’s and its Users’ access to the Service, including in connection with establishing a secure connection (such as VPN) to the Service, where required.
7.4 Customer will cooperate reasonably and in good faith with Vendor in the performance of its obligations, including by allocating sufficient resources and timely performing any tasks and responding to any inquiries reasonably necessary to enable Vendor to perform its obligations under each Order Form. Vendor is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
8. Customer Data.
8.1 Vendor does not own any Customer Data, unless otherwise agreed in writing. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Provided Data, and for securing any necessary rights for all Customer Provided Data. Except as otherwise provided in this Agreement, Vendor will not disclose Customer Data to any third party without Customer’s prior consent, which may not be unreasonably withheld. Vendor shall process Customer Provided Data only as permitted under this Agreement.
8.2 Customer grants Vendor, its Affiliates and their respective Personnel the right to analyze, use, and disclose, during and after the Subscription Term, anonymous or aggregated data derived from Customer Data, for analysis, reporting, or any other Vendor’s and its Affiliates’ business purposes (e.g. related to operating, maintaining and improving any Service, Content, and Vendor Technology) or for generating statistical data and metrics that may be made available to customers or third parties; provided that such use and disclosure does not associate Customer with such data or otherwise identify Customer or any other customer or Person. This provision shall survive termination of this Agreement.
8.3 Upon Customer’s written request (which must be made during the Subscription Term or by the tenth (10th) Business Day after termination of this Agreement in its entirety for any reason) and payment in full of all undisputed outstanding invoices and the applicable fees for Professional Services, if any, at Vendor’s then-current rates, Vendor will promptly retrieve and make available to Customer a MSFT SQL backup file and an archive containing all Customer Data under all Order Forms (other than Customer Data aggregated in accordance with Section 2), including all documents collectively containing all of the Customer Data. After such ten (10) Business Day period, unless legally prohibited, Vendor may delete all Customer Data in its possession or under its control but will be permitted to retain indefinitely all data that has been aggregated in accordance with Section 8.2 or which has been made publicly available without breach of this Agreement. Vendor may charge an additional fee for the additional costs required in preparing any backup file requested for a particular past date or that is to be delivered via a method other than DVD or secure FTP site.
8.4 Vendor does not exercise editorial control over the content of any material created or accessible over or through the Service. However, Vendor reserves the right, without any obligation, to monitor Customer’s use of the Service at any time, as it reasonably deems appropriate, and to remove any materials that, in Vendor’s sole discretion, may be illegal, may subject Vendor to liability, may violate this Agreement, or are inconsistent with Vendor’s purpose for the Service.
8.5 The Service does not replace the need for Customer to maintain regular data backups or redundant data archives. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, VENDOR HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
9. Intellectual Property Ownership
9.1 As between Vendor and Customer, Vendor shall exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to the Vendor Technology, the Content, the Service and any Modifications thereto (excluding any Customer Data incorporated into the Vendor Technology, the Content or the Service). All rights not expressly granted to Customer are reserved by Vendor and its licensors. Except to the extent expressly set forth herein, this Agreement does not convey to either party any rights, title, interest, or license in or related to the services, materials, content, technology, data, or Intellectual Property Rights of the other party or any third party.
9.2 Trademarks.
9.2.1 Unless otherwise set forth in this Agreement, neither party will use or display, nor permit any of such party’s Affiliates or its or their Personnel to use or display, any Trademarks of the other party or any of such party’s Affiliates, except when approved in writing by the other party. Any authorized use by a party of the other party’s Trademarks will additionally be subject to such other party’s quality usage guidelines that have been provided in writing.
9.2.2 Subject to the provisions of this Agreement, Customer hereby grants to Vendor and its Affiliates a limited, non-exclusive, non-assignable, non-sublicensable, royalty-free license to use the Trademarks of Customer and any Affiliates using the Service: (a) as necessary to provide the Service or any Professional Services, Maintenance, or Support, and (b) to identify that Customer is a customer of Vendor.
10. Fees.
10.1 Charges and Payment of Fees.
10.1.1 In consideration of Vendor’s provision of the Services, Customer shall pay all fees or charges specified in all Order Forms hereunder in accordance with the terms and conditions set forth in this Agreement. The Subscription Fee will be invoiced annually in advance, commencing on the first day of the applicable Initial Term and on the first day of each Annual Billing Term thereafter. All other fees or charges specified in an Order Form will be invoiced at the rates in effect at the applicable time in accordance with the schedule set forth therein. All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as otherwise expressly provided in this Agreement. The applicable Subscription Fee (as established by the terms of the applicable Order Form, including any addendum or amendment thereto) for added User Accounts and additional recurring services will be prorated for the remaining days in the then-current Annual Billing Term for the applicable Service.
10.1.2 Professional Services are provided on either a time-and-materials or fixed fee basis, as provided 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, Vendor will continue to provide Professional Services under the same rates and terms. Vendor will periodically update Customer on the status of the Professional Services and the fees accrued under applicable Order Forms.
10.1.3 Customer will pay all invoices within thirty (30) days of its receipt thereof, except that Customer may withhold payment of any amount disputed in good faith. The parties will use their best efforts to reconcile any dispute as soon as practicable. Customer must notify Vendor in writing of any disputed fee or charge on an invoice within thirty (30) days of receiving the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10.1.4 Unless otherwise stated, Vendor’s fees and charges do not include any Taxes. Customer is responsible for paying all Taxes associated with its use of Services or other activity hereunder, including those that Vendor is legally obligated to collect from Customer (subject to any valid tax exemption certificate authorized by the appropriate taxing authority). For clarity, Vendor is solely responsible for Taxes assessable against it based on its income, property, and employees.
10.1.5 Except as otherwise specified herein or in an Order Form, all fees, and charges are quoted and payable in United States dollars.
10.1.6 All amounts payable to Vendor under this Agreement shall be paid by Customer to Vendor in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. Vendor will be entitled to setoff any amounts owed by Customer or its Affiliates to Vendor or its Affiliates against amounts owed by Vendor to Customer or its Affiliates.
10.2 Fee Increases. Fees and charges set forth in an Order Form will remain in effect during the applicable Initial Term. The individual recurring fees (e.g., recurring per-User Account fees and other unit prices) used to calculate the total amount of the Subscription Fee and set forth in the Order Form may increase for the Annual Billing Term following the Initial Term by a percentage of the fees and charges in effect during the immediately preceding Initial Term or Renewal Term, as applicable, and such increase will be reflected in the annual invoice for such Annual Billing Term. For clarity, the increase will take effect without further notice to Customer, unless Customer terminates the applicable Order Form in accordance with this Agreement. Vendor also reserves the right to update other fees and charges, such as those for Professional Services, following the expiration of the Initial Term of the applicable Service.
10.3 Billing Information. Customer will provide Vendor with complete and current billing and contact information as requested by Vendor. If any such information is knowingly false or fraudulent, Vendor may suspend or terminate Customer’s and its Users’ access to the Service in addition to any other remedies at law or in equity.
10.4 Non-Payment and Suspension. Vendor may charge (i) interest on any undisputed invoiced amounts which remain unpaid as of the due date at the lesser of one and a half percent (1.5%) per month or the maximum rate permitted by applicable Law, and (ii) Vendor’s reasonable expenses of collection. In addition to any other rights and remedies available to Vendor, Vendor may suspend Customer’s and its Users’ access to any or all Services if any undisputed invoiced amount is thirty (30) days or more overdue or if Customer is in default of any other material provision of this Agreement. Customer will continue to be charged Subscription Fees during any period of suspension.
11. Term; Termination.
11.1 Agreement Term; Renewal.
11.1.1 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.
11.1.2 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 the Order Form will automatically renew for successive twelve (12) month period (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 sixty (60) days prior to expiration of the Initial Term or Renewal Term, as applicable. Renewal Terms shall be subject to the fee increases described in Section 10.2.
11.1.3 Upon at least thirty (30) days’ prior written notice, Customer may reduce the number of User Accounts or terminate an individual Service under any Order Form, effective only upon the expiration of the Initial Term or then-current Renewal Term for such Order Form.
11.2 Other Forms of Termination.
11.2.1 In the event that a party breaches any material 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, in addition to any other remedies available at law or in equity, immediately, upon providing written notice thereof, terminate each Order Form affected by such breach, in whole or in part. Without limiting the generality of the foregoing, Customer’s payment obligations and its obligations under the Acceptable Use Policy will be deemed material provisions of this Agreement.
11.2.2 In addition, Vendor may terminate this 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 becomes insolvent, or seeks protection under any bankruptcy, receivership, trustee, creditor’s arrangement composition or comparable proceeding, or if any such proceeding is instituted against either party and not dismissed within thirty (30) days.
11.2.3 Vendor may also terminate any relevant Service under any Order Form without liability therefor, immediately by written notice to Customer in the event that a change in applicable Law requires a material change in the Service or the manner in which the Service is then provided, and Vendor cannot make such change (a) without incurring material costs that it is not willing to incur, or (b) within the time period as may be directed by applicable Law.
11.2.4 This Agreement and all Subscriptions and Order Forms may be terminated at any time if expressly agreed to in writing by both Customer and Vendor.
11.3 Effect of Termination. Any termination of these Master Terms automatically terminates all Order Forms then in effect. Any termination of a specific Order Form will not serve to terminate any other Order Form or (unless there are no other then-current Order Forms) these Master Terms. Upon expiration of the Subscription Term of any Service or termination of any Order Form, (a) Customer will promptly pay Vendor all amounts owed to Vendor for such Service, (b) the related rights and licenses granted herein to Customer and its Users will immediately terminate, and (c) Customer will, and will cause all Users and Investors to, immediately cease all use of the terminated or expired Service and all related Content and Vendor Technology. Sections 8.3, 9.1, 9.2.1, 10.1, 10.4, 11.3, 11.4, 11.5, 12.4, 13, 14, 16, 20, 22, 23, and any terms so designated in any Exhibit or Appendix to these Master Terms or in any Additional Service Terms shall survive the termination or expiration of this Agreement.
11.4 Refunds. Customer shall not be entitled to any refunds unless Customer terminates any Order Form in connection with an uncured Vendor breach pursuant to Section 11.2.1, or if Vendor terminates any Order Form pursuant to Section 13.3 below to mitigate a claim of infringement or misappropriation. Only upon such event, Vendor shall promptly refund to Customer a pro-rata (based on remaining days) portion of the Subscription Fees under the terminated Order Form for the then-current Annual Billing Term, plus any fees or charges paid in advance for Professional Services not successfully completed as of the effective date of termination.
11.5 Termination Assistance Services.
11.5.1 In connection with any termination or expiration of each Order Form, if requested in writing by Customer, Vendor will provide the Customer Data to Customer or its designee(s) in accordance with Section 8.3. If so requested by Customer, except for any termination arising from a breach of confidentiality, infringement of the Intellectual Property Rights of any Person, nonpayment, or violation of the Acceptable Use Policy, Vendor will continue to provide the Service, subject to and in accordance with the terms and conditions of this Agreement (including Customer’s payment obligations), for a mutually agreed period of time not to exceed six (6) months. Vendor shall not be required to disclose any Confidential Information or other proprietary or competitively sensitive information to any competitor of Vendor.
11.5.2 The provision of the Service during any such transition period will be at the amounts and on the terms and conditions that would have been in effect during such period (i.e., if the Order Form had not been terminated or expired) determined in accordance with Section 10. The terms of this Agreement will continue to govern during any such transition period.
12. Representations & Warranties.
12.1 General Warranties. Each party represents and warrants to the other party that (a) it has the legal power to enter into this Agreement and conduct its business, (b) this Agreement is legally enforceable against such party in accordance with its terms (except as may be limited by applicable Law), (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) it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National (as each term is defined below).
12.2 By Vendor. Vendor represents and warrants to Customer that (a) the Service will perform substantially in accordance with the Documentation under normal use and circumstances, (b) the Service will meet or exceed the Service Levels in accordance with Exhibit 2: Dynamo Support Agreement, and (c) Vendor has all rights necessary to grant the rights and/or licenses granted to Customer in this Agreement.
12.3 By Customer. Customer represents and warrants to Vendor that:
12.3.1 Customer’s entering into the applicable Order Form does not and will not conflict with or violate any other agreement Customer may have with any third party or any applicable Laws;
12.3.2 All Customer Data provided hereunder or processed via the Service is obtained and managed by Customer in compliance with the applicable Laws, including but not limited to any Privacy Laws;
12.3.3 Customer has and will maintain all rights and licenses necessary to provide and make Customer Data available to Vendor and its Affiliates and their respective Personnel, as needed for them to provide the Service and perform their other obligations and exercise their rights contemplated by the Agreement, including to access, import into the Service (on Customer’s behalf), and store Customer Data in accordance with the terms herein or process Customer Data in other ways agreed between the parties, and such processing will not infringe or violate any rights of any third party or applicable Laws; and
12.3.4 Customer has all rights and licenses necessary to grant Vendor and its Affiliates and their respective Personnel access to any integrated or linked Customer-utilized systems and the applicable data stored thereon, and the processing of such data in accordance with this Agreement does not and will not infringe or violate any rights of any third party.
12.4 Disclaimer of Warranties. Because software is inherently complex and may not be free from errors, Vendor advises Customer to verify the results of any service provided and the work product of the Service. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, THE SERVICE, CONTENT, VENDOR TECHNOLOGY, SUPPORT, MAINTENANCE, AND PROFESSIONAL SERVICES ARE PROVIDED “AS-IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND VENDOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, ANY CONTENT, ANY VENDOR TECHNOLOGY, SUPPORT, MAINTENANCE, OR PROFESSIONAL SERVICES. ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ARE HEREBY SPECIFICALLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, VENDOR MAKES NO WARRANTY OF ANY KIND REGARDING ANY THIRD PARTY MATERIALS OR THIRD PARTY APPLICATIONS (ALL OF WHICH ARE PROVIDED “AS IS”) OR THAT THE SERVICE, CONTENT, VENDOR TECHNOLOGY, SUPPORT, MAINTENANCE, OR PROFESSIONAL SERVICES OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE OR FREE OF HARMFUL CODE.
13. Mutual Indemnification.
13.1 Customer will indemnify, defend and hold harmless Vendor, its Affiliates, and its and their respective licensors, officers, directors, employees, agents, successors, and assigns (collectively, “Vendor Indemnitees”) from and against any and all claims, demands, actions, suits, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) incurred by a Vendor Indemnitee in connection with any third party claim to the extent that such claim arises from (a) any use of or access to any Customer Data or Personal Data by Vendor, its Affiliates or their respective Personnel in accordance with this Agreement, (b) any breach, alleged breach, or inaccuracy of any representation or warranty of Customer, or any breach or alleged breach of any covenant or other obligation set forth in this Agreement, in each case, by Customer, its Affiliates, or any of its or their respective Personnel, (c) any use of or access to the Service, Content, Vendor Technology, Third Party Applications, or Third Party Materials by or on behalf of Customer, including any Customer-Derived Content (subject to Vendor’s indemnification obligations in Section 13.2 below), (d) Vendor’s provision of an integration or otherwise transmitting any data to a third party as authorized by Customer, including with respect to data security and use of data, (e) the gross negligence or willful misconduct of Customer, its Affiliates, or any of its or their respective Personnel, or (f) any Excluded Claim (defined below).
13.2 Vendor 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 attorneys’ fees and costs) incurred by Customer in connection with any third party 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 under the governing Law of this Agreement. However, Vendor shall have no obligation under this Agreement for Excluded Claims.
13.3 In the event the Service, Content, or Vendor Technology are, or, in Vendor’s sole discretion, are likely to become, subject to a claim of infringement or misappropriation (except to the extent such claim is an Excluded Claim) of any Intellectual Property Right of a third party, Vendor, at its sole option and expense, shall (subject to the following sentence): (a) procure for Customer the right to continue receiving access to or using the Service, Content, or Vendor Technology, or (b) modify or replace the Service, Content, or Vendor Technology, in whole or in part, to be non-infringing, without materially reducing features and functionality, in which case such modifications or replacements will constitute Service, Content, or Vendor Technology, as applicable, under the Agreement. If neither of the foregoing two options is reasonably available to Vendor, Vendor may terminate the affected Order Form, in whole or in part, by notice to Customer. THIS SECTION, 13.3, TOGETHER WITH THE TERMINATION AND REFUND RIGHTS IN SECTION 11.2.1 AND SECTION 11.4, SET OUT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VENDOR’S SOLE AND EXCLUSIVE LIABILITY IN RESPECT OF ANY ACTUAL, THREATENED, OR ALLEGED CLAIM THAT THE SERVICE, CONTENT, OR VENDOR TECHNOLOGY OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS.
13.4 Indemnification Procedures. The indemnified party shall promptly give the indemnifying party notice of any claim subject to indemnification, but the failure to promptly notify the indemnifying party will not relieve the indemnifying party of any liability hereunder, except to the extent that the indemnifying party is prejudiced. Subject to this Section 13.4, the indemnifying party will assume control of the defense of such claim. The indemnifying party must not settle any claim without the indemnified party’s written consent, which may not be unreasonably withheld, unless the settlement unconditionally releases the indemnified party of all liability. Each party shall provide the other with reasonable assistance in connection with any claim that is the subject of indemnification hereunder. The indemnified party may participate in the defense of any claim, at the indemnified party’s option and expense. Notwithstanding the foregoing, if the indemnified party reasonably determines that a claim may adversely affect it or its Affiliates other than as a result of indemnified monetary damages, the indemnified party may assume the defense of such claim at its expense; provided, that the indemnified party must not settle any claim without the indemnifying party’s written consent, which may not be unreasonably withheld.
14. Limitation of Liability.
14.1 EXCEPT FOR THIRD PARTY CLAIMS RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL OR WILLFUL MISCONDUCT, OR CUSTOMER’S BREACH OF ITS PAYMENT OBLIGATIONS OR OBLIGATIONS IN THE ACCEPTABLE USE POLICY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES FOR LOSSES OR DAMAGES IN ANY AND ALL ACTIONS, HOWEVER BASED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY ORDER FORM (INCLUDING SUCH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER) EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THE ORDER FORM GIVING RISE TO SUCH CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
14.2 EXCEPT FOR THE PARTIES’ INDEMNITY OBLIGATIONS, A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN THE CONFIDENTIALITY AGREEMENT OR A VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, OR COVER), WHETHER IN AN ACTION, IN CONTRACT, BREACH OF WARRANTY, OR TORT, INCLUDING THOSE DUE TO THE USE OF THE SERVICE (OR ANY INTERRUPTION THEREOF), OR DUE TO ANY INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, IN THE CONTENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.3 VENDOR SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY ARISING FROM OR IN CONNECTION WITH (A) CUSTOMER-DERIVED CONTENT, OR (B) THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, OR APPROPRIATENESS OF ANY CUSTOMER PROVIDED DATA.
14.4 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VENDOR SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE OR LOSS RESULTING FROM LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
14.5 Limitation on Disclaimers and Liability Exclusions. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other damages. The disclaimers, limitations of liability, and exclusions set forth herein will not apply to the extent prohibited by applicable Law.
15. Compliance with Laws and Export Control.
15.1 Each party shall abide by all applicable Laws in connection with the performance of its obligations under this Agreement, including Privacy Laws. Vendor will have the right to suspend access to all or any portion of the Service to the extent required in order to avoid a violation of any applicable Law.
15.2 Each party acknowledges and agrees that certain of the services, software, and technology used in connection with this Agreement may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies or the export controls applicable in other jurisdictions. Each party acknowledges and agrees that the Service and Vendor Technology (and the components thereof) shall not be used, provided, exported, or re-exported in, to, or by any Embargoed Countries or Designated Nationals in violation of such export controls.
16. Notices.
16.1 Notices by Vendor. Except as otherwise required by this Agreement, Vendor may give any notice required by this Agreement by means of a general notice on the Service or via email to Customer’s email address on record in Vendor’s account information. Notices provided via email will be deemed given and received on the transmission date of the email. Notwithstanding the foregoing, Vendor shall provide Customer with notice in writing, by certified mail or overnight courier, return receipt requested, at the address specified in the Order Form with respect to any request for indemnification, notice of dispute, or notice of breach or termination.
16.2 Notices by Customer. Customer may give any notice required by this Agreement by any of the following means, and, in each case, such notice shall be deemed given when received by Vendor: (a) email with receipt notification to legal@dynamosoftware.com (for other communication that does not involve notices required by this Agreement, Customer may use support@dynamosoftware.com or such other email specified by Vendor), or (b) notice in writing, by certified mail or overnight courier, return receipt requested, to Vendor at the following address: Attn: Global Client Relations Manager, Dynamo Software, Inc., Suite B200, 480 Pleasant Street, Watertown, MA 02472, U.S.A.
17. Modification to Terms and Policies. An Order Form may be modified only by mutual written agreement between the parties. Vendor reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify these Master Terms or any Policies and to impose new or additional rules, policies, terms, or conditions on Customer’s use of the Service. Vendor will communicate changes to these Master Terms by posting the new version on the Service or its website here, or as otherwise determined by Vendor in its sole discretion, at which time such updated Master Terms will be immediately effective. Customer is responsible for regularly reviewing these Master Terms and Vendor’s Policies. Customer’s continued use of any Services after such notification of changes to these Master Terms will constitute Customer’s acceptance of any and all such changes. Notwithstanding the foregoing, Vendor will notify Customer of any material changes to these Master Terms.
18. Assignment; Change in Control. Customer may not assign its rights or delegate its obligations under this Agreement, in whole or in part, without the prior written consent of Vendor, which consent shall not be unreasonably delayed or withheld. Notwithstanding the foregoing, upon sufficient prior written notice to Vendor, Customer may assign all of its rights and delegate all of its obligations under this Agreement (a) to an Affiliate (other than a portfolio company), (b) in connection with the sale of all or substantially all of its equity or assets, or (c) to a successor by merger, unless Customer receives Vendor’s written objection to such assignment within thirty (30) days of Customer’s written notice. Any purported assignment in violation of this section shall be void. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns. Vendor may immediately terminate this Agreement for cause by written notice in the event Customer undergoes a change of control, or proposes to continue with a change of control despite Vendor’s objection, in each case, that does or will result in Customer Controlling or being Controlled by, directly or indirectly, any direct competitor of Vendor.
19. Force Majeure. Neither party to this Agreement shall be liable for its failure, delay, or hindrance in performing any of its obligations (other than payment obligations) hereunder to the extent such failure, delay, or hindrance is attributable to a Force Majeure Event. The party affected by such event or circumstance will promptly notify the other party of such failure, delay, or hindrance and shall use commercially reasonable efforts to limit the effect of such event or circumstance on the performance of its obligations.
20. Confidential Information and Personal Data. The Confidentiality Agreement shall apply to each party’s receipt, use, and disclosure of Confidential Information and Personal Data in connection with the Agreement. If the GDPR, California Privacy Law, or Privacy Law with equivalent requirements applies to Customer’s processing of Personal Data via the Service, the Dynamo Data Processing Agreement shall also apply. Customer and Vendor acknowledge that, for purposes of any Privacy Laws containing such concepts, Vendor shall act as a data processor in relation to all Personal Data it accesses under this Agreement and Customer is the data controller with respect to such Personal Data.
21. Vendor’s Affiliates and Subcontractors. Vendor may use Affiliates or subcontractors to provide the Service, Content, and Vendor Technology, and the Professional Services, Maintenance, Support, and other services related thereto. Vendor remains responsible for its Affiliates’ and subcontractors’ compliance with Vendor’s obligations under this Agreement.
22. Contracting Entity, Governing Law and Dispute Resolution.
22.1 The Vendor entity entering into this Agreement, the Law governing this Agreement, its interpretation and any legal dispute arising out of or in connection with this Agreement, as well as the applicable venue and dispute resolution rules are as follows:
| If Customer is domiciled in: | Customer is contracting with: | The governing Law is (without regard to conflict of laws provisions): | Dispute resolution and applicable dispute resolution rules and procedures: |
| The United States of America or Canada | Dynamo Software, Inc., a Delaware corporation | Commonwealth of Massachusetts and controlling United States federal Law | Arbitration in Boston, Massachusetts, USA under the rules and procedures of the Judicial Arbitration and Mediation Society (“JAMS”) |
| The United Kingdom | Dynamo Software UK. Ltd., a private limited company incorporated in England | The Laws of England and Wales | The London Court of International Arbitration under the LCIA Arbitration Rules |
| Asia Pacific | Dynamo Software Pte Ltd., a limited liability company incorporated in Singapore | Singapore Law | Arbitration in Singapore by one or more arbitrators appointed in accordance with the Rules of Arbitration of the International Chamber of Commerce |
| Any other country | Dynamo Software Bulgaria, Ltd, a limited liability company incorporated in Bulgaria | Bulgarian Law | The Court of Arbitration at the Bulgarian Chamber of Commerce and Industry in compliance with its Rules for Litigations, based on arbitration agreements |
22.2 The parties hereby irrevocably and unconditionally agree that any dispute between them arising out of or relating to this Agreement shall be settled exclusively by binding arbitration upon a written demand by either party. Any claim related to this Agreement or the Service may not be brought unless brought within one year, beginning on the date when the claim first could be filed. Untimely claims are permanently barred. This applies to Customer, its Affiliates and its and their successors, as well as to Vendor, its Affiliates, and its successors and assigns to the fullest extent permissible under applicable Law.
22.3 Any arbitration proceeding under this Section 22 will take place on an individual basis. Class arbitrations and class or representative proceedings of any kind are not permitted, and Customer expressly waives its ability to participate in a class or representative proceeding against Vendor or its Affiliates. If the arbitration clause is found inapplicable to Customer’s dispute with Vendor, this class waiver will continue to apply in litigation. Customer agrees that this class waiver is an essential element of the agreement between Customer and Vendor and that this class waiver may not be severed. In the event that this class waiver is deemed invalid or unenforceable, then the entire agreement to arbitrate in this Section 22 will be null and void.
22.4 Any dispute or claim subject to arbitration pursuant to this Section 22 must be submitted to binding arbitration in the applicable dispute resolution venue established in this Section 22 above, and shall be administered pursuant to the applicable arbitration rules established in this Section 22 To the greatest extent permissible under applicable Law, the arbitrator will be bound by and will strictly enforce this Agreement, including any limitations of liability contained herein, and may not limit, expand or otherwise modify any of the provisions of the foregoing. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator will award the applicable party any costs and fees to which it may be entitled under Section 13 in connection with any indemnification claim. If Customer is domiciled in the United States, Customer agrees that its transactions with Vendor evidence transactions in interstate commerce, and that the Federal Arbitration Act therefore governs the interpretation and enforcement of this Section 22 (notwithstanding the application of Massachusetts Law to any underlying claims). Customer also agrees that this Section 22 survives any termination of the Agreement or these Master Terms.
23. General.
23.1 Order of Precedence. In the event of any inconsistency or conflict in contract terms, unless a lower priority document expressly supersedes a higher priority document by specifically referencing the inconsistent or conflicting term, the order of precedence will be, from highest to lowest priority: (a) the terms appearing in the applicable Order Form; (b) the terms of any applicable Additional Service Terms, and (c) these Master Terms.
23.2 No Hire. Subject to limitations of applicable Law, during the term of this Agreement and for one (1) year from its termination or expiration, Customer agrees that, without Vendor’s express written consent, it will not, and it will not permit its Affiliates or Personnel to, hire as an employee or engage as an independent contractor or consultant any Vendor Personnel responsible for providing Professional Services, Maintenance, or Support to Customer or otherwise supporting Customer or providing services to Customer in connection with the Service under this Agreement. For the avoidance of doubt, Customer is not prohibited from employing or engaging an individual who (a) initiates contact concerning employment opportunities, or (b) applies for a position in response to a general solicitation of employment.
23.3 Relationship of the Parties. The parties are independent contractors and nothing contained in this Agreement or otherwise will be deemed to create any partnership, joint venture, employment, or agency relationship between the parties or any of their Affiliates, agents, contractors, or subcontractors. The employees of Vendor will not be deemed to be employees of Customer, and the employees of Customer will not be deemed to be employees of Vendor.
23.4 Third Party Beneficiaries. Except as specified in the Agreement, the Agreement does not create any obligations of, or any rights, causes of action, or benefits, in favor of any Person other than Customer and its applicable Affiliates (and their respective successors and permitted assigns) and Vendor and its applicable Affiliates (and their respective successors and permitted assigns).
23.5 Publicity. Except as provided in Section 9.2.2, neither party may use the other party’s Trademarks or otherwise refer to the other party, directly or indirectly in any media releases, public announcements or promotional or marketing materials, without written approval from the other party, which may be given in such party’s sole discretion. Approvals may be given via email.
23.6 Entire Agreement. The Order Form – including these Master Terms, any applicable Additional Service Terms, and any Attachments and Exhibits – constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings between the parties with respect to such matters, whether oral or written. No terms stated in any other Customer purchase order, privacy agreement, vendor agreement or other Customer form agreement will be incorporated into or form any part of the applicable Order Form (including these Master Terms, any applicable Additional Service Terms, and any Attachments and Exhibits) unless such document is signed by an officer of Vendor, explicitly references such Order Form, and states that it is intended to modify such Order Form.
23.7 Interpretation. The headings used in the Agreement are used for convenience only and are not to be considered in construing or interpreting the Agreement. The parties agree that the terms and conditions of the Agreement are the result of negotiations between the parties and that the Agreement will not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement. For purposes of this Agreement, unless the context requires otherwise: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”, and (b) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole.
23.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
23.9 Non-Wavier. The failure or delay of a party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
23.10 Electronic Signatures. This Agreement and associated Order Forms and related documents may be executed and accepted by means of electronic or digital signatures. Any such electronic or digital signature will be deemed to satisfy all requirements imposed on electronic or digital signatures under the Electronic Signatures in Global and National Commerce Act (E-SIGN), and any similar Laws relating to the validity or enforceability of electronic or digital signatures.
23.11 Counterparts. This Agreement and each Order Form may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement or any Order Form delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement or such Order Form.
Exhibit 1: Defined Terms
“Acceptable Use Policy” means Vendor’s Acceptable Use Policy attached hereto as Exhibit 5: Acceptable Use Policy.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Service.
“Agreement” means and consists of the applicable Order Forms (including any Attachments or Exhibits thereto), these Master Terms (including any Schedules and Exhibits hereto or other terms and conditions incorporated by reference herein), and any applicable Additional Service Terms.
“Additional Service Terms” means Service-specific terms and conditions which can be found at the following link: https://www.dynamosoftware.com/legal .
“Affiliate” means any entity that directly or indirectly (through one or more intermediaries) controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this Agreement, means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interests of the subject entity or the legal power to direct or cause the direction of the general management of such entity, whether by contract or otherwise. However, portfolio companies of Customer’s private equity funds shall not be considered Affiliates hereunder.
“Annual Billing Term” means, individually, each twelve (12) – month period following the commencement of the Initial Term.
“APAC” means the Asia Pacific region.
“API Call” has the meaning provided in Section 6.1 of the Master Terms.
“Attachment” means additional terms and conditions specific to an Order Form that are incorporated by reference therein or attached thereto.
“Business Day” means Monday to Friday (excluding major holidays in the jurisdiction of the governing Law established in Section 22.1 of the Master Terms).
“Business Hours” means 9 AM to 6 PM during Business Days, respectively: (a) US EST/EDT, if a User is located in North America or South America, (b) CEST/CEDT, if a User is located in the EMEA, and (c) SGT if a User is located in the APAC.
“California Privacy Law” means the California Consumer Privacy Act of 2018 (California Civil Code §1798.100 et seq.), as amended from time to time, including by the effective provisions of the California Privacy Rights Act of 2020.
“Confidential Information” has the meaning provided in Exhibit 4: Confidentiality Agreement, attached to the Master Terms.
“Confidentiality Agreement” means the Confidentiality Agreement set forth on Exhibit 4: Confidentiality Agreement, attached to the Master Terms.
“Content” means audio, video, image, data, and text owned by Vendor, or created by Vendor (whether or not in connection with this Agreement), including templates, Microsoft Excel-based report and transaction definitions, training materials, and forms owned or created by Vendor, and provided or made available to Customer or its Users through the Service or otherwise pursuant to an Order Form, including any Modifications to any of the foregoing. For clarity, “Content” does not include any Customer Data, Customer-Derived Content, or any audio, video, image, data, or text owned by a third party.
“Customer” has the meaning provided in the preamble of the Master Terms.
“Customer Data” means (a) Customer Provided Data, and (b) the content of any reports, summaries, output, or other data, information or materials derived solely from, or incorporating only, Customer Provided Data, and that are created, generated, or processed via the Service by Customer or any User, which, in each case, is not publicly available.
“Customer-Derived Content” means modifications or derivative works based on Content that are made by Customer or by a third party (including Customer’s Affiliates) on behalf of Customer.
“Customer Indemnitees” has the meaning provided in Section 13.2 of the Master Terms.
“Customer Provided Data” means any data, information or material that (a) Customer or any User enters into the Service in the course of using the Service (including, without limitation, documents, email messages, content and attachments), (b) is gathered or collected through the Service directly from third parties at Customer’s or a User’s request, or (c) Vendor receives from or on behalf of Customer outside of the Service in the course of providing Professional Services for purposes of importing such data, information, or material into the Service, in each case, in any format, including hard copy and electronic versions thereof.
“Designated National” means a national or resident of an Embargoed Country, or any Person that, at any time relevant to this Agreement, is on the U.S. Department of Treasury’s List of Specially Designated Nationals, the U.S. Department of Commerce’s Table of Denial Orders, or any analogous list of the competent authority in the jurisdiction of governing Law established pursuant to Section 22.1 of the Master Terms.
“Disclosing Party” has the meaning provided in Exhibit 4: Confidentiality Agreement, attached to the Master Terms.
“Documentation” means the standard user documentation, manuals, and user guides available to Customer and its Users within the Service, in each case, as may be amended or supplemented by Vendor from time to time.
“Dynamo Data Processing Agreement” means the Dynamo Data Processing Agreement set forth on Exhibit 3: Dynamo Data Processing Agreement, attached to the Master Terms.
“Dynamo Support Agreement” means the Dynamo Support Agreement set forth on Exhibit 2: Dynamo Support Agreement, attached to the Master Terms.
“Effective Date” means the Order Effective Date for the first Order Form executed hereunder.
“Embargoed Country” means any country as to which the United States or the jurisdiction of governing Law established pursuant to Section 22.1 of the Master Terms maintains an embargo at any time relevant to the Agreement.
“EMEA” means the Europe, Middle East, and Africa region.
“Error” means any failure of the Service to perform substantially in accordance with the Documentation under normal use and circumstances.
“Excluded Claim” means any claim arising from any infringement or misappropriation (or alleged infringement or misappropriation) resulting from or caused by (a) access to or use of the Service, Content, or Vendor Technology in combination with any products, service, hardware, system, software, network, business process(es), or other materials or service not provided by Vendor or specified for Customer’s use in the Documentation or the Agreement, (b) Third Party Applications or Third Party Materials, (c) Customer Data, (d) any Customer-Derived Content, (e) any other modification of the Service, Content, or Vendor Technology made without Vendor’s specific written approval, (f) failure to timely implement any Modifications made available to Customer by or on behalf of Vendor, or (g) any misuse of the Service, Content, or Vendor Technology.
“Force Majeure Event” means any circumstance or cause beyond a party’s reasonable control and not caused by such party, its agents or employees, including, without limitation, (a) acts of God, (b) flood, fire, earthquake, severe weather event, explosion, accident, epidemic, quarantine or other natural or man‑made disaster, (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, sabotage, riot, national or regional emergencies or other civil disturbances, (d) acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), embargoes or blockades, (e) strikes, lockouts, labor stoppages or slowdowns or other industrial disturbances, and (f) outage or shortage of adequate power, telecommunications, internet, supplies, raw materials, fuel, infrastructure or transportation.
“GDPR” means the EU General Data Protection Regulation 2016/679.
“Harmful Code” means software viruses, worms, time bombs, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs.
“Initial Term” means, for each Service or each engagement for Professional Services, as applicable, the initial term specified in the applicable Order Form beginning on the Order Effective Date for such Order Form.
“Intellectual Property Rights” means any or all of the following and all rights in, arising out of or associated therewith throughout the world: (a) all inventions (whether or not patentable), improvements thereto and all patents and applications therefor and all reissues, divisions, divisionals, renewals, extensions, provisionals, continuations, continuations-in-part, documents and filings claiming priority to or serving as a basis for priority thereof, (b) works of authorship, copyrights (including computer software programs), copyrights registrations and applications therefor, and all other rights corresponding thereto, (c) trade secrets and all proprietary information, including non-public know how, technology, business methods, technical data and customer lists, and all documentation relating to any of the foregoing, (d) all Trademarks, (e) all industrial designs and any registrations and applications therefor, (f) all databases and data collections and all rights therein, (g) all moral rights of authors and inventors, however denominated, (h) all web sites, domain names, internet addresses or related registrations, and (i) any similar or equivalent rights to any of the foregoing.
“Investors” means Customer’s then-current shareholders, members, limited partners, or other holders of record of Customer’s equity, as applicable.
“Laws” means local, state, national, and foreign laws, rules, treaties, regulations, ordinances, and other decrees of any governmental authority.
“Maintenance” means the design, development, implementation, and deployment of Modifications that are not custom-developed exclusively for any customer. For clarity, Maintenance does not include any design, development, or implementation that is specific to Customer, its Affiliates, or any User.
“Maintenance Window” means Saturday or Sunday between 11 PM the prior day to 6 AM, respectively: (a) US EST/EDT, if a User is located in North America or South America, (b) CEST/CEDT, if a User is located in the EMEA, and (c) SGT if a User is located in the APAC.
“Mobile Application” means a mobile or tablet website or application.
“Modification” means changes, Upgrades, Updates, modifications, or enhancements to, or derivative works of, a Service or Vendor Technology made by or on behalf of Vendor.
“Order Form” means an ordering document (as amended or supplemented from time to time in accordance with this Agreement) between Vendor and Customer (or a Customer Affiliate) evidencing the Subscription for the applicable Service or order for the applicable Professional Services and any subsequent ordering document for any Service or Professional Services, specifying, among other things, (a) that such ordering document is governed by the terms of this Agreement, (b) the number of User Accounts and other services contracted for, (c) the applicable fees, (d) the billing period, and (e) other charges as agreed to between the parties. An Order Form may be a written or an electronic agreement, and may also include online forms or terms that have been “accepted” or “agreed” by Customer. For purposes of the Master Terms and any Additional Service Terms, unless the context requires otherwise, any reference to an Order Form includes any Attachments or Exhibits thereto.
“Order Effective Date” means, for the applicable Order Form, the effective date set forth therein or, if no such date is specified, the later of the dates of signature of such Order Form by the parties.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Data” means that portion of Customer Data that is subject to Privacy Laws.
“Personnel” means agents, employees, officers, directors or contractors employed, engaged or appointed by a Person.
“Policies” means any and all Vendor policies incorporated into this Agreement by reference or posted on the Service, including Vendor’s privacy policy (located at https://www.dynamosoftware.com/privacy-policy/) and Acceptable Use Policy.
“Privacy Laws” means applicable Laws, in any and all relevant jurisdictions worldwide, that relate to (a) the confidentiality, collection, use, handling, processing, protection, destruction, transfer or free movement of personal data, personally identifiable information or customer information, (b) electronic data privacy, (c) trans-border data flow and/or (d) data protection.
“Professional Services” means any consulting, advisory, technical, development, programming, or other professional services provided by Vendor (or its Affiliates or sub-contractors) to Customer or Customer’s Affiliates from time to time, including services related to data collection, categorization, scraping, and entry and the installation, integration, implementation, use, optimization, configuration or customization of a Service, in each case, as specified in an Order Form.
“Receiving Party” has the meaning provided in Exhibit 4: Confidentiality Agreement attached to the Master Terms.
“Renewal Term” has the meaning assigned in Section 11.1.2 of the Master Terms.
“Service” means any or all of the following, including any Modifications thereto, as applicable: (a) Vendor’s software applications, hosted on a computing system owned, operated, and/or controlled by Vendor or any Vendor Affiliate, that are ordered by Customer or Customer’s Affiliates under any Order Form and remotely accessed by Customer and its Users, including via a website on the World Wide Web or Mobile Application designated by Vendor, (b) associated online or offline components described in any Order Form or otherwise provided to Customer or Customer’s Affiliates by Vendor (or its Affiliates or sub-contractors) pursuant to an Order Form, including, where applicable, certain other Vendor Technology, in each case, to the extent required for the provision and use of such hosted software applications, and (c) all other software and work product developed for or provided to Customer or its Affiliates by Vendor (or its Affiliates or subcontractors) in the performance of any Professional Services, Maintenance or Support. References to the Service excludes any Third Party Application and the provision of Professional Services, Maintenance, and Support.
“Subscription” means the right to access and use a Service during the applicable Subscription Term, subject to payment of fees and charges pursuant to this Agreement.
“Subscription Administrator” (also referred to as “License Administrator” in Order Forms) means each User designated by Customer in accordance with this Agreement who is authorized to (a) order Subscriptions, additional User Accounts, and additional services by submitting (and, where required, executing or accepting) Order Forms, or any addendum or amendment thereto, whether in writing or online via the Service, (b) create User Accounts, and (c) otherwise administer Customer’s and its Users’ use of and access to the Service.
“Subscription Fee” means (a) the access fee for each applicable Service equal to the then-current number of total User Accounts (whether or not actively used) under the applicable Order Form multiplied by the per-User Account fee in effect at the applicable time, plus (b) any other on-going/recurring service fees under that Order Form.
“Subscription Term” means, for the applicable Service, the period commencing on the applicable Order Effective Date and continuing until the expiration of the applicable Initial Term, all Renewal Terms, if any, and any termination assistance period for such Service established pursuant to Section 11.5 of the Master Terms, if any, unless earlier terminated in accordance with the terms of this Agreement.
“Support” means the telephone or remote electronic support services set forth in Section 2 of Exhibit 2: Dynamo Support Agreement.
“Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.
“Third Party Applications” means any software application (including any Web-based application) not developed or owned by Vendor that interoperates with a Service, including any software application developed by Customer or by a third party on Customer’s behalf.
“Third Party Materials” means data, content, software, or other materials, including templates, Microsoft Excel-based report and transaction definitions, training materials, and forms, provided by a third party that are not Third Party Applications and that are not owned by Vendor.
“Trademarks” means business names, product names, trademarks, service marks, brand names, or logos, whether registered or unregistered.
“Update” means a permanent fix or solution to a known problem or bug in the Service.
“Upgrade” means a major revision to the Service, which adds new and different functions or capabilities to the Service.
“User” means any employee, representative, consultant, contractor, or agent of Customer or its Affiliates who is authorized by a Subscription Administrator in accordance with this Agreement to use a Service and who has been supplied Access Credentials in accordance with this Agreement for access to such Service.
“User Account” (also referred to as “User License” in Order Forms) means the right to access to the Service associated with the Access Credentials allocated to an individual User in accordance with this Agreement.
“Vendor Indemnitees” has the meaning provided in Section 13.1 of the Master Terms.
“Vendor Technology” means all proprietary technology (including as identified in an Order Form, and any other software, hardware, networks, systems, products, processes, algorithms, data, user interfaces, know-how, techniques, designs, requirements, plans, and other tangible or intangible technical material or information) of Vendor or its Affiliates or licensors made available to, or otherwise utilized by Vendor or its Affiliates to perform Vendor’s obligations for, Customer, Customer’s Affiliates, or any of their respective Users in connection with this Agreement, including any Modifications thereto.
Exhibit 2: Dynamo Support Agreement
This Dynamo Support Agreement supplements the Master Terms and is a part of the Agreement between Customer and Vendor, and it describes the Support and Maintenance to be provided by Vendor in connection with the Service.
1. Additional Definitions. The following terms have the assigned meanings for purposes of this Dynamo Support Agreement. All capitalized terms used, but not otherwise defined, in this Dynamo Support Agreement will have the meaning assigned to such term in Exhibit 1: Defined Terms.
1.1 “Designated Contacts” means employees, representatives, consultants, contractors, or agents of Customer or its Affiliates who have been authorized by Customer to contact Vendor for Support and who Customer has designated for such purposes in writing to Vendor. Customer may change its Designated Contacts from time to time upon written notice to Vendor.
1.2 “Emergency Support” means Support provided in response to a Severity 1 Error or Severity 2 Error.
1.3 “Service Level Failure” means a material failure to meet any Service Level.
2. Support and Maintenance.
2.1 Support Plans. During the applicable Subscription Term, subject to the terms and conditions of this Agreement, Vendor shall provide Customer with the level of Support listed in Table 1 that corresponds to the support plan designated in Customer’s Order Form (“Support Plan”).
Table 1
| Plan Features/Plan Type | Standard | Premium |
| Web Helpdesk tickets | Unlimited | Unlimited with priority |
| Updates/Upgrade | Yes | Yes |
| Support by Phone or E-Mail within Business Hours | – | Yes |
| After Business Hours Emergency Support | – | Yes |
| Assigned Client Success Manager/ Dedicated Support Rep/TAM | – | Yes |
| Increased engagement with Dynamo team
· Roadmap updates and feature reviews · Invitations to all client roundtables · Two free passes to Dynamo University · Introductions to similar clients |
– | Yes |
| Other features | – | As described in an Order Form |
2.2 Designated Contacts. Customer shall designate at least one (1) but no more than three (3) Designated Contacts for each Service. Only a Designated Contact is permitted to make requests for Support.
2.3 Scope of Support. During the applicable Subscription Term, Vendor will undertake to provide technical Support to assist the Designated Contact(s) in utilizing the Service and in identifying and providing Workarounds (as defined below), if possible, for Errors. Customer shall, and shall ensure its Designated Contact(s), reasonably cooperate with Vendor’s provision of Support, including by providing such information and access to Customer resources as Vendor may reasonably require in order to provide such Support. For the avoidance of doubt, Support is not intended to replace appropriate staff training, and, in response to repeated requests by Customer’s Designated Contact(s) regarding “how to use” help, Vendor may direct the Designated Contact(s) to the Documentation or recommend Customer order additional training, which will be provided at the then prevailing training rates.
2.4 Telephone, E-Mail, and Web Helpdesk Support. The Designated Contact(s) will be given the telephone number for Vendor’s Support line and web-based helpdesk accounts for accessing Vendor’s support website (which is currently https://dynamosoftware.zendesk.com/) (the “Web Helpdesk”). The Designated Contact(s) may use such methods of communication to contact Vendor’s Support team according to the terms of Customer’s Support Plan. The Designated Contact(s) may provide Error Notices to Vendor in writing (via the Web Helpdesk) and consult with Vendor technical analysts concerning Error resolution, diagnosing error messages and providing Workarounds for Errors. For the avoidance of doubt, on-site support is not included in any Support Plan.
2.5 Remote Access Support. Upon the request or consent of a Designated Contact, Customer shall promptly provide Vendor with remote, electronic access (via a remote access tool of Vendor’s choice) to Customer’s computing system, solely to the extent Vendor determines is necessary or appropriate in order to assist the Designated Contact in identifying an Error or otherwise providing Support. Customer shall timely procure appropriate licenses and/or permits necessary for Vendor to provide such Support.
2.6 Maintenance; Updates and Upgrades. During the applicable Subscription Term, subject to the terms and conditions of this Agreement, Customer will be entitled to receive all Maintenance provided by Vendor. Except as otherwise expressly set forth herein, Vendor may provide Maintenance (including the implementation and deployment of Updates and Upgrades in Vendor’s production environment) at such times as Vendor deems appropriate or necessary, without notice to Customer. Without limiting the generality of the foregoing, Customer acknowledges that Vendor may from time to time implement and deploy Updates or Upgrades of any Mobile Application, and in certain cases, Vendor may automatically and remotely implement and deploy Updates or Upgrades to the version of such Mobile Application that Customer and its Users are using on their respective mobile devices. Customer consents (on behalf of itself and its Users) to any such automatic and remote implementation and deployment on the mobile devices of Customer and its Users.
3. Service Levels
3.1 Availability. Subject to the terms and conditions of this Agreement, Vendor will use commercially reasonable efforts to make each Service Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar month during the applicable Subscription Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exclusions described below in Section 4.1 of this Dynamo Support Agreement (the “Availability Requirement”). “Available” means the applicable Service is available for access and use by Customer and its Users over the Internet (including via a secure connection (such as VPN)) and operating in material accordance with the Documentation.
3.2 Error Reporting and Classification. Customer will provide Vendor via the Web Helpdesk with a notice of each Error describing the Error in sufficient detail for Vendor to identify and categorize the severity of the Error (“Error Notice”). Vendor will determine the severity of each Error in its reasonable discretion in accordance with the following:
| Severity Level | Description |
| Severity 1 Error (Critical) | The Service is functionally unusable for all Users. |
| Severity 2 Error (Serious) | Essential functions of the software malfunction, affecting the majority of the Users and having a material negative effect on their ability to use the Service for its purpose. |
| Severity 3 Error (Non-critical) | A non-critical function of the Service malfunctions, which results in no material impact on the functionality of the Service. |
3.3 Error Response. In response to an Error Notice, Vendor will follow the process below in accordance with Table 2 (the “Error Response Requirement”, and, collectively with the Availability Requirement, the “Service Levels”). The timelines set forth in Table 2 will be measured from the time that Vendor’s Support team receives an Error Notice. No Support Breach will be deemed to occur in connection with any (a) delays resulting from the unavailability or inaccessibility of Customer or its Designated Contact, (b) failure of Customer or its Designated Contact to reasonably cooperate with Vendor’s provision of Support, or (c) any Error resulting, in whole or in part, from an Exclusion. Further, Customer acknowledges and agrees that the timelines in Table 2 will be inapplicable to any Error with regards to which Customer or its Designated Contact has (i) requested a response from a specific support analyst, or (ii) elected to communicate with Vendor using a means (including e-mail or telephone) other than the Web Helpdesk, and Customer hereby waives any claim relating to a Support Breach arising in connection with such Errors.
3.3.1 Step 1 – Response. Vendor will acknowledge to Customer its receipt of an Error Notice (a “Response”) and may request additional information from Customer necessary to correct the Error. Customer will provide any reasonably requested information relating to the Error, including any information on the location of the Error within the Customer’s software architecture (if applicable). Upon Vendor’s request, Customer will assist Vendor in attempts to reproduce the Error.
3.3.2 Step 2 – Workaround. In the event that an Update cannot be created immediately, Vendor will use commercially reasonable efforts to provide a temporary patch, correction, or workaround (a “Workaround”) to the reported Error. Vendor will not be required to provide a Workaround if, in providing an acceptable solution to the reported Error, Vendor provides an Update.
3.3.3 Step 3 – Resolution. Vendor will use commercially reasonable efforts to provide an Update.
Table 2
| Severity Level | Response | Workaround* | Update* |
| Severity 1 Error (Critical) | 6 Business Hours | Next Business Day | 3 Business Days |
| Severity 2 Error (Serious) | 1 Business Day | 3 Business Days | 10 Business Days |
| Severity 3 Error (Non-critical) | 2 Business Days | To be coordinated with Vendor on a case-by-case basis | Next scheduled Upgrade |
*Workaround and resolution/Update times will be subject to the following: (a) they will apply only for Errors in the software that are not caused by Customer’s technical environment, third party software, or other factors beyond Vendor’s control; and (b) if Customer is self-hosted, such times (i) will be conditional upon Vendor being given the necessary access to Customer’s technical environment and the installed software; and (ii) will start running from the moment Vendor is given such access.
3.4 Service Level Failure; Remedies.
3.4.1 Service Level Credits. Subject to the remainder of this Section 3.4, in the event that Vendor fails to meet the Availability Requirement for any Service, Vendor will issue a credit against the portion of the Subscription Fee allocable (on a pro rata basis) to accessing the applicable Service during the applicable Service Period (a “Service Level Credit”). The Service Level Credit will be an amount equal to the applicable portion of the Subscription Fee multiplied by the Service Level Credit percentage in Table 3 below corresponding to the actual Service Availability during the applicable Service Period, excluding unavailability as a result of any of the Exclusions described below in Section 4.1 of this Dynamo Support Agreement. To be eligible for a Service Level Credit, Customer must provide Vendor with written notice requesting such Service Level Credit no later than thirty (30) days after the end of the Service Period in which the failure occurred.
Table 3
| Service Availability | Service Level Credit Percentage |
| 98.0% to 99.49% | 10% |
| 95.0% to 97.99% | 25% |
| 80.0% to 94.99% | 75% |
| 79.99% or below | 100% |
3.4.2 If a Severity 1, or Severity 2 Error(s) makes essential features of the Service unavailable but no unavailability has been registered by Vendor, Customer will notify Vendor about the Error(s) by submitting an Error Notice and, if no Workaround or Update has been provided within the time specified in Table 2 (in Section 3.3.3) above, Customer will be eligible to receive a Service Level Credit for the time beyond the Workaround or Update time that passes before the Workaround or Update, as applicable, is implemented, calculated in accordance with the Table 3 (in Section 3.4.1.) above.
3.4.3 Exclusive Remedies. Notwithstanding anything to the contrary set forth in the Master Terms, this Section 3.4 sets forth Vendor’s sole obligation and liability and Customer’s sole and exclusive remedy (other than any refund to which Customer may be entitled under Section 11.4 of the Master Terms) for (a) any breach of Vendor’s warranties in clauses (a) and (b) of Section 12.2 of the Master Terms, or (b) any Service Level Failure. Customer acknowledges and agrees that the pricing of Vendor’s products and services reflects the allocation of risk and the limitations of liability contained in this Dynamo Support Agreement and the Agreement generally. If any remedy under this Dynamo Support Agreement is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth in the Agreement shall remain in full force and effect.
4. Support Exclusions.
4.1 Vendor is not required to provide any Support for, and the Service Levels will not apply to, any Errors, Service Level Failures, or impaired ability of Customer or its Users to access or use the Service that is due, in whole or in part, to any: (a) access to or use of the Service by Customer or any User, or using Customer’s or an User’s Access Credentials, that does not strictly comply with this Agreement and the Documentation, (b) delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement, (c) Customer’s or any User’s Internet connectivity, (d) Force Majeure Event, (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Vendor pursuant to this Agreement, (f) unavailability during the Maintenance Window, (g) disabling, suspension, or termination of the Service as expressly permitted in this Agreement, (h) Customer’s failure to implement all currently available Updates and Upgrades, (i) changes to Customer’s operating system, hardware, network, or environment that adversely affects the Service, (j) any alteration of, or addition to, the Service performed by any party other than Vendor or its Affiliates, (k) negligence regarding cybersecurity, or (l) integration of the Service with any Third Party Application(s) or use of other Third Party Materials (collectively, “Exclusions”).
4.2 Support Plans do not include Support for any hardware or software operated by Customer that was not supplied by Vendor, including computers, hard disks, operating systems, databases, Third Party Applications, and Third Party Materials.
4.3 Portions of the Service that have been modified, portions of the Service which have data tables that have been modified (including the manual addition and deletion of data) by any method other than directly through the Service’s user interface, and program objects that have been modified are not eligible for Support or Maintenance. Additionally, modified portions of programs that post data to other modules or database tables may limit the extent of the Support that Vendor will be able to provide on the unmodified modules and programs. Vendor’s Support team cannot assist in the direct manipulation of database contents. If an issue is reported to Vendor’s Support team that is the result of modifications to the data tables or program objects, Support activities for that particular issue will cease, and the Vendor Support team will notify Customer that the issue is beyond the scope of Support and this Dynamo Support Agreement. Time expended to discover that the issue is related to such modifications will be billed back to Customer at the then prevailing Vendor Professional Services hourly rates.
Exhibit 3: Dynamo Data Processing Agreement
This Dynamo Data Processing Agreement (“DPA”) supplements the Master Terms and is a part of the Agreement between Customer (on behalf of itself and, for purposes of this DPA, as agent for its Affiliates) and Vendor (on behalf of itself and, for purposes of this DPA, as agent for its Affiliates), and it governs the processing of Personal Data by Vendor or its Affiliates on behalf of Customer and its Affiliates to the extent such processing is subject to the GDPR, the California Privacy Law, or any other Privacy Law containing similar rights and obligations.
1. Additional Definitions. The following terms have the assigned meanings for purposes of this DPA. All capitalized terms used, but not otherwise defined, in this DPA will have the meaning assigned to such term in Exhibit 1: Defined Terms.
1.1 “Customer Group Member” means Customer or any Customer Affiliate.
1.2 “Customer Personal Data” means any Personal Data covered by any Data Protection Law that is Processed by a Contracted Processor on behalf of a Customer Group Member pursuant to or in connection with the Agreement.
1.3 “Contracted Processor” means Vendor or a Subprocessor.
1.4 “Data Protection Laws” means EU Data Protection Laws, the California Privacy Law, or any other Privacy Law containing similar rights and obligations, in each case, to the extent applicable in accordance with their respective terms.
1.5 “EEA” means the European Economic Area.
1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR.
1.7 “Restricted Transfer” means:
(a) a transfer of Customer Personal Data from any Customer Group Member to a Contracted Processor; or
(b) an onward transfer of Customer Personal Data from a Contracted Processor to a Contracted Processor, or between two facilities of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws). For the avoidance of doubt: (i) without limiting the generality of the foregoing, the parties to this DPA intend that transfers of Customer Personal Data from the United Kingdom to the EEA or from the EEA to the United Kingdom, shall be Restricted Transfers for such time and to such extent that such transfers are prohibited by Data Protection Laws of the United Kingdom, if any, or EU Data Protection Laws (as the case may be), and (ii) where a transfer of Customer Personal Data is of a type authorized by Data Protection Laws in the exporting country, including transfers from within the European Union to a country (such as Switzerland), or pursuant to a scheme, that has been approved by the Commission (provided such approval has not been revoked) as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer.
1.8 “Standard Contractual Clauses” means standard contractual clauses adopted (a) by the Commission (in the case of the Data Protection Laws of the European Union or a Member State), or (b) by an equivalent competent authority under another Data Protection Law.
1.9 “Subprocessor” means any Person (including any third party and any Vendor Affiliate, but excluding any individual Personnel of Vendor or any of its sub-contractors) appointed by or on behalf of Vendor or any Vendor Affiliate to Process Customer Personal Data on behalf of any Customer Group Member in connection with the Agreement.
1.10 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the applicable Data Protection Law, and their cognate terms shall be construed accordingly.
2. Authority. Vendor warrants and represents that, before any Vendor Affiliate Processes any Customer Personal Data on behalf of any Customer Group Member, Vendor’s entry into this DPA as agent for and on behalf of that Vendor Affiliate will have been duly and effectively authorized (or subsequently ratified) by that Vendor Affiliate.
3. Processing of Customer Personal Data.
3.1 Vendor shall, and shall ensure that each relevant Vendor Affiliate does,:
(a) comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
(b) not Process Customer Personal Data other than on the relevant Customer Group Member’s reasonable documented instructions (including those set forth in the Agreement or this DPA), unless Processing is required by applicable Laws to which the relevant Contracted Processor is subject, in which case Vendor shall, or shall require the relevant Vendor Affiliate to, to the extent permitted by applicable Laws, inform the relevant Customer Group Member of that legal requirement before the relevant Processing of that Customer Personal Data.
3.2 Each Customer Group Member:
(a) instructs Vendor and each Vendor Affiliate (and authorizes Vendor and each Vendor Affiliate to instruct each Subprocessor) to:
(i) Process Customer Personal Data; and
(ii) in particular, transfer Customer Personal Data to any country or territory (except for any Restricted Transfer, which may require the execution of Standard Contractual Clauses or other actions required by applicable Data Protection Laws),
in each case, as reasonably necessary for the provision of the Service, Content, Vendor Technology, Support, Maintenance, or Professional Services and consistent with the Agreement; and
(b) warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in Section 3.2(a) of this DPA on behalf of each relevant Customer Affiliate.
3.3 If Customer’s use of the Service requires a Restricted Transfer, Customer (and Vendor at Customer’s instruction) will take all appropriate steps to ensure that the relevant regulatory requirements are met, which could involve among others: (a) the use of Standard Contractual Clauses executed between the relevant Customer Group Member that is the data exporter and the Vendor as data importer, (b) filing with the appropriate regulatory agency, if required by the Data Protection Laws applicable with regard to the transfer, and (c) taking such other steps as may be appropriate to ensure compliance with the Data Protection Laws.
3.4 Annex 1 to this DPA sets out certain information regarding the Contracted Processors’ Processing of the Customer Personal Data as required by article 28(3) of the GDPR (and any equivalent requirements of other Data Protection Laws). Customer may request amendments to Annex 1 by written notice to Vendor from time to time as Customer reasonably considers necessary to meet the requirements of applicable Data Protection Laws, and Vendor will not unreasonably withhold, delay, or condition its agreement to such amendments. Nothing in Annex 1 (including as amended pursuant to this Section 3) confers any right or imposes any obligation on any party to this DPA.
4. Vendor and Vendor Affiliate Personnel. Vendor shall, and shall ensure that each Vendor Affiliate does, take reasonable steps to ensure the reliability of any Personnel of any Contracted Processor who may have access to Customer Personal Data. Further, Vendor shall, and shall ensure that each relevant Vendor Affiliate does, (a) strictly limit access to Customer Personal Data to those individuals who need to know / access the relevant Customer Personal Data as strictly necessary for the purposes of the Agreement, (b) ensure that each such individual complies with Data Protection Laws in the context of that individual’s duties to the Contracted Processor, and (c) ensure that each such individual is subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5. Security.
5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Vendor shall, and shall ensure that each relevant Vendor Affiliate does, in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
5.2 In assessing the appropriate level of security, Vendor shall, and shall ensure that each relevant Vendor Affiliate does, take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6. Subprocessing.
6.1 Each Customer Group Member authorizes Vendor and each Vendor Affiliate to appoint (and permit each Subprocessor appointed in accordance with this Section 6 to appoint) Subprocessors in accordance with this Section 6 and any restrictions in the Agreement.
6.2 Vendor and each Vendor Affiliate may continue to use those Subprocessors already engaged by Vendor or any Vendor Affiliate as of the Effective Date, subject to Vendor or the relevant Vendor Affiliate meeting the obligations set out in Section 6.4 of this DPA as soon as practicable.
6.3 Vendor shall give Customer prior written notice of the appointment of any new Subprocessor, including a legally sufficient description of the Processing to be undertaken by the Subprocessor. If, within 5 Business Days of receipt of that notice, any Customer Group Member notifies Vendor in writing of any objection (on reasonable grounds) to the proposed appointment, neither Vendor nor any Vendor Affiliate may appoint (or disclose any Customer Personal Data to) that proposed Subprocessor to Process Customer Personal Data until reasonable steps have been taken to address the objection(s) raised by such Customer Group Member and Customer has been provided with a reasonable written explanation of the steps taken.
6.4 With respect to each Subprocessor, Vendor shall, and shall ensure that each relevant Vendor Affiliate does:
(a) before the Subprocessor first Processes Customer Personal Data (or, where relevant, in accordance with Section 6.2 of this DPA), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Customer Personal Data required by this DPA and the Agreement;
(b) take all reasonable measures to ensure that the arrangement between on the one hand (a) Vendor, (b) the relevant Vendor Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this DPA and that otherwise meet the requirements of article 28(3) of the GDPR (to the extent the GDPR is applicable) or equivalent requirements under any other applicable Data Protection Law; and
(c) if the arrangement involves a Restricted Transfer, ensure that Standard Contractual Clauses are at all relevant times incorporated into the relevant agreements, or, to the extent that the Standard Contractual Clauses are not sufficient, take such other actions as may be required by applicable Data Protection Laws to ensure that the transfer is permitted under such Data Protection Laws.
6.5 Vendor shall, and shall ensure that each relevant Vendor Affiliate does, provide to Customer for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential terms and information not relevant to the requirements of this Addendum) as Customer may reasonably request in writing from time to time.
6.6 Vendor shall, and shall ensure that each relevant Vendor Affiliate does, take all reasonable measures to ensure that each Subprocessor performs, to the extent practically possible, the obligations under Sections 3.1, 4, 5, 7.1, 8.2, 9, and 11.1, as each such Section applies to Processing of Customer Personal Data carried out by that Subprocessor, in each case, as if it were party to this DPA in place of Vendor and to the same extent Vendor is obligated thereunder.
7. Data Subject Rights.
7.1 Taking into account the nature of the Processing, to the extent required by applicable Data Protection Laws, Vendor shall, and shall ensure that each relevant Vendor Affiliate does, use commercially reasonably means to cooperate with and assist each Customer Group Member (including by implementing technical and organizational measures) in responding to and fulfilling any requests from Data Subjects with respect to the Data Subject’s Personal Data, including requests to access, delete, or change Personal Data. Notwithstanding anything to the contrary herein, nothing in this Section 7 shall in any way prohibit Vendor from responding to and fulfilling its obligations to any Data Subject under applicable Law.
7.2 Without limiting the generality of Section 7.1 of this DPA, Vendor shall, upon the request of Customer, or as otherwise provided by applicable Law, promptly delete any Personal Data from its records and direct any relevant agents, consultants or contractors to delete such Personal Data from their records, unless such action is prohibited by professional obligations or applicable Law.
7.3 Vendor shall:
(a) promptly notify Customer upon Vendor becoming aware that any Contracted Processor has received a request directly from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
(b) ensure that the Contracted Processor does not respond to that request except on the documented instructions of the relevant Customer Group Member or as required by applicable Laws to which the Contracted Processor is subject, in which case Vendor shall, to the extent permitted by applicable Laws, inform Customer of that legal requirement before permitting the Contracted Processor to respond to the request.
8. Personal Data Breach.
8.1 Vendor shall notify Customer without undue delay upon Vendor becoming aware of a Personal Data Breach affecting Customer Personal Data (whether such Personal Data Breach was incurred directly by Vendor or by a Subprocessor). Thereafter, Vendor shall provide Customer with information requested in writing by Customer as necessary to allow each Customer Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 Vendor shall cooperate with each Customer Group Member by providing relevant information requested by such Customer Group Member regarding the investigation, mitigation, and remediation of each such Personal Data Breach. Such information shall be deemed Vendor’s Confidential Information.
9. Data Protection Impact Assessment and Prior Consultation. Vendor shall, and shall ensure that each relevant Vendor Affiliate does, provide reasonable assistance to each Customer Group Member with any data protection impact assessments (or equivalent risk assessments), and prior consultations with Supervising Authorities or other governmental authorities of competent jurisdiction under applicable Data Protection Laws, which are required of any Customer Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case, solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10. Deletion or return of Customer Personal Data.
10.1 Subject to sections 10.2 and 10.3 of this DPA, Vendor shall, and shall ensure that each relevant Vendor Affiliate does, promptly and in any event within thirty (30) days of the date of cessation of any the Service, Support, Maintenance, or Professional Services involving the Processing of Customer Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of such Customer Personal Data.
10.2 Subject to section 10.3 of this DPA and notwithstanding Section 8.3 of the Master Terms, at any time prior to the tenth (10th) Business Day after the Cessation Date, Customer may, by written notice to Vendor, require Vendor and each Vendor Affiliate to (a) return a complete copy of all Customer Personal Data to Customer by secure file transfer in such format as is reasonably requested by Customer, and (b) delete and procure the deletion of all other copies of Customer Personal Data Processed by any Contracted Processor. Vendor shall, and shall ensure that each relevant Vendor Affiliate does, comply with any such written request within thirty (30) days of the Cessation Date.
10.3 After the date that is thirty (30) days after the Cessation Date, each Contracted Processor may retain Customer Personal Data only to the extent and for the period required by applicable Laws; provided that Vendor shall, and shall ensure that each relevant Vendor Affiliate does, ensure (a) the confidentiality of all such Customer Personal Data as required by the Agreement and this DPA, and (b) that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable Laws requiring its storage and for no other purpose. For clarity, Vendor will be permitted to retain indefinitely any data derived from Customer Personal Data that has been aggregated in accordance with Section 2 of the Master Terms; provided that such aggregated data no longer meets the definition of Personal Data under applicable Data Protection Laws.
10.4 Upon request, Vendor shall certify to Customer that it and each Vendor Affiliate has fully complied with this Section 10.
11. Audit rights
11.1 Subject to the remainder of this Section 11, Vendor shall, and shall ensure that each relevant Vendor Affiliate does (a) make available to each Customer Group Member, upon such Customer Group Member’s written request, all available information reasonably necessary to demonstrate compliance with this DPA, and (b) permit any Customer Group Member or an auditor mandated by any Customer Group Member to audit and inspect the security controls relevant to the Processing of the Customer Personal Data by the Contracted Processors. All information provided, disclosed, or made available pursuant to this Section 11 shall be deemed Vendor’s Confidential Information.
11.2 Information and audit rights of the Customer Group Members arise under section 11.1 only to the extent required to meet the relevant requirements of applicable Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR) where the Agreement does not otherwise give the required information and audit rights.
11.3 A Customer Group Member may mandate an auditor for the purposes of section 11.1 only if the auditor is identified in the list set out in Annex 2 to this DPA, as that list may amended from time to time by mutual written agreement between the parties. Vendor shall not unreasonably withhold, condition, or delay its agreement to accept a new auditor or to have such auditor added to the list in Annex 2.
11.4 The relevant Customer Group Member undertaking an audit shall give Vendor or the relevant Vendor Affiliate reasonable advanced written notice (but not less than ten (10) Business Days) of any audit or inspection to be conducted under Section 11.1 of this DPA. The relevant Customer Group Member shall not (and shall ensure that each of its mandated auditors do not) cause any damage or injury to the Contracted Processors’ premises, equipment, or Personnel and shall further ensure that such audit or inspection (whether conducted by the Customer Group Member or its mandated auditors) does not unreasonably interfere with the Contracted Processors’ business. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
(a) to any individual unless he or she produces reasonable evidence of identity and authority and agrees to be bound by such Contracted Processors’ reasonable confidentiality and security requirements;
(b) outside normal business hours at those premises, unless the audit or inspection is required to be conducted on an emergency basis (i.e. as a result of an imminent threat to Customer Personal Data or a known material non-compliance with applicable Data Protection Laws) and the relevant Customer Group Member undertaking such audit has given as much advanced notice (including via telephone and email) as is practicable to Vendor, the relevant Vendor Affiliates, and the relevant Contracted Processor, if any, of the need for such emergency audit or inspection;
(c) for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which:
(i) are conducted for the sole purpose of confirming whether a compliance breach revealed by a prior audit has been cured; or
(ii) A Customer Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any other governmental authority of competent jurisdiction under applicable Data Protection Laws; provided that the relevant Customer Group Member undertaking such audit has identified the relevant requirement or request in its notice to Vendor or the relevant Vendor Affiliate of the audit or inspection.
11.5 Vendor will provide access to the relevant compliance documentation (located in the “Help” section of Customer’s Dynamo instance). If, in addition to such access, Vendor’s or its Affiliates’ Personnel are required to further assist Customer Group Members in any audit(s) or inspection(s), such assistance will be provided free of charge up to 2 hours total in any calendar year. Any additional hours of required assistance will be charged at Vendor’s at Vendor’s then-current standard rates for Professional Services.
12. General Terms
12.1 The governing Law established pursuant to Section 22.1 of the Master Terms is without prejudice to the clauses on Mediation and Jurisdiction and Governing Law in any Standard Contractual Clauses (if executed).
12.2 Nothing in this DPA reduces Vendor’s or any Vendor Affiliate’s obligations under the Agreement in relation to the protection of Personal Data or permits Vendor or any Vendor Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this DPA and Standard Contractual Clauses (if executed), the Standard Contractual Clauses shall prevail.
12.3 Subject to section 12.2 of this DPA, with regard only to the Processing of Customer Personal Data, in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the Agreement and including (except where explicitly agreed otherwise in a writing signed by the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.
12.4 Customer may propose amendments to this DPA, which Customer reasonably considers necessary to meet the requirements of applicable Data Protection Upon such proposal, the parties shall promptly discuss the proposed amendments and negotiate in good faith with a view to agreeing and implementing those or alternative amendments designed to address the requirements identified in Customer’s notice as soon as is reasonably practicable. Customer shall not unreasonably withhold, condition, or delay agreement to any consequential variations to this DPA proposed by Vendor to protect the Contracted Processors against additional risks associated with the amendments requested by Customer. Neither Customer nor Vendor shall require the consent or approval of any Customer Affiliate or Vendor Affiliate to amend this DPA pursuant to this Section 12.4 or otherwise.
Annex 1 to the Dynamo Data Processing Agreement: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA
This Annex 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Customer Personal Data
The subject matter and duration of the Processing of the Customer Personal Data are set out in the Agreement and this DPA.
The nature and purpose of the Processing of Customer Personal Data
The nature and purpose are set forth in the Agreement.
The types of Customer Personal Data to be Processed
(a) Personal identification data (name, title, address (professional/private), previous addresses, telephone number (professional/private), characteristics)
(b) Professional activities of the Data Subject (type of activities, nature of goods or services used or supplied by the Data Subject, business relations)
(c) Professional qualifications (which may include licenses, certificates and professional trainings)
(d) Professional experience (which may also include professional interests, research interests, academic interests, teaching experience)
(e) Current occupation (employer, work place, specialization or type of company, previous experiences with current employer)
(f) ______________________________________________________________________
The categories of Data Subject to whom the Customer Personal Data relates
Business contacts; actual and potential transaction counterparties.
The obligations and rights of Customer and Customer Affiliates
The obligations and rights of Customer and Customer Affiliates are set out in the Agreement and this DPA.
Annex 2 to the Dynamo Data Processing Agreement: LIST OF MANDATED AUDITORS
None as of the as of the date of this DPA.
Exhibit 4: Confidentiality Agreement
This Confidentiality Agreement supplements the Master Terms and is a part of the Agreement between Customer and Vendor, and it describes each party’s rights and obligations relating to the receipt, use, and disclosure of Confidential Information and Personal Data in connection with the Agreement.
1. Definition. As used in the Agreement, “Confidential Information” means all confidential and proprietary information or trade secrets of a party (“Disclosing Party”) disclosed or made available to the other party (“Receiving Party”) that is clearly identified as such when disclosed or made available, as well as any written or oral information that should reasonably be understood to be confidential. Without limiting the generality of the foregoing, (a) Confidential Information of Customer will include Customer Data, (b) Confidential Information of Vendor will include Vendor’s Intellectual Property Rights, pricing information, the Service, Content, Vendor Technology and any databases (including any data models, structures, non-Customer specific data and aggregated statistical data contained therein), configuration methodology, Microsoft Excel-based report and transaction definitions and formatting, training materials, templates, forms, and other elements of the Service and Documentation, and (c) Confidential Information of each party will include the terms and conditions of the Agreement and all Order Forms. Except for Personal Data, Confidential Information shall not include information that, without breach of any obligation owed to the Disclosing Party, (x) is generally known to the public, (y) was known to the Receiving Party prior to its disclosure by the Disclosing Party, or (z) was independently developed by the Receiving Party without use of Confidential Information. Aggregate and anonymous data derived from Customer Data is not Confidential Information of Customer.
2. Confidentiality Obligations. The Receiving Party shall treat as confidential all of the Disclosing Party’s Confidential Information and shall not, and shall not permit its Personnel to, use or disclose such Confidential Information, except as expressly permitted under the Agreement. Without limiting the foregoing, (a) Receiving Party shall use at least the same care and discretion (but in no event less than reasonable care and discretion) to protect and prevent disclosure as it employs with similar information of its own, and (b) except as expressly provided under the Agreement, the Receiving Party may not use Confidential Information (i) for its own benefit or that of any third party, or (ii) to Disclosing Party’s detriment. Notwithstanding the foregoing, Customer may communicate (x) Vendor’s name, relevant sections of the Agreement, and a general description of the Service and Customer’s use thereof to Customer’s regulators, and (y) Vendor’s name and a general description of the Service (i.e. without detailed information and without images/videos displaying the Service or Customer’s use thereof) to Customer’s clients, prospective clients and other vendors, if reasonably necessary in connection with Customer’s access to and use of the Service in accordance with this Agreement.
3. Permitted Disclosures. Notwithstanding Section 2 of this Confidentiality Agreement, each party may disclose Confidential Information (a) to its Affiliates and its and their officers, directors, employees, independent contractors, and representatives, including, without limitation, attorneys and advisors, if such disclosure is in furtherance of performance under this Agreement and if such third parties are subject to restrictions similar to those contained herein, or (b) to the extent disclosure is required by applicable Law or valid court order, provided the compelled party first gives notice to the other party and, if requested, provides reasonable assistance in obtaining a protective order.
4. Remedies. Receiving Party acknowledges that the Disclosing Party may suffer irreparable injury, for which remedies at law would be inadequate, if Receiving Party breaches (or attempts or threatens to breach) its confidentiality obligations under this Confidentiality Agreement. Therefore, Receiving Party agrees that the Disclosing Party shall have the right to seek, in addition to any other remedies available at law or in equity, injunctive or other equitable relief in a court of competent jurisdiction to enjoin such acts or threats.
5. Return and Destruction. Upon termination or expiration of the Agreement, or upon the Disclosing Party’s earlier written request, the Receiving Party shall return to the Disclosing Party all originals of the Confidential Information then in its possession and, at the Receiving Party’s option, return or destroy (or, as applicable, delete) any copies or partial copies thereof and material containing the Confidential Information (except for Customer Data, the return of which is governed by Section 8.3 of the Master Terms) and certify to the Disclosing Party in writing that it has done so; provided, that the Receiving Party will not be required to return or destroy Confidential Information which has been provided to any governmental authority. Additionally, the Receiving Party may retain an archival copy of Confidential Information for legal and compliance purposes and to the extent such Confidential Information is on any computer network archival backup system. Notwithstanding anything to the contrary in this Agreement, Vendor may also retain Customer Data that has been aggregated in accordance with Section 8.2 of the Master Terms. The confidentiality obligations under this Confidentiality Agreement, however, will survive each such occurrence.
6. Personal Data; Data Security.
6.1 Vendor shall not (a) sell Personal Data received or collected in connection with the Agreement, (b) retain, use, or disclose Personal Data for any purpose other than for the specific business purpose of the provision of the Service, Content, Vendor Technology, Support, Maintenance, or Professional Services in connection with the Agreement, or (c) retain, use or disclose Personal Data outside of the direct business relationship between Vendor and Customer. Vendor shall comply with the restrictions and obligations under Privacy Laws, including the restrictions and obligations in the previous sentence. In addition, Vendor shall comply with any amendments of Privacy Laws or future Laws promulgated under the Privacy Laws as necessary for Vendor to qualify as a service provider under such Privacy Laws.
6.2 Vendor will use commercially reasonable efforts (but not less rigorous than accepted industry standards) and enforce administrative, technical, and physical safeguards to: (a) reasonably protect and maintain the security and confidentiality of any Customer Data or Personal Data in its possession, (b) safeguard such Customer Data or Personal Data from and against loss or theft or unauthorized access, use or disclosure, and (c) comply in all material respects with Privacy Laws. Customer shall not, and shall ensure that its Affiliates and Users do not, provide Personal Data to Vendor or its Affiliates for processing except as necessary for Customer, its Affiliates, and its and their respective Users to use the Service as contemplated under this Agreement.
6.3 In the event of a breach in the security of any Customer Data or Personal Data in its possession that results in unauthorized access, disclosure, acquisition, or use of such Customer Data or Personal Data, Vendor will take such steps as may be required by Privacy Laws as reasonably necessary to prevent or halt such activity and the reoccurrence thereof, and will promptly notify Customer. Vendor may suspend access to the Service immediately, pending an expedited investigation, if any security breach is detected or reasonably believed by Vendor to be imminent. Vendor will (a) notify Customer of the proposed suspension in writing, including e-mail, as soon as reasonably possible, and (b) tailor any suspension as narrowly as possible to address the specific security breach as reasonably determined by Vendor.
6.4 Without limiting any other obligations hereunder, Vendor will maintain an information security program that includes reasonable and appropriate physical, technical and administrative measures to safeguard Personal Data, including the measures on Annex 1 to this Confidentiality Agreement.
7. The restrictions and obligations contained in this Confidentiality Agreement will continue for two (2) years after expiration or termination of the Agreement; provided that, with respect to Confidential Information that is a trade secret, such restrictions and obligations will continue until such information no longer constitutes a trade secret under applicable Law; provided, further that, with respect to Confidential Information that is Personal Data, such restrictions and obligations will continue for so long as such Personal Data remains in Vendor’s possession.
Annex 1 to the Confidentiality Agreement: DATA SECURITY MEASURES
This Annex 1 includes certain specific data security measures Vendor uses to safeguard Personal Data.
1. Written information security policies and procedures.
2. Access controls to limit access to Personal Data and systems containing Personal Data only to those who need such access to provide the Service.
3. User identification and password standards, including length and configuration attributes.
4. Encryption options.
5. Where applicable to the Service, maintaining scheduled data backup and recovery systems of Personal Data.
6. Customer may configure secure logging of all access and changes to Personal Data when in the Service.
7. Vulnerability scans and patch management process to address identified vulnerabilities.
8. Maintaining and updating systems, hardware and software for which Vendor is responsible under this Agreement in accordance with the recommendations of the applicable manufacturer or provider, as necessary and appropriate.
9. Business continuity and disaster recovery planning.
Exhibit 5: Acceptable Use Policy
This Acceptable Use Policy (a) supplements the Master Terms and is a part of the Agreement between Customer and Vendor to the extent it applies to Customer, and (b) supplements and is a part of the End User Terms of Use between User and Vendor to the extent it applies to User, and, in each case, it describes the acceptable use of the Service and the restrictions applicable to such use.
1. Customer-Specific Terms.
1.1 Customer shall not, and shall not permit any User, Investor or any other Person to, access or use the Service, Content, or Vendor Technology except as expressly permitted by the Agreement.
1.2 Customer acknowledges and agrees that access to the Service, Content, and Vendor Technology will be restricted to Users logging in with the proper Access Credentials.
1.3 Customer will not impersonate another user or provide false identity information to gain access to or use the Service, Content or Customer Data.
2. User-Specific Terms
2.1 User shall not, and shall not permit any other Person to, access or use the Service, Content, or Vendor Technology except as expressly permitted by the End User Terms of Use.
2.2 User shall not attempt to access the Service, Content, or Vendor Technology by any means other than logging in with proper Access Credentials.
2.3 User will not impersonate another user or provide false identity information to gain access to or use the Service, Content or Customer Data.
3. Restrictions of Use. For purposes of clarity and without limiting the generality of the foregoing, neither Customer nor User shall, except as expressly permitted by the Agreement or the End User Terms of Use, as applicable:
3.1 license, sublicense, offer, sell, lend, pledge, rent, lease, resell, assign, distribute, publish, transfer or otherwise make available to any Person or commercially exploit the Service, the Content, or the Vendor Technology in any way, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
3.2 copy, reproduce, translate, modify or make derivative works or improvements of or based upon the Service, the Content, or the Vendor Technology;
3.3 create Internet “links” to the Service or “frame,” “mirror,” or utilize framing techniques to enclose the Service or any Content on any other server or wireless or Internet-based device;
3.4 reverse engineer or disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, Content or Vendor Technology, in whole or in part;
3.5 access or use the Service, Content, or Vendor Technology for purposes of (a) building, developing, or providing a competitive product or service, (b) building, developing, or providing a product using similar ideas, features, functions or graphics of the Service, (c) copying any proprietary features, functions or graphics of the Service, (d) conducting competitive analysis, (e) using a competing software service or product, or (f) any other purpose that is to the Vendor’s detriment or commercial disadvantage;
3.6 access or use the Service, Content, or Vendor Technology in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Vendor customer), or that violates any applicable Law;
3.7 access or use the Service, Content, or Vendor Technology to send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws;
3.8 access or use the Service, Content, or Vendor Technology to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
3.9 bypass or breach any security device or protection used by the Service, Content, or Vendor Technology or access or use the Service, Content, or Vendor Technology other than by a User through the use of his or her own then valid Access Credentials;
3.10 input, upload, transmit, or otherwise provide to or through the Service, Content, or Vendor Technology, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
3.11 damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Content, Vendor Technology, Vendor’s Mobile Application or website, Vendor’s computing systems or Vendor’s provision of services to any third party, in whole or in part;
3.12 remove, delete, alter, or obscure any Trademarks, Documentation, end-user license agreement, warranties, or disclaimers, or any copyright, Trademark, patent, or other intellectual property or proprietary rights notices from any Service, Content, or Vendor Technology, including any copy thereof;
3.13 scrape or data-mine the Service, Content, or Vendor Technology (including through the use of any robot, spider or other automated device); or
3.14 otherwise access or use the Service, Content, or Vendor Technology beyond the scope of the authorization granted under the Agreement or the End User Terms of Use, as applicable.
4. Remedies. In addition to any remedies available to Vendor under the Agreement or the End User Terms of Use, as applicable, in the event Customer or User violates this Acceptable Use Policy, Vendor may (a) suspend or terminate Customer’s Subscription or the applicable User’s User Account, (b) report any illegal activity to appropriate legal authorities, (c) issue verbal or written warnings, or (d) seek injunctive relief and/or monetary damages.