Master Service Agreement
This Master Service Agreement (this “Agreement”) contains terms and conditions that govern your purchase of subscriptions to, and use of, the Services (as defined below), and is a contract between Prodigal Technologies, Inc. (“Prodigal” or "Company") and you or the entity or organization that you represent.
All references to “Customer” are to the entity or organization you represent, and you represent and warrant that you have the right, power and authority to enter into this Agreement on behalf of Customer.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Services, (2) when you click an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when you execute an order form with Prodigal that references this Agreement.
1. SaaS Services and Support
1.1 Subject to the terms of this agreement, Company will use commercially reasonable efforts to provide Customer the Services
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
2. Restrictions and Responsibilities
2.1 Customer will not, directly or indirectly: 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 Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. Confidentiality; Proprietary Rights
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information”). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third person (except in performance of the Services or as otherwise permitted herein) any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 The Company represents that any collection of personally identifiable information (“PII”) and derivatives of the same will be done in accordance with applicable data protection law whereby the purpose and the retention period for such data is clearly consented to by the Customer. In this regard, the Customer expressly agrees that any data retention by the Company will be as provided for under Clause 10 of this Agreement. The Company, further expressly agrees and acknowledges that upon rendering of the Services and transmission of all such information/material forming part of the Services to Client, the Company’s management of Customer Data and any input data provided by the Customer will be in accordance with the fully detailed Customer Data Management under Clause 10 of this Agreement.
3.4 Subject to the confidentiality obligations set forth in this Agreement, the Company shall have the right to use the Customer Data that are derived from the operations and use of the Services provided under this Agreement in an aggregated, anonymized, and statistical manner ("Anonymized Aggregated Data"). Nothing herein shall be construed as prohibiting the Company from utilizing the Anonymized Aggregated Data for the purposes of improving or developing the Company's products/services. However, the Company hereby undertakes that it shall not share with any third party, any information that reveals the identity of the Customer or Customer’s confidential information.
4. Payment of Fee
4.1 Customer will pay Company the applicable fee described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fee”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). Such change in fees shall not exceed 5% over the prior annual term. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued must be received by Company fifteen (15) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 3.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. Term and Termination
5.1 The Term of this Agreement commences on the Effective Date and continues through the expiration or earlier termination of the last Order Form to be in effect or until this Agreement is terminated pursuant to Section 5.2.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, 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. Customer will pay in full for the Services up to and including the last day on which the Services are provided. For any termination of this Agreement by Customer for cause in accordance with Section 5.2(a), Customer shall be entitled to a refund of any prepaid unused Fees for the Service purchased hereunder. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. Warranty and Disclaimers
6.1 Express Warranty: Prodigal’s Services will perform in a manner consistent with the applicable product and services description (the “ Documentation”), this Agreement and associated Order Form(s) (the “Solution Warranty”). Professional Services will be provided in a true and workmanlike manner, consistent with this Agreement and the Order (the “Services Warranty”).
6.2 Remedy for Failure of the Solution Warranty: Upon receipt of written notice of a Solution Warranty breach, Prodigal will provide a correction at no charge. If Prodigal cannot correct the breach within forty-five days from receipt of the warranty notice, then Customer may terminate the affected Order at any time within the next thirty days and receive: (i) if the breach notice was received fewer than ninety days after the Effective Date, a refund of all subscription fees paid; or (ii) if the notice was received at any other time, a prorated refund of subscription fees from the date of the warranty notice. This is Customer’s sole and exclusive remedy for a breach of the Solution Warranty.
6.3 Remedy for Failure of the Services Warranty: Upon receipt of written notice of a Services Warranty breach, Prodigal will re-perform the Professional Services as necessary to correct the breach. If Prodigal cannot correct the breach within forty-five (45) days from receipt of the warranty notice, then Customer may terminate the affected portion of the Order at any time within the next thirty (30) days and receive a refund of Professional Services fees paid for nonconforming or unperformed Professional Services. This is Customer’s sole and exclusive remedy for a breach of the Professional Services Warranty
6.4 Disclaimer: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PRODIGAL OFFERING, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS,” AND PRODIGAL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PRODIGAL DOES NOT WARRANT THAT THE USE OF ANY PRODIGAL OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES PRODIGAL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
7. Indemnity
Company shall hold Customer harmless from liability to third parties resulting from (1) infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing; provided that the sole remedy available to the Customer in the event of such infringement, shall be as provided under (a), (b) and (c) hereinbelow, or (2) a data breach suffered by the Company which involves Customer data. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. Limitations of Liability
Notwithstanding anything to the contrary, except for bodily injury of a person and a data breach of Customer data, Company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond Company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Customer to Company for the services under this agreement in the three (3) months prior to the act that directly gave rise to the liability, in each case, whether or not either Party has been advised of the possibility of such damages.
9. Publicity
Each Party may acknowledge the services Prodigal provides to Customer, the existence of this Agreement and partnership. Prodigal may use and display Customer’s name, logo, trademarks, and service marks on Prodigal;s website and in Prodigal’s marketing materials in connection with identifying Customer as a customer of Prodigal. Upon Customer’s written request, Prodigal will promptly remove any such marks from Prodigal’s website and, to the extent commercially feasible, Prodigal’s marketing materials.
10. Customer Data Management
10.1 Data collected: Customer Data includes but is not limited to such information as disclosed as part of conversations between the agents or representatives of the Customer and end-customers viz. debtors, patients and users.
10.2 Purpose for collection: The Company shall collect Customer Data for the purpose of model training, bespoke development, aggregation of data and surface insights.
10.3 Retention Period: The Customer Data that is collected by the Company shall be retained for such duration as may be required for rendering of the Services requested by the Customer.
10.4 Purge Policy: Customer Data will be purged/deleted upon receipt of written request from the Customer and upon mutual agreement of the parties.
11. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
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