Master Services Agreement
Effective Date: 10/6/2022
This Master Services Agreement (“Agreement”) sets forth the terms and conditions that apply to the use of DataGrail services by a Customer who has signed a Services Order Form with DataGrail, Inc., a Delaware corporation (“we” or “DataGrail”). This Agreement is incorporated by this reference into the terms of each Services Order Form and is effective as of the date the Services Order Form is signed by all Parties. DataGrail and Customer shall individually be referred to as a “Party” and collectively as the “Parties.”
In consideration of the mutual representations, warranties, and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1) Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
a) Authorized Users. The term “Authorized Users” refers to the individuals authorized by Customer to access and use the Subscription Services by use of an assigned Customer Account ID and user-ID and password.
b) Customer. The term “Customer” means the entity identified as the Customer in the Services Order Form.
c) Customer Data. The term “Customer Data” refers to any data or information submitted, uploaded, imported, integrated, communicated by Customer to DataGrail, including for the avoidance of doubt Personal Data relating to any Data Subject.
d) Managed Services. The term “Managed Services” refers to any professional or managed services provided to Customer by DataGrail, as set forth in a Services Order Form.
e) Personal Data. The term “Personal Data” means information relating to an identified or identifiable natural person (“Data Subject”) and includes personally identifiable information and personal information as defined by applicable data protection laws, rules and regulations.
f) Service Data. The term “Service Data” means any statistical and/or other benchmark data generated by DataGrail in connection with Customer’s use of the Services. For the avoidance of doubt, Service Data shall not contain or include or otherwise be derived from Personal Data.
g) Services Order Form. The term “Services Order Form” means the applicable Services Order Form that is mutually agreed to in writing by the Parties setting forth the commercial terms of the Services that are expressly incorporated by reference within this Agreement.
h) Subscription Services. The term “Subscription Services” refers to the cloud-based subscription services identified in the applicable Services Order Form.
i) Services. The term “Services” refers collectively to the Subscription Services and the Managed Services.
j) Updates. The term Updates means any and all bug fixes, patches, and maintenance releases to the Subscription Services.
2) Services. Pursuant to this Agreement, DataGrail shall provide to Customer the Services specified within the Services Order Form. Data Grail may provide Updates to the Services at any time, provided such Updates do not materially degrade the Services.
3) Authorized Users. DataGrail shall provide to Customer a Customer Account ID to enable authorized access to the Subscription Services. All Authorized Users shall be subject to the terms and conditions of this Agreement. Each Authorized User must have unique login credentials. Customer and its Authorized Users shall safeguard account access credentials. Customer will notify DataGrail immediately if it learns of any unauthorized use of any access credentials or any other known or suspected breach of activity.
4) API License. Subject to the terms and conditions of this Agreement, DataGrail grants Customer a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 22(f)), royalty free, license for Customer’s use of DataGrail’s application programming interface (“API”) to develop software applications that will interface between Customer’s systems and the DataGrail platform.
5) Access Grant to Subscription Services. DataGrail hereby grants Customer a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 22(f)), royalty-free, license to access and utilize the Subscription Services pursuant to the terms of this Agreement.
a) Privacy. DataGrail acknowledges that it may receive or have access to Customer Data (including Personal Data) provided by Customer during the term of this Agreement. Each party shall comply with all applicable data protections laws and regulations and their respective obligations set forth within the Data Processing Agreement (the “DPA”). In relation to all such Personal Data, DataGrail shall process such Personal Data solely in accordance with applicable privacy laws and Customer’s written instructions for the purposes of providing the Services in accordance with the Agreement and for no other purposes. Customer agrees that Customer’s use or configuration of the Services to process such Personal Data shall be deemed a written instruction to DataGrail to process such Personal Data.
b) Security. DataGrail will maintain administrative, physical, and technical safeguards reasonably designed to protect the security, confidentiality and integrity of the Customer Data in accordance with industry standard security requirements, which shall include for the avoidance of doubt, encrypting Customer Data at rest and in transit and utilizing SSO and/or two factor authentication as possible according to industry best practice.
7) Customer Data License. Customer reserves all right, title and interest in the Customer Data. Customer hereby grants to DataGrail a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 22(f)), royalty-free, license to use Customer Data solely as necessary for the purposes of providing the Services pursuant to this Agreement.
8) Reservation of Rights. DataGrail has and will retain all right, title and interest, including, without limitation, all intellectual property rights, in and to the API, Subscription Services, Service Data, and all source code and object code related thereto, and all copies, modifications and derivative works thereof. Any and all rights not expressly granted herein by DataGrail are reserved by DataGrail.
9) Promotional License. Customer grants to DataGrail the right and license to use Customer’s name and logo to market and promote the Services. DataGrail is granted no other rights to Customer’s logo and acknowledges that it shall not gain any proprietary interest in Customer’s logo. DataGrail is under no obligation to make use of or to provide compensation for any of the rights or permissions granted. DataGrail shall be the exclusive owner of all right, title, and interest, including copyright, in DataGrail’s marketing and promotional materials. Customer may terminate this license at any time upon thirty (30) days written notice to [email protected].
10) Fees. Initial Subscription Fees shall be paid to DataGrail upon execution of this Agreement. Fees for any renewal terms of the Services shall be due within thirty (30) days of the date of any invoice.
a) Late Payments. DataGrail may, upon ten (10) days prior written notice, suspend or terminate the Services for payments that are more than thirty (30) days past due. Past due payments will accrue interest at the lesser of 1.5% monthly or the highest maximum interest rate allowable under applicable law.
a) Taxes. Customer is responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed in connection with the Services. To the extent DataGrail is required to collect such taxes, the applicable tax will be invoiced to Customer and paid pursuant to the payment terms set forth in this Section 10.
b) Non-Refundable. Customer shall be responsible for all fees for the entire subscription term. Except in the event of a material, uncured breach by DataGrail, or as otherwise set forth in this Agreement, fees will not be prorated upon cancellation and/or termination and all fees paid through the date of termination are nonrefundable.
11) Term. The term of the Services will commence on the date set forth in the Services Order Form and shall continue for the periodic term identified therein, and any renewal thereof, unless earlier terminated pursuant to the terms of this Agreement.
12) Services Automatic Renewal. Except as otherwise specified in the Services Order Form, Services will automatically renew for subsequent periodic terms equal to the expiring subscription term, unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the applicable Services term.
a) Renewal Charges. The fees for the renewal term will be the same as that during the immediately prior term (exclusive of any promotional discounts) unless DataGrail provides prior written notice of a fee increase at least sixty (60) days before the end of the applicable subscription term.
b) Cancellation. To cancel the subscription renewal, Customer must email DataGrail at least thirty (30) days at [email protected] prior to the applicable renewal date.
13) Use Restrictions. Customer will not, directly or indirectly, alter or modify the Subscription Services, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Services. Customer will not sell, resell, license, sublicense, distribute, rent or lease the Services to any third party for any purpose, commercial or otherwise.
14) Confidentiality & Non-Disclosure. In providing the Services under this Agreement, DataGrail may have access to Customer’s confidential and proprietary information, including for the avoidance of doubt, Customer Data (“Confidential Information”). To the extent such Confidential Information is disclosed to DataGrail:
a) Non-Disclosure Obligation. DataGrail shall not disclose any Confidential Information to any third party for any reason without Customer’s prior written consent, other than its employees or agents who have a need to know about such information in order to provide the Services, provided such employees or agents are subject to written confidentiality agreements no less restrictive than the terms set forth herein.
b) Required Disclosure. In the event DataGrail is requested or required by legal process to disclose any of the Confidential Information, DataGrail shall give Customer prompt notice so that Customer may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, DataGrail shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose.
c) Injunctive Relief. Both Parties understand and agree that monetary damages will not be a sufficient remedy for any breach of DataGrail’s confidentiality obligations under this Section, and that Customer shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies but will be in addition to all other remedies available to Customer at law or in equity.
15) Customer Support. DataGrail’s Customer support personnel shall respond to Customer’s reasonable telephone and email inquiries regarding issues relating to the Services from 7:00 a.m. to 8:00 p.m., Pacific Time, Monday through Friday, except for standard legal U.S. holidays.
16) Representations and Warranties. Each Party represents and warrants that:
a) Good Standing. Each Party is a business duly incorporated and in good standing under the laws of its state of incorporation.
b) Corporate Authority. Each Party has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement.
c) Compliance with Applicable Laws. Each Party shall comply with all international, federal or state laws or regulations applicable to the performance of its obligations under this Agreement.
d) Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access or use any Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.
17) Termination.
a) Automatic Termination. This Agreement shall automatically terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts, (ii) upon either Party making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
b) Breach. Either Party may terminate this Agreement if the other Party breaches any material provisions of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
c) Survival. The following Sections survive termination of this Agreement: Individual Binding Arbitration, Promotional License, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Indemnity, Limitation of Liability, and Choice of Law.
18) DISCLAIMER OF WARRANTIES. UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE THROUGH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DATAGRAIL DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR FREE OF DEFECTS, INACCURACIES OR ERRORS. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, DATAGRAIL EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND MERCHANTABILITY.
19) DISCLAIMER OF CUSTOMER’S THIRD PARTY SERVICE PROVIDERS. THE SERVICES OFFER CUSTOMERS THE OPTION TO DIRECTLY CONNECT WITH CUSTOMER’S THIRD PARTY SERVICE PROVIDERS TO AUTOMATE CUSTOMER’S PRIVACY PROGRAM. DATAGRAIL DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS OR OMISSIONS OF SUCH THIRD PARTY SERVICE PROVIDERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, DATAGRAIL MAKES NO WARRANTIES REGARDING THE SERVICES, CONTENT, INFORMATION OR SERVICES AVAILABILITY OF CUSTOMER’S THIRD PARTY SERVICE PROVIDERS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
20) LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A BREACH OF SECTION 6 (CUSTOMER DATA PROCESSING; PRIVACY & SECURITY), SECTION 14 (CONFIDENTIALITY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS (SECTION 21) (COLLECTIVELY THE “EXCEPTIONS”), OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO THE EXCEPTIONS OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY, INCLUDING THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID TO DATAGRAIL IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. EACH PARTY’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO THE EXCEPTIONS SHALL BE FURTHER LIMITED TO $1,000,000.
a) By DataGrail. To the maximum extent permitted by law, DataGrail agrees to indemnify, defend and hold harmless Customer, and its Customer officers, directors, shareholders, employees, representatives, and each of their respective successors and assigns (the “Customer Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any third party claim, demand or action arising out of or relating to (i) a breach by DataGrail of the DPA, Section 6 (Customer Data Processing; Privacy & Security) or Section 13 (Confidentiality) of this Agreement; or (ii) a claim that the Subscription Services infringe a third party’s patent, copyright, trade secret or trademark. DataGrail will not have liability for, and Customer will defend DataGrail against, and pay any damages awarded against DataGrail and direct expenses, including reasonable attorneys' fees to the extent the claimed infringement would not have occurred but for (1) the use of the Subscription Services other than in accordance with DataGrail’s published instructions, (2) any unauthorized modification or alteration of the Subscription Services by Customer, (3) any combination or use of the Subscription Services with any other product or system or technologies not supplied by DataGrail or otherwise anticipated by this Agreement, (4) DataGrail's compliance with Customer's design or specifications, and/or (5) any refusal to accept or use suitable modified or replacement of the Subscription Services provided by DataGrail to avoid infringement. In the event of claimed infringement, DataGrail shall, at its option: (A) obtain a right for Customer to continue using the Subscription Services for no additional fee; (B) modify the Subscription Services (as applicable) to make it non-infringing; (C) replace the Subscription Services (as applicable) with a non-infringing equivalent with the same functionality, features, and performance; or (D) terminate this Agreement and refund on a pro rata basis the unused portion of the Subscription Fees.
b) By Customer. To the maximum extent permitted by law, Customer agrees to indemnify, defend and hold harmless DataGrail, and its DataGrail officers, directors, shareholders, employees, representatives, and each of their respective successors and assigns (the “DataGrail Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any third party claim, demand or action arising out of or relating to a claim that Customer did not have the right to authorize DataGrail to process the Customer Data.
c) Notice. As a condition to an indemnifying Party’s (each, an “Indemnitor”) obligations under this Section, a Party entitled to indemnification (each, an “Indemnitee”) will: (i) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim; (iv) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim that involves a remedy other than payment without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
22) Miscellaneous
a) Force Majeure. DataGrail will not be liable or responsible for any delays in providing the Services, or for failing to provide the Services, as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, denial of service attack, fire, flood, civil disobedience, terrorism, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, denial of service attacks, war or acts of God.
b) No Agency. No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by this Agreement.
c) Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
d) Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
e) Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles. The Parties consent to the jurisdiction of the State of California, and venue in San Francisco County, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof
f) Assignment. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
g) Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
h) No Waiver. No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
i) Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
j) Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered to: DataGrail at: 164 Townsend, Suite 12 San Francisco 94107 and to Customer at the address provided in the Services Order Form.
a) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.
b) Execution. Either Party may execute this Agreement with either a manual or digital signature. “Digital signature" means an electronic identifier that is intended by the Party using it to have the same force and effect as the use of a manual signature. A signed copy of this Agreement delivered via facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.
23) Service Orders; Order of Precedence. Each Services Order Form will, by this reference, be incorporated in and made a part of this Agreement and will be subject to the terms and conditions of this Agreement. The term “Agreement”, as used herein, includes this Agreement, any Services Order Forms, and all exhibits and schedules attached thereto. In the event of any conflict between this Agreement and Services Order Form, the terms of the most current Services Order Form will control.
24) Entire Agreement. This Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.