Master Services Agreement
This is a Master Services Agreement (“Agreement”) between Dataguise, Inc., a Delaware corporation (“Dataguise”) and the customer identified in the Order Schedule (“Customer”) governing Dataguise’s licensing and providing software to Customer and providing support and related services. By signing an Order Schedule, the parties agree as follows:
The software provided and licensed by Dataguise under an Order Schedule contains proprietary and non-proprietary components. The software licensed or provided in the Order Schedule is called Licensed Product. In this Agreement, the “Licensed Software” means the proprietary components of the Licensed Product, including error corrections, modifications and updates to the Licensed Software. Whether proprietary or non-proprietary, during the subscription period, Dataguise supports all components of the Licensed Product delivered to Customer as “Supported Software” under the Dataguise Support Policies at www.Dataguise.com/support-policy. Dataguise provides any non-proprietary components of the software only subject to the applicable license or other terms specified in the Order Schedule or in the “read me” file available upon access to the software.
2. Subscription License
Subject to this Agreement, including any payment obligations under an Order Schedule, Dataguise grants Customer a nonexclusive, nontransferable, nonsublicensable license to use the Licensed Software, only during the Subscription Period and only for the scope of use stated in an Order Schedule. As used in these Terms, “Subscription Period” means the time period specified in an Order Schedule or applicable ordering document (and for any renewal, the time period stated in that renewal). The number of Terabytes licensed for use in an Order Schedule means: the total memory/storage in the databases, Cloud Platform or Hadoop cluster (includes sources, targets and copies).
Except as expressly permitted under this Agreement, Customer may not (1) copy, modify or create any derivative works of the Licensed Software (or any portion thereof); (2) assign, sublicense, transfer, lease, rent or otherwise distribute the Licensed Software to any third party; or (3) make the functionality of the Licensed Software available to multiple users through any means, including but not limited to by uploading the Licensed Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. Customer acknowledges and agrees that portions of the Licensed Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Dataguise and its licensors. Accordingly, Customer agrees not to disassemble, decompile or reverse engineer the Licensed Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
The Licensed Software is licensed, not sold. Dataguise retains ownership of Licensed Software, including all intellectual property rights in the Licensed Software. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Licensed Software as delivered to Customer. If the Licensed Software is being used by or on behalf of the U.S. Government, notwithstanding any clause to the contrary in this Agreement, to the extent any clauses in the Agreement conflict with federal law or regulation, such clauses shall not be given effect. The parties agree to review and negotiate the license clauses in good faith to the extent necessary to ensure compliance with applicable law and regulation and to reflect the license terms to the U.S. government.
Subscription licenses granted under this Agreement will automatically terminate, with or without notice from Dataguise, upon expiration of the applicable Subscription Period. If Dataguise terminates this Agreement due to Customer’s breach, any licenses granted under this Agreement will terminate upon the expiration of the required notice period. Upon termination, Customer must promptly, at Dataguise’ option, either destroy or return to Dataguise all copies of the Licensed Software in Customer’s control. Either party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure the breach within 30 days of written notice describing the breach.
6.1. Definition. Each party acknowledges that during the term of this Agreement it will receive information from the other party that the other party regards as confidential and proprietary. As used in this Agreement, “Confidential Information” means (1) the Licensed Software; (2) any information designated as confidential orally or in writing by either party; or (3) any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party. In addition, Confidential Information includes any information related to any products or business of each party, including, but not limited to, product plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, research, development, and know-how.
6.2. Confidentiality Obligation. Each party shall use Confidential Information only for the purposes of this Agreement and shall not disclose it to any third party. As to the other party’s Confidential Information, each party shall take reasonable steps (1) to prevent the unauthorized use, dissemination or publication of the Confidential Information; (2) not to divulge Confidential Information to any third party; (3) not to make any use of Confidential Information except for the purposes contemplated under this Agreement; (4) to bind its employees and independent contractors (by agreement or otherwise) to obligations prohibiting them from revealing Confidential Information (except to the extent required to carry out its obligations under this Agreement); and (5) to require that Confidential Information be kept in a secure location or manner. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement: (A) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest the order or requirement; (B) on a confidential basis to its legal or professional financial advisors; (C) as required under applicable securities regulations; or (D) on a confidential basis to its present or future providers of venture capital and/or potential private investors in or acquirers.
6.3. Exclusions. This Agreement imposes no obligation with respect to Confidential Information which: (1) is a part of or enters into the public domain; (2) was already in the recipient’s possession prior to the date of disclosure other than by breach of this Agreement; (3) is rightfully received from a third party without any duty of confidentiality; or (4) is independently developed without reference to the Confidential Information of the disclosing party. Either party may disclose the terms of this Agreement to potential parties to financing, acquisition, divestiture or similar transactions to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospective or closed transaction, each party to that transaction using commercially reasonable efforts to limit the extent of the disclosure.
6.4. Feedback. Dataguise welcomes Customer’s suggestions and feedback. If Customer provides any suggestions, feedback, or improvements to the Licensed Software, Dataguise will have the right to use and have others use such suggestions, feedback, and improvements for any purpose.
7. Support and Warranty
7.1. Limited Warranty. Dataguise warrants that it will perform any professional services with reasonable care and skill and consistent with standards generally observed for services of a substantially similar nature. Dataguise warrants that, during Customer’s active Subscription Period, the Licensed Software will perform in material conformance with its published documentation. If the Licensed Software fails to conform to the foregoing warranty, Customer shall make a warranty claim to Dataguise specifying the defect. Dataguise will repair or replace the defective Licensed Software. If Dataguise, after a commercially reasonable period of time, fails to repair or replace the defective Licensed Software, as Customer’s sole and exclusive remedy for breach of warranty, Customer may terminate this Agreement and upon Customer’s return of the Licensed Software to Dataguise, refund the unused portion of any subscription fees paid for the non-conforming Licensed Software.
7.2. Harmful Code. Dataguise will use commercially reasonable efforts and commercially available technology to scan any software made available by Dataguise (including the Licensed Software and any non-proprietary software provided with the Licensed Software) for and to remove any computer “viruses,” “worms” and other illicit code, and will promptly notify Customer of any such items discovered. The Licensed Software shall not contain any “back door,” “time bomb,” or comparable device (i.e., code that is intentionally included to give Supplier the ability intentionally to interrupt or disable software).
7.3. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DATAGUISE PROVIDES NO OTHER WARRANTIES REGARDING THE LICENSED SOFTWARE, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DATAGUISE OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT.
8. Professional Services
8.1. Professional Services Process. Professional Services will be provided under an Order Schedule that is signed by both parties. Changes to an Order Schedule must be in writing signed by both parties.
8.2 Customer Responsibilities. In connection with any professional services provided by Dataguise, Customer shall (1) provide Dataguise with reasonable access to Customer’s sites and facilities during Customer’s normal business hours and as otherwise reasonably required to perform the services; and (2) perform Customer’s agreed duties and tasks, and such other duties and tasks as may be reasonably required to permit Dataguise to perform the services. Customer will also make available to Dataguise any data, information and any other materials reasonably required by Dataguise to perform the services, including, but not limited to, any data, information or materials specifically identified in the applicable ordering document (collectively, “Customer Materials”). Customer will be responsible for ensuring that all such Customer Materials are accurate and complete.
8.3. Customer Materials. As between Customer and Dataguise, Customer will exclusively own all rights, title and interest in and to the Customer Materials, including all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights therein. Dataguise acknowledges and agrees that Customer Materials constitutes Customer’s Confidential Information.
8.4. Dataguise Materials. Subject to Customer’s rights in the Customer Materials, Dataguise will exclusively own all rights, title and interest in and to any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by Dataguise or its personnel in connection with performing services (collectively “Dataguise Materials”), including all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights therein. Customer will have no rights in any Dataguise Materials except as expressly set forth in this Agreement.
8.5. Freedom of Action. Nothing in this Agreement will be deemed to restrict or limit Dataguise’ right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party; provided that Dataguise complies with its obligations with respect to Customer’s Confidential Information.
8.6 Co-development terms and conditions. If the parties wish to co-develop software, the terms and conditions of a co-development project will be contained in an Order Schedule.
9.1. Indemnity by Dataguise. Dataguise shall defend or settle at its sole expense any claim brought against Customer, Customer’s directors, officers, or employees by a third party alleging that the Licensed Software as delivered by Dataguise infringes any U.S. patent, copyright, or trade secret of a third party, and Dataguise shall pay all damages finally awarded or costs of settlement of the claim provided that Customer: (1) provide Dataguise prompt written notice of any claim (provided that failure or delay in giving notice shall not reduce or otherwise relieve Dataguise of any liability it may have under this section, except to the extent that Dataguise is prejudiced thereby); (2) give Dataguise sole control of the defense and settlement thereof (except that (A) Customer shall at all times have the right at Customer’s sole option to participate in the defense and settlement at Customer’s own expense; and (B) without Customer’s prior written consent, Dataguise shall not enter into any settlement that would require Customer to make any payment or to accept any non-monetary obligations defined as contractual prohibitions against use and other mandatory conducts, which approval shall not be unreasonably withheld); and (3) provide all reasonable assistance in connection with a claim.
9.2. Injunctions. If Customer’s rights to use the Licensed Software are, or in Dataguise’ opinion are likely to be, enjoined due to an indemnified claim, then Dataguise may, at its sole option and expense: (1) procure for Customer the right to continue using the Licensed Software according to the terms of this Agreement, (2) modify the Licensed Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (3) if neither of the foregoing options is commercially reasonable, terminate the license granted by this Agreement and provide a refund of the unused subscription fees paid for the applicable Licensed Software.
9.3. Exclusions. The foregoing indemnity does not extend to claims arising from or relating to (1) modifications to the Licensed Software not provided by or approved in writing by Dataguise; (2) use of the Licensed Software in combination with any third party software or hardware to the extent the alleged infringement would not have occurred without the combination; or (3) the allegedly infringing activity continues after Dataguise has informed Customer in writing of and made available to Customer at no additional charge a newer version of the Licensed Software that would have avoided the alleged infringement.
9.4. This section states Customer’s sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind.
10. Limitation of Liability
To the fullest extent permitted by applicable law, in no event shall Dataguise be liable for the cost of procurement of substitute goods or technology, loss of profits, or for any special, consequential, incidental, punitive or indirect damages on any theory of liability, whether in contract, tort, strict liability or otherwise, even if advised of the possibility of such damages. To the fullest extent permitted by applicable law, in no event shall the total liability of Dataguise to Customer under this Agreement exceed the greater of the total amounts paid by Customer to Dataguise during the 12 months prior to the date the claim arises. The liability limitations in this paragraph (and otherwise in this Agreement) do not limit indemnity obligations or exclude damages for bodily injury or death, damage to real or tangible personal property, or other damages that under applicable law cannot be limited or excluded.
11.1. Assignment. The Agreement may not be assigned by either party by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of the Agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning party’s assets.
11.2. Entire Agreement. Except as expressly agreed to otherwise in a writing by the parties that references this Agreement, this Agreement constitutes the complete Agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. The terms and conditions in an Order Schedule prevail over any inconsistent terms in this Agreement. No change to this Agreement will be valid unless it is written and signed by each party.
11.3. Export Controls. By using the Licensed Software, Customer agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer’s use of the Licensed Software. In particular, but without limitation, the Licensed Software may not, in violation of any Laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list.
11.4. Force Majeure. Neither party will be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, storm, earth quake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting the failure or delay and beyond the party’s reasonable control.
11.5. Governing Law. This Agreement is to be construed in accordance with and governed by the laws of the State of California The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. Any legal suit, action or proceeding arising out of or relating to this Agreement in a federal court in the Northern District of California or in state court in Santa Clara County, California. The prevailing party shall recover its reasonable attorney’s fees.
11.6. Independent Contractors. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.
11.7. Press Releases. Dataguise may use Customer’s name and logo in its marketing program, including use on Dataguise’ company website, marketing literature, and in press releases.
11.8. Severability and Waiver. In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.