This Master Services Agreement (“Agreement”) sets forth the terms and conditions upon which Performology (“Provider”), will provide to you (referred to herein as “You”, “Your” or “Customer”) any Service (as defined below) ordered by You through Provider’s website located at http://www.performology.com/.
By accepting this Agreement either by clicking “I Agree” below and/or by submitting an order to Provider for the purchase of any Service (as defined below), You agree to be bound by the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates (as defined below) to the terms and conditions of this Agreement, and in which case the terms “You” and “Your” herein shall refer to such entity and its Affiliates.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Agreement together any order for any Service submitted by you to Provider and any supplemental terms incorporated by reference by Provider.
“Content” means information whether developed by Provider or obtained by Provider from Provider’s licensors or other sources and provided to Customer pursuant to any Service, as more fully described in the Documentation for such Service.
“Documentation” means Provider’s online user guides, documentation, and help and training materials as updated from time to time, accessible via Provider’s help or support desks or webpages, login to the applicable Service, or any other online medium used by Provider to make such guides, documentation and materials available to Customer and its Users.
“Effective Date” means the date on which Customer is first given access to a Service ordered hereunder.
“Malicious Code” means code, files, scripts, agents, or programs intended to harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order” means any order for a Service submitted by Customer to Provider through Provider’s website or other method adopted by Provider for the acceptance of orders for Services from Customer.
“Provider” means Performology and its successors and assigns.
“Service” means the current release and version of each Provider service offering ordered by Customer through Provider’s website, together with all related documentation, updates, revisions, error corrections, and enhancements thereof which are provided by Provider to Customer.
“Term” means, with respect to each Service, the term for such Service, commencing on the applicable Effective Date for such Service and continuing in effect for the duration of such term, in each case, as set forth on the applicable Order for such Service, unless such earlier terminated as provided in Section 5, and, with respect to this Agreement, the term as set forth in Section 5.1 hereof.
“Use” means the use by any person of the Services.
“User” means a person properly authorized by Customer to use the Service in accordance with the terms and conditions of this Agreement.
2.1. Services. If Customer has registered for a free trial of any Service, Provider will make the applicable Service available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer has registered to use the applicable Service, or (b) the date of the subscription for such Service purchased by Customer on non-trial basis. Additional trial terms and conditions may appear in the applicable Order or registration web page for trial Service(s). Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
3.1. Services. Subject to the terms of this Agreement, and provided Customer is not in default hereunder, Provider hereby grants to Customer the non-exclusive, non-transferable right to permit Users to Use each Service ordered by Customer hereunder during the term applicable to such Service, solely in the manner permitted by this Agreement and Order or other schedules or addendums hereto. Provider may require that each User enter into an end user license agreement with Provider as a condition of such User’s use of any Service.
3.2. Restrictions. Customer shall not allow any User to access, view, or use any Service or Content in any manner which is not expressly authorized by this Agreement or which violates any applicable law. Customer shall not (i) copy or reproduce the Services in whole or in part; (ii) modify, translate or create derivative works of the Services or the Content; (iii) reverse engineer, decompile, disassemble or otherwise reduce the Services to source code form; (iv) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes or otherwise transfer the Services, the Content or Customer’s right to Use the Services or the Content; (v) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than Customer or Users; (vi) use a Service to store or transmit any Malicious Code; (vii) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein; (viii) attempt to gain unauthorized access to any Service or Content or its related systems or networks; (ix) copy Content except as permitted herein or as permitted in the Documentation; (x) access any Service or Content in order to build a competitive product or service; or (xi) remove or modify any copyright, trademark or other proprietary notice of Provider or its suppliers affixed to the media containing the Services or contained within the Services.
3.3. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order(s), (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with this Agreement, Documentation, Order(s) and applicable laws and government regulations.
4.1. Fees. Customer will pay all fees specified in the Order for the particular Service. Except as otherwise specified herein or in any Order, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) for certain Services, quantities purchased cannot be decreased during the relevant term.
4.2. Invoicing and Payment. Customer shall provide valid and updated credit card information and authorizes Provider to charge such credit card for all fees for each Service as set forth on the applicable Order to such Service, for the initial term and any renewal term(s) as set forth in Section 5.1 (Term). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If an Order specifies the payment will be made by a method other than credit card, Provider will invoice Customer in advance and otherwise in accordance with the relevant Order and all invoices shall be due and payable in full within thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Provider and notifying Provider of any changes to such information. All fees are payable in U.S. Dollars.
4.3. Overdue Charges. Without limiting any of its rights or remedies, Provider may charge a late fee on all past due amounts at the rate of 1.5% per month or, if lower, the maximum rate permitted by applicable law. Customer shall pay all of Provider’s costs and expenses (including reasonable attorneys’ and auditors’ fees) if legal action is required to collect outstanding balances or to enforce any of Provider’s other rights hereunder or at law.
4.4. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Provider’s Services is 30 or more days overdue (or 10 or more days overdue in the case of payment method by credit card), Provider may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Provider’s Services to Customer until such amounts are paid in full.
4.5. Taxes. Fees are exclusive of any applicable taxes, including without limitation, sales, use, value-added, and withholding taxes, and Customer shall pay all such taxes when due (other than taxes on Provider’s net income).
4.6. Separate Contracts; No Promise of Future Functionality. Each Order constitutes a separate contract and Provider’s failure to perform under any Order shall not affect Customer’s obligations under any other Order. Customer agrees that its purchases are not contingent on Provider’s delivery of any future functionality or features, or dependent upon any oral or written public comments made by Provider regarding future functionality or features.
5.1. Term. Unless earlier terminated as provided herein, this Agreement shall commence on the Effective Date of the first Order submitted pursuant to the terms of this Agreement and shall continue until the term specified on the last Order submitted pursuant to this Agreement. Unless otherwise provided in the Order, this Agreement will automatically renew for an additional 1-year term (each, a “Renewal Term”) unless Customer provides Provider with written notice of termination at least 90 days before the end of the Initial Term or any Renewal Term. Each Service ordered hereunder shall continue for the applicable term for such Service as set forth on the applicable Order for such Service unless earlier terminated as provided herein.
5.2. Termination. Either party may terminate this Agreement and the Services ordered hereunder if the other party: (a) commits a material breach of this Agreement which is not cured within thirty (30) days after written notice thereof is given by the non-defaulting party; (b) in the case of non-payment by the Customer, Provider may, without limiting any of Provider’s other remedies under the Agreement, terminate this Agreement and/or any Service within ten (10) days following written notice from Provider, or (c) if the other party is liquidated or dissolved, or suffers a receiver or trustee to be appointed for it, or makes a general assignment for the benefit of its creditors or institutes or has instituted against it any proceedings under any law relating to bankruptcy or relief of debtors, and such filing is not dismissed within sixty (60) days.
5.3. Effect of Termination. Immediately upon any termination of this Agreement, the Services ordered hereunder shall terminate. In such event, Customer shall, and shall cause all persons (including Users) to, cease Use of the Services. This Section 5.3 and the parties’ rights and obligations under Section 3.2 (Restrictions), Section 6 (Representations, Warranties, Exclusive Remedies and Disclaimers), Section 7 (Mutual Indemnification), Section 8 (Limitation of Liability), Section 9.1 (Ownership of the Services), Section 9.2 (Ownership of Feedback), Section 10 (Confidentiality), and Section 11 (General), as well as any obligations to make payments of fees and other amounts accrued prior to termination, shall survive any termination of this Agreement.
6.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
6.2. Provider Warranties. Provider warrants that during an applicable subscription term (a) this Agreement and the Order Forms will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) Provider will not materially decrease the overall security of the Services, and (c) the Services will perform materially in accordance with the applicable Order Forms. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” section above.
6.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY CUSTOMER, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
7.1. Indemnification by Provider. Provider will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Order infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Provider in writing of, a Claim Against Customer, provided Customer (a) promptly gives Provider written notice of the Claim Against Customer, (b) gives Provider sole control of the defense and settlement of the Claim Against Customer (except that Provider may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Provider all reasonable assistance, at Provider’s expense. If Provider receives information about an infringement or misappropriation claim related to a Service or Order, Provider may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Provider’s warranties under “Provider Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Provider, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from a Non-Provider Application or Customer’s breach of this Agreement or applicable Order Forms.
7.2. Indemnification by Customer. Customer will defend Provider and its Affiliates against any claim, demand, suit or proceeding made or brought against Provider by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-Provider Application provided by Customer, or (c) the combination of a Non-Provider Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services in an unlawful manner or in violation of the Agreement or Order Form (each a “Claim Against Provider”), and will indemnify Provider from any damages, attorney fees and costs finally awarded against Provider as a result of, or for any amounts paid by Provider under a settlement approved by Customer in writing of, a Claim Against Provider, provided Provider (a) promptly gives Customer written notice of the Claim Against Provider, (b) gives Customer sole control of the defense and settlement of the Claim Against Provider (except that Customer may not settle any Claim Against Provider unless it unconditionally releases Provider of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Provider arises from Provider’s breach of this Agreement or applicable Order Forms.
7.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
8.1. Limitation of Liability. CUSTOMER’S EXCLUSIVE REMEDY AND PROVIDER’S SOLE LIABILITY WITH RESPECT TO ANY CLAIMS ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE GOVERNED BY THIS AGREEMENT, AND IN ALL CASES PROVIDER’S LIABILITY SHALL BE LIMITED TO THE FEES ACTUALLY RECEIVED BY PROVIDER UNDER THIS AGREEMENT DURING SHORTER PERIOD OF THE TERM OF APPLICABLE SERVICE GIVING RISE TO THE CLAIM OR THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM LOST PROFITS, REVENUES, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE, EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF PROVIDER HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. Customer acknowledges and agrees that the level of the fees under this Agreement has been set based on the application of the limitations described in this Section 8.
9.1. Ownership of the Services and Content. Customer acknowledges and agrees that this Agreement conveys a limited right to Use the Services and the Content and that Provider and its licensors shall retain all right, title and ownership in the Services, Content and any intellectual property therein. The Services, the Content and any and all materials relating thereto, including all associated intellectual property rights, shall remain at all times the sole, exclusive property of Provider or its licensors. All rights not expressly granted by this Agreement or any Order or other addenda hereto are reserved by Provider.
9.2. Ownership of Feedback. Customer hereby assigns to Provider all right, title and interest to any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to Use and operation of the Services.
9.3. Security. Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action which would be in violation of this Agreement. Such steps shall include, but shall not be limited to, imposing password restrictions on use of the Service, securing the Customer’s network on which such Service resides from outside intrusion, preventing the making of unauthorized copying of the Service, and administering and monitoring use of the Service. Customer shall promptly report to Provider any actual or suspected violation of Section 3.2 hereof and shall take such further steps as may reasonably be requested by Provider to prevent or remedy any such violation.
10.1. Confidential Information Defined. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer supplied data in connection with use of the Services; Provider’s Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Notwithstanding the foregoing, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
10.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, which in no event shall be less than reasonable care, (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 10.2.
10.3. Required Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of required disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
11.1. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Massachusetts without giving effect to its choice of law rules, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement shall be deemed to have been executed and delivered by both parties in the State of Massachusetts. The courts of the State of Massachusetts located in Suffolk County, or the United States District Court in Boston, Massachusetts, shall have non-exclusive jurisdiction over any proceeding to enforce the rights of any party under this Agreement, and each party waives all rights to object to the jurisdiction of such courts because of inconvenience of forum.
11.2. Assignment. Neither this Agreement nor the Services ordered hereunder are transferable by Customer without the prior written consent of Provider, and any attempted transfer without such consent shall be void and have no force or effect. This Agreement shall inure to the benefit of the parties and their permitted successors and assigns.
11.3. Amendments. This Agreement may be amended or modified only by a writing signed by both parties. Any waiver by a party of any breach of any provision of this Agreement by the other party must be in writing to be effective and shall not constitute a waiver of any subsequent breach of the same or any other provision.
11.4. Complete Agreement. The parties agree that this Agreement (including any Orders and all applicable Schedules) is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement. Except as otherwise provided herein, additional or conflicting terms contained in any standardized form or correspondence of or from Customer are expressly unenforceable under this Agreement unless such terms and conditions are contained in an amendment to this Agreement duly executed by both parties hereto.
11.5. Notices. Any notice by a party under this Agreement shall be in writing and either personally delivered, delivered by facsimile or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested, addressed to the other party at the address specified in any Order or such other address of which either party may from time to time notify the other in accordance with this Section. All notices shall be in English and shall be deemed effective on the date of personal delivery, upon confirmation of a facsimile transmission, one day after deposit with an overnight courier, or four business days after it is sent by registered or certified mail, return receipt requested, postage prepaid.
11.6. Compliance with Laws. Customer shall comply with all applicable United States laws and regulations which may govern the use of the Services, and all applicable foreign laws and regulations, including, without limitation, laws with respect to the privacy and transmission of information and data.
11.7. Anti-Corruption. Customer certifies it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Provider’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Provider in writing at the Provider’s address referenced in this Agreement.
11.8. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.9. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.10. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.11. Publicity. Each party may issue press releases announcing the relationship contemplated by this Agreement, subject to the prior approval of the other party in such other party’s sole discretion. Provider shall be entitled to refer publicly to Customer as one of its customers of the Services.
11.12. Force Majeure. Provider will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.