“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 the Dynamo Support Agreement, the DPA, the Technical Specifications and 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.
“Attachment” means additional terms and conditions specific to an Order Form that are incorporated by reference therein or attached thereto.
“Business Day” means Monday through Friday, excluding major holidays in the jurisdiction where the relevant Dynamo entity is located. In the U.S.A. such holidays are those observed by the New York Stock Exchange plus the day after Thanksgiving.
“Business Hours” means 9 AM to 6 PM during Business Days, unless otherwise agreed in writing: (a) US EST/EDT, if Customer is in North America or South America, (b) CEST/CEDT, if Customer is in EMEA, and (c) SGT if Customer is in Asia-Pacific.
“Content” means audio, video, image, data, and text owned by Dynamo, or created by Dynamo (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 Dynamo, 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.
“Customer Data” means (a) Customer Provided Data, and (b) the content of any reports, summaries, output, or other data, information or materials to the extent derived from, or incorporating, 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 Provided Data” means any data, information or material that (a) Customer or any of its Users 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 its User’s request, or (c) Dynamo 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 the Agreement, is on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders.
“DPA” means the Dynamo Data Processing Agreement, available at https://www.dynamosoftware.com/DPA/.
“Dynamo 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 Dynamo or its Affiliates or licensors made available to, or otherwise utilized by Dynamo or its Affiliates to perform Dynamo’s obligations for, Customer, Customer’s Affiliates, or any of their respective Users in connection with this Agreement, including any Modifications thereto.
“Dynamo Support Agreement” means the Dynamo Support Agreement, available at https://www.dynamosoftware.com/support-agreement/.
“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 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 requirements listed in the Order Form and the Service 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 Dynamo Technology in combination with any products, service, hardware, system, software, network, business process(es), or other materials or service not provided by Dynamo or specified for Customer’s use in the Technical Specifications 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 Dynamo Technology made without Dynamo’s specific written approval, or (f) failure to timely implement any Modifications made available to Customer by or on behalf of Dynamo.
“Force Majeure Event” means any circumstance or cause occurring after the Effective Date that is 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.
“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 disclosures thereof or 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 know how, technology, business methods, techniques, processes, algorithms, designs, 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.
“Law(s)” 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.
“Mobile Application” means a mobile website or application.
“Modification” means changes, Upgrades, Updates, modifications, or enhancements to, or derivative works of, a Service or Dynamo Technology made by or on behalf of Dynamo.
“Order Form” means an ordering document between Dynamo and Customer (or a Customer Affiliate) evidencing the Subscription for the applicable Service or order for the applicable Professional Services.
“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.
“Policies” means any and all Dynamo policies incorporated into this Agreement by reference or posted on the Service, including Dynamo’s Privacy Policy (located at https://www.dynamosoftware.com/privacy-policy/) and Acceptable Use Policy (located at https://www.dynamosoftware.com/acceptable-use-policy/).
“Professional Services” means any consulting, advisory, technical, development, programming, or other professional services provided by Dynamo (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.
“Service” means any or all of the following, including any Modifications thereto, as applicable: (a) Dynamo’s software applications, remotely accessed by Customer and its Users, (b) associated online or offline components (including APIs) described in any Order Form or otherwise provided to Customer or Customer’s Affiliates by Dynamo (or its Affiliates or sub-contractors) pursuant to an Order Form and (c) all other software and work product developed for or provided to Customer or its Affiliates by Dynamo (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(s)” means (a) the access fee for each applicable Service, and (b) the recurring professional services under the applicable 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 agreed termination assistance period for such Service, unless earlier terminated in accordance with the terms of this Agreement.
“Support” means the support services set forth in the 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, but excluding taxes levied on the net income of a party.
“Technical Specifications” means the technical information and use conditions set forth in the document available at https://www.dynamosoftware.com/technical-specifications/.
“Third Party Applications” means any software application (including any Web-based application) not developed or owned by or licensed to Dynamo by a third party 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.
“Trademarks” means business names, product names, trademarks, trade dress, service marks, brand names, logos, social media handles and other indicia of source, whether registered or unregistered, together with the goodwill associated therewith.
“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 or investors 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.