Effective January 17, 2019
THIS MASTER AGREEMENT is entered into between Signiant, Inc. and Licensee as of the date set forth in the applicable Ordering Document. This Agreement, together with the Product Terms and Conditions (defined below), sets forth the terms and conditions under which Signiant (i) in the case of perpetually license software, grants Licensee a limited license to use the Product (ii) in the case of software-as-a-service Products, grants access to the Product or (iii) provides Services to Licensee as specifically identified in one or more Statements of Work. Each Ordering Document and Statement of Work executed by the parties or attached hereto shall be considered part of this Agreement and subject to its terms and conditions.
“Agreement” means this Master Agreement.
“Claim” means an action brought against a party to this agreement by a third party.
“Controlled Technology” means the Product, related technical data, Documentation and/or Services.
“Documentation” means any specifications, guides, reference documents or other documentation related to the Product which Signiant provides to Licensee.
“Evaluation Period” means (i) a pre-determined evaluation period, if an evaluation period is pre-determined in the Product or (ii) thirty (30) days from the date of Licensee’s initial installation of the Product, if no such evaluation period is pre-determined in the Product.
“Licensee” means the company identified above.
“Licensee Content” means materials transmitted or received by Licensee through it’s use of Signiant’s Product(s).
“Ordering Documents” means a license order schedule, purchase order or SaaS product ordering document.
“Permitted Third Parties” means third parties such as customers, consultants or vendors of Licensee
“Product” means the Signiant software product licensed to Licensee in connection with this Agreement.
“Product Terms and Conditions” means the terms and conditions available here as updated from time to time.
“Proprietary Information” means information disclosed by Licensee or Signiant including the Product and the Work (as Proprietary Information of Signiant) and any and all trade secrets or confidential or proprietary information designated as such orally or in writing by the disclosing party at the time of disclosure.
“Services” means any professional services provided by Signiant in connection with this Agreement and delivered pursuant to a Statement of Work.
“Signiant” means Signiant, Inc.
“Statement of Work” means a statement of work signed pursuant to this Agreement.
“Term” means the term specified in the applicable Ordering Document together with any renewal term.
“Third Party Notices” means license notices, terms and/or conditions accompanying the Third Party Software.
“Third Party Products” means third party software products that may accompany or be contained in the Product.
“Upgrades” means patches, releases, modifications and updates to, and new versions of, the Product provided by Signiant to its customers generally and at no additional charge, but does not include Products marketed by Signiant as a separate product or as a module for which Signiant generally charges additional fees.
“Work” means any work, ideas, inventions, discoveries, processes and improvements, computer programs, software products, specifications, operating instructions, notes, and all other documentation created or conceived, alone or with others, in connection with Services rendered hereunder to which Licensee is provided access to and/or use of under a Statement of Work.
2. OWNERSHIP; LICENSE TO THE WORK
2.1 Unless otherwise agreed to in a Statement of Work, the Work and all intellectual property rights therein, will remain the sole property of Signiant, and shall constitute trade secrets and Proprietary Information of Signiant (defined below) and its licensors, and nothing in this Agreement will be construed to convey any title or ownership rights to Licensee. Upon delivery of the Work and receipt of payment therefor, Signiant grants Licensee a non-exclusive limited license to use the Work for its internal use solely as set forth in the applicable Statement of Work. In addition, notwithstanding section 2.2, (i) Signiant’s Proprietary Information and (ii) all materials, documents, information, enhancements, inventions and discoveries related to Signiant’s business processes, procedures, methodologies, software and other technologies, will be the sole and exclusive property of Signiant.
2.2 Licensee will retain ownership to any of Licensee’s data, programs, reports, and documentation and any Proprietary Information provided by Licensee to Signiant in connection with this Agreement or any Statement of Work.
Unless specified otherwise in the Ordering Document, all fees and reimbursement of expenses (as provided below) are due and payable within thirty (30) days from the date of Signiant’s applicable invoice. All amounts shall be paid in U.S. Dollars. The fees identified in the Ordering Document are exclusive of taxes or duties. Licensee agrees to pay (i) for reimbursement of reasonable out-of-pocket expenses incurred by Signiant in connection with providing Services and (ii) any and all taxes and duties that may be imposed by any taxing authority in connection with the Agreement, excluding taxes based on Signiant’s income or franchise taxes. Past due amounts are subject to a late charge equal to the lesser of 1-1/2% per month or the maximum amount allowed by law. In the event that Licensee fails to make payment to Signiant within fifteen (15) days following the applicable payment due date, Signiant reserves the right to suspend Licensee’s use of the Product until payment is made in full for all amounts past due.
4.1 Each party will protect all Proprietary Information it receives from the other party using at least the same level of care that it uses to safeguard its own Proprietary Information, but in no event less than reasonable care. Each party agrees to receive and hold in confidence and not disclose to any third parties, except as explicitly allowed hereunder, any Proprietary Information of the other party. Each party may disclose Proprietary Information to its employees and to consultants under contract with the receiving party who need to know such information in connection with such party’s performance of this Agreement, provided all such employees and consultants are bound in writing by confidentiality terms no less protective of the other party’s Proprietary Information than those of this Agreement. Neither party will remove or modify any proprietary notice made part of any Proprietary Information of the other party and shall reproduce all proprietary rights notices on any copies of such materials. Signiant, with reasonable prior notice, will have the right to audit the usage of the Product and Work and Licensee’s compliance with this Agreement. Notwithstanding anything herein to the contrary, Licensee acknowledges and agrees that Signiant may use Licensee Proprietary Information in order to test, diagnose or resolve errors with deliverables or software to which Licensee has provided access.
4.2 Each party agrees that any breach by it of this Section 5 may cause the other party substantial and irreparable harm and, therefore, in the event of any such breach or threatened breach, in addition to other remedies which may be available, the disclosing party will have the right to seek specific performance and other injunctive and equitable relief. The receiving party agrees to immediately notify the disclosing party of any unauthorized disclosure or potential disclosure of the disclosing party’s Proprietary Information upon becoming aware of such disclosure or potential disclosure.
4.3 The confidentiality obligations of this section will not apply to information that (i) is or becomes part of the public domain through no act or omission of the receiving party, (ii) was in the receiving party’s lawful possession prior to the disclosure other than as a result of having been provided by the disclosing party, (iii) is lawfully obtained from a third party without restriction on disclosure or (iv) can be documented as having been independently developed by the receiving party without use of the other party’s Proprietary Information.
5. TERM; TERMINATION; SUSPENSION
5.1 This Agreement may be terminated by either party upon written notice, provided the basis for such termination is a material failure by the other party to perform its obligations hereunder and such failure is not corrected within thirty (30) days from the date such notice is received. This Agreement may also be terminated for convenience by either party upon written notice if there is no Ordering Document in effect at the time of termination. Signiant will be entitled to, and Licensee shall pay, all fees earned and reimbursable expenses incurred, and any other termination related charges as set forth in the applicable Ordering Document or Statement of Work, as of the effective date of the termination.
5.2 This Agreement shall remain in effect as to any Product or Services during the applicable Term. Where such term is limited, and except as otherwise set forth in the applicable Ordering Document, such Term shall automatically renew for periods of one year after the initial Term, subject to the payment by Licensee of the applicable license fee, unless either party provides written notice of its intent to not renew the Term at least ninety (90) days’ prior to the completion of the then current term.
5.3 Upon any termination of this Agreement, Licensee will promptly discontinue all use of the Product and return all copies of the Product and related materials in its possession or control to Signiant or certify to their destruction, at Signiant’s option.
5.4 The provisions of Sections 1 (as to restrictions and acknowledgments only), 2, 3, 4, 7, 8, 9, 10, 11 and 13 will survive expiration or termination.
6.1 Provided that Licensee is in compliance with this Agreement and the applicable Ordering Document, Licensee will be entitled to receive Upgrades and then-standard customer support during the Term and in accordance with Signiant’s then-current customer support practices.
7. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
7.1 If at any time within the period ending ninety (90) days from the start of the license term specified in the applicable Ordering Document, the Product delivered thereunder substantially fails to perform the functions described in the applicable Documentation, Licensee will promptly notify Signiant in writing of such alleged nonconformance. Signiant will, at its own cost and expense and within thirty (30) days of receipt of such written notification, take commercially reasonable steps to correct such deficiency. Should Signiant fail to correct such deficiency, Licensee may, as its sole remedy, upon giving Signiant written notice within five (5) days of such failure, terminate the license to the affected Product, return such Product to Signiant and receive a refund of all license fees paid by Licensee for such Product. Signiant makes no warranty that any Product will operate uninterrupted or be error-free. EXCEPT FOR THE EXPRESS WARRANTY IN THIS SECTION, SIGNIANT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT.
7.2 The Product is not intended for use by anyone under 13 years of age. By entering into this Agreement, Licensee is representing to Signiant that each User is over 13 years of age.
7.3 Licensee acknowledges that the Product may be used to transmit Licensee Content to third parties, including without limitation, Permitted Third Parties, users, Licensee’s cloud storage provider or other Licensee vendors. Licensee is responsible for maintaining and protecting all Licensee Content. Signiant will not be liable for any loss or corruption of Licensee Content, or for any costs or expenses associated with backing up or restoring any Licensee Content. IN NO EVENT SHALL SIGNIANT HAVE ANY LIABILITY WHATSOEVER FOR ANY ACTIONS OR INACTIONS OF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, LOSS, CORRUPTION, FAILURE OF TRANSMISSION OR RECEIPT, MISDIRECTION OR MISAPPROPRIATION OF LICENSEE CONTENT.
8.1 Signiant shall indemnify, defend and hold Licensee harmless from any Claim to the extent that is based on an allegation that the Product, when used within the scope of this Agreement and in accordance with the applicable Documentation, infringes or misappropriates a United States patent, copyright, trademark or trade secret of such third party. Should any Product become, or in Signiant’s opinion is likely to become, the subject of such a Claim, Signiant may at its option (i) procure for Licensee the right to continue using the Product, or (ii) replace or modify the Product to make it non-infringing, or (iii) terminate the license for the affected Product. Upon termination of the license, as Signiant’s sole liability and Licensee’s sole remedy, Signiant will refund to Licensee for any term license all pre-paid and unused fees for any term licenses or if the license purchased is a perpetual license, all license fees paid by Licensee for the terminated license less an amount equal to one sixtieth of such license fees for each month or portion thereof that has elapsed since the start of the license term of the applicable license. The foregoing states the entire liability of Signiant with respect to any such Claim.
8.2 Licensee will indemnify and hold Signiant and its affiliates, directors, officers, employees and agents (including successors and assigns) harmless against any claim, suit, proceeding or other action arising out of or relating to (i) Licensee’s failure to comply with its obligations under this Agreement or (ii) a claim that the any materials or data that Licensee Content infringes any patent, copyright, or trade secret or other proprietary right (including privacy rights) of any third party.
8.3 The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement. The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
9. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY, its affiliates, directors, officers, employees and agents (including successors and assigns) OR ANY SIGNIANT LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR FOR ANY OTHER INDIRECT DAMAGES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4, NEITHER PARTY, its affiliates, directors, officers, employees and agents (including successors and assigns) WILL BE LIABLE HEREUNDER FOR DAMAGES EXCEEDING THE AMOUNT OF THE FEES PAID BY LICENSEE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM FOR THE SOFTWARE, SERVICES OR WORK THAT GAVE RISE TO SUCH DAMAGES. NO ACTION OR CLAIM MAY BE INSTITUTED MORE THAN 12 MONTHS AFTER THE EVENT GIVING RISE TO SUCH CLAIM.
10. THIRD PARTY SOFTWARE
Licensee acknowledges that the Product may contain or be accompanied by Third Party Products subject to Third Party Notices. The Third-Party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between the Third-Party Notices and the other portions of this Agreement, the Third-Party Notices will take precedence (but solely with respect to the Third-Party Products to which the Third-Party Notices relate).
11. EXPORT REGULATION
Licensee acknowledges that the Controlled Technology is subject to the import and export laws of the United States and the laws of any country where Controlled Technology is imported or re-exported. Licensee agrees to comply with all applicable laws and will not to export any Controlled Technology in contravention of this Agreement or any applicable law or to any prohibited country, entity, or person for which a United States export license or other United States governmental approval is required.
12. PRODUCT EVALUATION
Notwithstanding anything herein to the contrary, if the Product is provided to Licensee for evaluation purposes, the following terms and conditions in this Section 12 shall apply. Signiant grants to Licensee a nonexclusive, temporary, royalty-free, non-assignable license to use the Product solely for internal non-production evaluation during the Evaluation Period. The Product may not be transferred and is provided “AS IS” without warranty of any kind, and Signiant’s support obligations under Section 6 and indemnification obligations under Section 8 shall not apply. The Product may contain an automatic disabling mechanism that prevents its use after expiration of the Evaluation Period. Upon expiration of the Evaluation Period, Licensee will cease use of the Product and destroy all copies of the Product. All other terms and conditions of this License Agreement shall otherwise apply to Licensee during its evaluation of the Product.
The relationship of Signiant to Licensee is that of an independent contractor and neither this Agreement, nor any performance hereunder shall create an employer-employee relationship between Signiant and Licensee or make either party an agent of the other. In the event of a conflict between this Agreement and any Ordering Document or Statement of Work, the terms and conditions of this Agreement will govern over any contradictory terms in any Ordering Document (and no pre-printed or alternative terms and conditions in any Ordering Document, purchase order, confirmation or other communication or document provided by Licensee shall be of any effect), and the terms of any Statement of Work signed by Signiant shall govern over any contradictory terms in this Agreement. Neither party may assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without the other party’s prior written consent, except that no consent shall be required for an assignment of this Agreement by either party pursuant to a change of control or a merger or sale of substantially all of a party’s assets or outstanding stock. A waiver of any requirement hereunder in one instance will not constitute a waiver of such requirement in any other instance. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A, without regard to its choice of law provisions. The United Nations Convention on Contracts for International Sale of Goods is specifically excluded. All proceedings relating to or arising out of the subject matter hereof will be maintained exclusively in the courts situated in Boston, Massachusetts, U.S.A., and the parties hereby consent to personal jurisdiction and venue therein and hereby waive any right to object to personal jurisdiction or venue therein. This Agreement is the entire agreement between the parties as to its subject matter and supersedes all other agreements, proposals, representations and other understandings regarding the Product and the Work, whether oral or written. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth at the beginning of this Agreement. Either party may change its address by giving written notice of such change to the other party. Alterations or modifications of this Agreement will be valid only if made in a writing signed by both parties authorized signatories. Except as otherwise provided herein, if the performance of any obligation hereunder (other than the making of payments hereunder) is prevented, restricted or interfered with by reason of any event, act or condition beyond the reasonable control of the affected party, the party so affected, upon written notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference.