Enterprise Master Services Agreement

Enterprise Master Services Agreement

Revised August 2, 2016

This Enterprise Master Services Agreement (the “Agreement”) is entered into as of the Effective Date between Contactually, Inc. (“Contactually”) and the entity signing related agreements (“Customer”).

1. Overview
   1. This Agreement permits Customer to purchase Services from Contactually pursuant to mutually executed Purchase Orders and Statements of Work (each, an “Order”)..
   2. This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer that refer to this Agreement.
   3. Capitalized terms used in this Agreement are defined in the place where they are first used, or in the Glossary at the end of this Agreement.
2. Subscription SERVICES
   1. Service Description. Contactually provides a proprietary web-based customer relationship management platform (the “Subscription Service”) in which it aggregates contact information provided by Customer with additional information that Contactually obtains from third-party services, including email service providers, social media accounts, and mobile phones. The Subscription Service includes the Contactually software used to collect, track, and analyze and supplement Data on behalf of Customer, together with any Documentation provided to Customer by Contactually pursuant to this Agreement. The Order details the Subscription Service, including the number of Users and the initial term of the Subscription Service.
   2. License. Contactually hereby grants to Customer a limited, non-exclusive, revocable, and non-transferable, right to use the Subscription Services during the Term (without the right to grant sublicenses) solely (i) for Customer’s own internal business purposes; (ii) subject to the terms and conditions of this Agreement and applicable Order; and (iii) for the number of Users subscribed and paid for pursuant to the applicable Order. Any and all rights not expressly granted to Customer are reserved by Contactually.
   3. Permitted Users. Customer may permit its Users to use and access the Subscription Service, provided that Customer remains responsible for compliance by each such User with all of the terms and conditions of this Agreement, and any such use of the Subscription Service is for the sole benefit of Customer. Each User must have a unique User name and password combination for using the Subscription Service (“User Account”). Multiple individuals must not share a User Account. New User Accounts may be set up for new Users in replacement of User Accounts that have been de-activated for former Users who no longer are permitted access to Subscription Product. Contactually may audit Customer’s User count and use through the Subscription Service at any time. Customer is responsible for strictly maintaining the confidentiality and integrity of User names and passwords, and must promptly notify Contactually upon becoming aware that the security or integrity of a User name or password has been compromised. Contactually may contact users directly to troubleshoot product issues, to conduct training and coaching, or to advertise product features and services.
   4. Restrictions. With respect to the Subscription Service and any other Contactually Intellectual Property, Customer may not (and may not permit any other party to): (i) license, sublicense, sell, resell, rent, lease, copy, transfer, assign, distribute or otherwise commercially exploit it; (ii) modify or make derivative works based upon it; (iii) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to it; (iv) interfere with or disrupt the integrity or performance of the Subscription Service; (v) attempt to gain unauthorized access to the subscription Service; (vi) publish Supplementary Data or any data derived therefrom or otherwise use the Subscription Service other than for lawful, internal, business purposes; (vii) incorporate the Subscription Service (or any part thereof) into another product or service or otherwise use the Subscription Service (or any part thereof) to provide any product or service to a third party, (viii) remove or obscure any Contactually Marks or other notices contained in it (including from any Supplementary Data, Documentation and, any reports or data printed from the Subscription Service); or (ix) make use of it in any way to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics; or (c) copy any of its ideas, features, functions, or graphics. Customer shall comply with all applicable laws and regulations concerning export, data privacy and protection and cooperate with Contactually in connection with compliance thereto. Contactually retains the right to suspend or terminate the Subscription Service or this Agreement immediately for any breach by Customer of this Section.
   5. Compliance. Customer shall ensure that Customer’s use of the Subscription Service, Customer’s use and collection of Customer Data and all Customer Data provided to Contactually are at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. As between Customer and Contactually, Customer shall be responsible for obtaining the necessary clearances, consents and approvals from individuals under all applicable laws or regulations.
   6. Privacy Policy. The information we collect through our Service helps us provide you with information specific to your needs and interests. This privacy policy (the “Privacy Policy”) covers the Contactually service (the “Service”). Please read below to review our Privacy Policy at /about/privacy-policy/
   7. Account Suspension. Contactually may monitor Subscription Service activity and suspend any User Account: (i) if applicable fees have not been paid; (ii) which Contactually reasonably believes are not authorized or are being used in violation of this Agreement, including any activity harmful or potentially harmful to Contactually Intellectual Property. Contactually will promptly notify Customer of any suspension and will work with Customer in good faith to resolve the issues that prompted suspension. Customer will not receive a refund or credit for any period of suspension. Contactually reserves the right to assess a reconnection fee in the event the suspension results from Customer’s failure to pay the applicable fees or Customer’s violation of this Agreement. Suspension is without prejudice to other remedies available to Contactually for any violation of this Agreement by Customer.
3. PROFESSIONAL SERVICES
   1. Contactually also provides a range of consulting services related to implementing and maintaining the Subscription Service (“Professional Services”). Professional Services will be described in an Order or a Statement of Work or both.
   2. Contactually will perform the Professional Services and Customer will pay Contactually the fees designated in the applicable Order. If fees are not designated in the Order, the fees will be Contactually’s prevailing then-current rates. Customer will also reimburse Contactually for all reasonable out-of-pocket expenses actually incurred by Contactually in performance of the Professional Services, which may include reasonable travel and living expenses.
   3. Customer acknowledges that Contactually schedules resources in advance and that Contactually would incur significant expenses, including downtime of those resources, if scheduled Professional Services are canceled, delayed, or rescheduled: (i) by Customer for its convenience; or (ii) due to Customer delay or being unprepared for performance of the Professional Services. If Customer cancels, reschedules or delays the Professional Services, Contactually may assess a cancellation fee of eighty percent (80%) of the total price of the scheduled Professional Service if Contactually cannot reschedule the resources to a chargeable project for an alternative customer, and Customer will reimburse Contactually for any non-refundable airline fees, change fees or other nonrefundable travel and related expenses unused due to the delay.
   4. Contactually reserves the right to suspend or re-schedule any Professional Services if Customer is delinquent on any payment obligations under this Agreement.
4. Fees and Payment
   1. Fees for Services are set forth in the applicable Order. Contactually will invoice Customer the fees for the Subscription Services in advance except for the addition of User Accounts and for the Professional Services in arrears, or as otherwise set forth in an Order.
   2. Customer will pay for each User Account active or frozen during the month, but not less than the minimum number of active User Accounts set forth in the Purchase Order. If User Accounts are added, the fee will be pro-rated from the date the User Account is activated, and will be included in the next invoice issued by Contactually.
   3. Unless stated otherwise in the Order, Customer shall pay all fees and expenses without setoff, deduction, or delay within 15 days of receipt of invoice by ACH as provided in the invoice. All fees are non-refundable. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
   4. The fees for the Subscription Service are fixed for the Initial Term.
   5. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Contactually.
5. PROPRIETARY RIGHTS
   1. Each Party shall retain all rights, title, and interest, in and to Intellectual Property. Contactually expressly retains all rights, title, and interest to the Subscription Service and Documentation and any improved, updated, modified or additional parts thereof. Any Intellectual Property produced, conceived, or otherwise developed by or for Contactually hereunder shall be the exclusive property of Contactually.
   2. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. Customer hereby grants to Contactually a non-exclusive, worldwide, royalty-free right to use, copy, transmit and publicly perform and display the Customer Data solely to the extent necessary to provide the Services to Customer.
   3. Customer, from time to time, may submit comments, questions, information, ideas, description of processes, or other information to Contactually (“Feedback”). Contactually may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
   4. This is a subscription agreement for access to and use of the Subscription Service and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to use the Subscription Service and that irrespective of any use of the words “purchase”, “sale” or like terms that may be used in any document, no ownership rights to the Subscription Service are being conveyed to Customer under this Agreement. Customer agrees that Contactually or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to: the Subscription Service; Documentation; methodologies, techniques, know-how and processes that are generally applicable to the Services; any and all related and underlying software code, deliverables, technology and documentation; and any derivative works, modifications or improvements of any of the foregoing, including without limitation as may incorporate Feedback. Further, Customer acknowledges that the Subscription Service is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any underlying code or element of the Subscription Service itself.
   5. Aggregated Anonymous Data. Customer agrees that Contactually may obtain and aggregate data about Customer’s use of the Subscription Service that is non-personally identifiable with respect to Customer or any Users (“Aggregated Anonymous Data”), and Contactually may use the Aggregated Anonymous Data to enhance the Subscription Service and otherwise for any business purpose.
6. CONFIDENTIALITY.
   1. General. If a party (the “Receiving Party”) obtains access to Confidential Information (as defined below) of the other party (the “Disclosing Party”) in connection with the negotiation or performance of this Agreement, the Receiving Party agrees: (i) not to directly or indirectly disclose the Confidential Information to any third party except as contemplated by this Agreement; and (ii) to use the Confidential Information only to perform its obligations and exercise its rights under this Agreement. The Receiving Party shall use at least the same degree of care to protect the Confidential Information of the Disclosing Party from unauthorized disclosure or access that the Receiving Party uses to protect its own Confidential Information, but not less than reasonable care.
   2. Confidential Information. “Confidential Information” shall mean: (i) all information about or belonging to the Disclosing Party or a third party that is disclosed or otherwise becomes known to the Receiving Party in connection with this Agreement and that is not a matter of public knowledge; (ii) all trade secrets, customer information and Intellectual Property owned or licensed by the Disclosing Party; and (iii) all personally identifiable information contained in the Disclosing Party’s records. The terms of this Agreement are the Confidential Information of both parties, which may be disclosed by a party, only to the extent reasonably necessary, to its legal and financial advisors and to subcontractors or other third parties that will be providing services in connection with the Agreement and who are under an obligation to protect the confidentiality of the Confidential Information.
   3. Exclusions. Any particular information of the Disclosing Party shall not be considered Confidential Information if it: (a) was previously rightfully known by the Receiving Party free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; or (d) is subject to disclosure pursuant to a subpoena, judicial or governmental requirement, or order, provided that the Receiving Party has given the Disclosing Party sufficient prior notice of such subpoena, requirement, or order, to permit the Disclosing Party a reasonable opportunity to object to the subpoena, requirement, or order and to allow the Disclosing Party the opportunity to seek a protective order or other appropriate remedy.
   4. No Implied Licenses. Nothing contained in this Section shall be construed as obligating a party to disclose its Confidential Information to the other party, or as granting to or conferring on a Party, expressly or impliedly, any rights or licenses to the Confidential Information of the other party. Nothing contained in this Section shall be construed as limiting or diminishing in any respect the scope of any licenses granted under this Agreement.
7. WARRANTIES
   1. Mutual Warranties. Each Party hereby represents and warrants that: (i) it is a legal entity duly organized, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) its performance of its obligations under this Agreement will not knowingly violate any other agreement between such Party and any third party, and (iv) its performance related to this Agreement will comply with all applicable law.
   2. Limitations. Except for the express warranties set forth in this agreement and to the maximum extent permitted by applicable law, each Party disclaims any and all other representations and warranties, whether express, implied or statutory, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, data accuracy, system integration, title, non-infringement or quiet enjoyment. No warranty is made by either Party on the basis of trade usage, course of dealing or course of trade.
   3. Disclaimers. Contactually exercises no control over, and accepts no responsibility for, any third-party components of the Service which are outside Contactually’s control, such as internet access, and computer or network equipment, all of which are the responsibility of Customer. Except as expressly provided in this Agreement, the Services are provided “as is,” and, to the maximum extent permitted under applicable law, Contactually makes no (and hereby disclaims all) other warranties, representations, or conditions, whether written, oral, express, implied or statutory, including any implied warranties of merchantability, title, against infringement, or fitness for a particular purpose, with respect to the use, misuse, or inability to use the Services (in whole or in part) or any other products or services provided to Customer by Contactually, or otherwise under this Agreement. Without limiting the foregoing, Contactually does not warrant that all errors can be corrected, or that operation of the Services shall be uninterrupted or error-free.
8. LIMITATION OF LIABILITY
   1. In no event shall either Party be liable for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if advised of the possibility of such damages. Except with respect to breaches of confidentiality and indemnification obligations, the cumulative liability of a Party for all claims arising from or relating to this agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, shall not exceed the amounts paid or payable under this Agreement during the 12 month period.
9. INDEMNIFICATION
   1. Indemnification by Contactually. Contactually, at its own expense, will indemnify, defend, and hold harmless Customer, its affiliates, and its and their officers, directors, employees and agents, from and against any loss, demand, cause of action, debt or liability ordered by a court or agreed upon in settlement arising out of a third-party claim that the Subscription Service, or Customer’s use of the Subscription Service, infringes any patent, copyright or other proprietary right enforceable in the United States. Contactually has no liability for any claim that arises due to (i) any combination of the Subscription Service with software, equipment or materials not provided or specified by Contactually; (ii) Customer’s use of any Supplementary Data; (iii) Customer’s unauthorized use or modification of the Subscription Service.
   2. Indemnification by Customer. Customer, at its own expense, will indemnify, defend, and hold harmless Contactually, its affiliates, and its and their officers, directors, employees and agents, from and against any loss, demand, cause of action, debt or liability ordered by a court or agreed upon in settlement arising out of a third-party claim resulting from: (i) the provision by Customer or the use by Contactually of any Customer Data; (ii) any unauthorized use or access of User names or password; and (iii) any unauthorized use or access of the Service.
   3. Procedure. The Party seeking indemnification hereunder (“Indemnified Party”) shall promptly inform the other Party (“Indemnifying Party”) of any suit or proceeding filed against the Indemnified Party for which the Indemnified Party is entitled to indemnification hereunder, but failure to give notice will not diminish the Indemnifying Party’s obligation under this Section if the failure does not materially prejudice the Indemnifying Party’s ability to defend the Claim. The Indemnifying Party may direct the defense and settlement of any such claim, with counsel of its choosing. The Indemnified Party will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance reasonably necessary for the defense and settlement of the claim. The Indemnified Party shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. An Indemnifying Party will not enter into any settlement of an indemnified claim that imposes any obligation, burden or liability on the indemnified Party without the written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed).
   4. Action. If use of the Subscription Service is enjoined, or if Contactually reasonably believes that use of the Subscription Service may be enjoined, Contactually may, at its option, (i) obtain the right for Customer to continue using the Subscription Service; or (ii) replace or modify the Subscription Service so it is no longer infringing, or (iii) if neither (ii) nor (i) can reasonably be accomplished, terminate the Customer’s license to use the Subscription Service and issue a pro rata refund of the Subscription Fees prepaid for the time period following the date of termination.
10. TERM and TERMINATION
    1. Term. The Initial Term of this Agreement specified on the Order. At the end of the Initial Term, this Agreement and will be subject to renew for successive one-year periods (“Renewal Term”) unless the either party provides 30 days’ written notice of cancellation.
    2. Termination. A Party may terminate this Agreement (i) for a material breach of the Agreement by the other Party, if such other Party has not cured the breach within 30 days of receiving notice that it is in breach; (ii) immediately, upon notice, if the other Party (a) is adjudged insolvent or bankrupt, (b) has instituted against it, and not dismissed within 30 days after filing, or institutes any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency, (c) makes any assignment for the benefit of creditors, (d) appoints a receiver, liquidator or trustee of any of its property or assets, or (e) liquidates, dissolves or winds up its business, or (iii) immediately if any change occurs in any applicable laws or regulations that would, in that Party’s reasonable opinion, render the Party’s performance hereunder illegal or otherwise subject to legal challenge.
    3. Suspension of Service. In addition to any of its other rights or remedies (including but not limited to any termination rights) set forth herein, upon notice to Customer in accordance with Section 11.4 (Notice), Contactually reserves the right to suspend provision of the Subscription Service (and any related Services) without liability to Customer (i) if Customer’s account is 30 days or more overdue; (ii) if Contactually reasonably determines suspension is necessary to avoid material harm to Contactually or its business; (iii) for suspected or actual fraud; or (vi) as required by law or at the request of governmental entities having authority to suspend the Subscription Service. Customer shall remain responsible for all fees and charges Customer has incurred through the date of suspension. If Contactually thereafter restores Customer’s access to the Subscription Service, Customer shall resume accruing and paying fees pursuant to Section 4 (Fees and Payment).
    4. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately: (i) cease any and all use of and access to the Subscription Service (including any and all Contactually Intellectual Property), (b) delete (or, at Contactually’s request, return) any and all copies of the Documentation, any Contactually passwords or access codes and any other Contactually Confidential Information in its possession, and (c) pay any outstanding amounts due for Services provided through the termination date or otherwise contractually committed. All Orders and Statements of Work terminate upon termination of this Agreement. Except for any exclusive remedies specified in this Agreement, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
11. ADDITIONAL PROVISIONS
    1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the District of Columbia, without regard to conflicts of law principles or the United Nations Convention on Contracts for the International Sale of Goods. Each Party submits to the exclusive jurisdiction of the district and federal courts located in Washington, DC. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
    2. Publicity Customer grants Contactually the right to add Customer’s name and company logo to its customer list. Except for the foregoing, neither party may use the other party’s name or logo without the other party’s prior written consent.
    3. User Engagement Contactually may contact users directly to troubleshoot product issues, to conduct training and coaching, or to advertise new product features and services.
    4. Assignment. Neither Party may assign this Agreement without prior written consent of the other Party, not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either Party may assign this Agreement upon notice to (i) a successor-in-interest as a result of a merger or consolidation or in connection with the sale of all or substantially all of its assets or (ii) an affiliate of such Party.
    5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth above or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch, (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail, or (iv) if given by e-mail, by receipt of reply e-mail acknowledging receipt or by electronic logs.
    6. General. This Agreement: (i) covers the Parties’ entire agreement, and supersedes all prior discussions and writings between them, relating to its subject matter; (ii) will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns; (iii) creates no agency, partnership or employer-employee relationship between the Parties; their relationship is that of independent contractors; and (iv) has no third-party beneficiaries. If any provision in the Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the Parties’ intent; the remainder will remain in full force and effect. No failure or delay by a Party in enforcing this Agreement shall be construed as a waiver of any of its rights under it. No Party shall be deemed in default of this Agreement if the performance of its obligations is delayed or prevented by events beyond its reasonable control. The obligations of the Parties which, by their nature, would continue beyond termination or expiration of this Agreement shall survive termination or expiration of this Agreement. This Agreement may be executed via electronic signature and in counterparts, which, together, will constitute one original document. This Agreement may only be amended in writing, signed by both Parties. Notices may be delivered in person, by mail, or electronic mail and shall be deemed served when delivered, to the address specified below.

GLOSSARY
Term	Definition
Aggregated Anonymous Data	Is defined in Section 5.5.
Agreement	This Enterprise Subscription Agreement, together with any Purchase Orders, Statements of Work and other exhibits agreed to by the Parties and made a part hereof.
Confidential Information	Is defined in Section 6.2.
Contactually Properties	Any and all websites and mobile sites owned or controlled by Contactually.
Customer	The entity identified in the signature block of this Agreement.
Customer Data	Contact and other information provided by Customer for use with the Subscription Services.
Disclosing Party	Is defined in Section 6.1.
Documentation	Any documentation made available to Customer by Contactually in connection with the Service.
Effective Date	The last date entered in the signature block to this Agreement.
Feedback	Is defined in Section 5.3.
Indemnified Party	Is defined in Section 9.3.
Indemnifying Party	Is defined in Section 9.3.
Initial Term	The initial term of the Subscription Services, as set forth in the Order.
Intellectual Property	With respect to each Party, its patents, trademarks, service marks, logos, copyrights, trade secrets, and any other intellectual property.
Marks	With respect to each Party, its trademarks, service marks, and taglines and associated logos.
Order	Is defined in Section 1.1.
Parties	Collectively, Customer and Contactually.
Party	Either Customer or Contactually.
Professional Services	Is defined in Section 3.1.
Purchase Order	The document used to purchase Services under this Agreement, signed by both parties, and incorporated into this Agreement.
Receiving Party Renewal Term	Is defined in Section 6.1. Is defined in Section 10.1.
Seats	The number of Customer personnel authorized to access the Service (also referred to as “Users”).
Service	The products and services, including, without limitation, the software application used to collect, track, and analyze Data and generate Analyzed Data on behalf of Customer, together with any Documentation provided to Customer by Contactually pursuant to this Agreement and any Order hereunder.
Subscription Service	Is defined in Section 2.1.
Supplementary Data	Data generated by Contactually from any digital sources, including email service providers, social media accounts, and mobile phones; digital news and media content; and any digital communication content and messages collected through the Service from Third Party Properties, and made available to Customer through the Subscription service.
Term	The Initial Term and any renewal periods.
Third Party	Any third party from which Data is collected by the Service.
Third-Party Properties	Any websites, mobile sites, apps, and products, owned or controlled by Third Parties, from which Contactually collects Data.
User Account	Is defined in Section 2.3.
Users	The Customer personnel authorized to access the Service (also referred to as “Seats”).