Master Subscription Agreement
DEFINITIONS
“Affiliate” means any entity controlled by, controlling, or under common control with, a Party.
“Agreement” means this Master Subscription Agreement.
“Applicable Law” means all applicable laws, rules, and regulations, including without limitation export laws, anti-bribery laws, and data protection and privacy laws.
“Authorized User” is a distinct named user who is an employee or independent contractor of Customer, who Customer authorizes to access and use the Secoda Services.
“Claim” means any claim, suit, cause of action, demand, or proceeding brought by a third party.
“Customer” means the entity entering into an Order Form and/or SOW with Secoda, pursuant to this Agreement, for the purposes of purchasing the Secoda Services.
“Customer Data” means the data, content, or information that is transmitted through the Platform, whether by an Authorized User. Customer Data does not include any Secoda Data.
“Data Processing Addendum” or “DPA” means the data processing addendum or similar agreement between Secoda and Customer that details the processing of Personal Data pursuant to this Agreement. In the absence of a separately executed document, the terms found at docs.secoda.co/policies/data-processing-addendum shall be deemed the DPA.
“Documentation” means the user manuals and other documentation provided or made available to Customer by Secoda, which describe the functionality and proper use of the Platform.
“Effective Date” means the earlier of the date identified as the ‘Effective Date” in the Order Form, or the date Customer first accesses the Secoda Services.
“Feedback” means all suggestions, comments, and feedback relating to the Secoda Services that may be provided to Secoda by Customer or an Authorized User.
“Indemnified Party” means the Party to be indemnified by the Indemnifying Party pursuant to this Agreement.
“Indemnifying Party” means the Party obligated to indemnify the Indemnified Party pursuant to this Agreement.
“Intellectual Property Rights” means patent, trademark, copyright, trade secret, and any other intellectual property right.
“Losses” means any damages, liabilities, penalties, fines, losses, costs, and expenses (including reasonable attorneys’ fees).
“Order Form” means each mutually agreed upon ordering document that specifies the aspects of the Platform being licensed, the number of permitted Authorized Users, the applicable fees, and any additional terms, conditions, authorizations, and provisions applicable to the use of the foregoing.
“Party” means each of Secoda and Customer; “Parties” means collectively, Secoda and Customer.
“Platform” means Secoda’s proprietary multi-tenancy software-as-a-service platform for all-in-one data search, catalog, lineage, monitoring, and governance, and related services located in any related mobile software applications for access to and use of certain components of the Platform, and any updates, enhancements, modifications, upgrades, and derivative works thereto.
“Professional Services” means implementation, enablement, and other professional services that may be provided by Secoda to Customer, as further described in an SOW.
“Representatives” means the employees, contractors, agents, and other representatives of a Party.
“Secoda” means Secoda, Inc., an Ontario corporation, located at 109 Atlantic Ave. Toronto, ON M6K 1G1, Canada.
“Secoda Data” means: (i) the anonymized statistical information derived from Customer’s use of the Platform; (ii) the machine learning models created by Secoda and the improvements made thereto, and derivative works resulting from the provision of the Secoda Services to Customer; and (iii) the underlying source code, algorithms, object code, methods, and other technology that enables the Platform.
“Secoda Services” mean collectively, the Platform and Professional Services.
“Service Level Agreement” or “SLA” means the service levels for the Platform and related support services to be provided by Secoda to Customer, as found in Attachment 1.
“SOW” means a statement of work or similar document detailing the Professional Services to be provided by Secoda to Customer.
“Third Party Services” means any products and services utilized by Customer that are provided by third parties, where such products and services may be integrated into, or with, the Platform, at Customer’s discretion.
SCOPE OF SERVICES
Services. Subject to the terms of this Agreement and as further described in the applicable Order Form(s), Secoda will provide Customer with access to the Platform to be used by Authorized Users. An applicable SOW will details any Professional Services to be provided by Secoda to Customer, as well.
Service Level Agreement. Secoda will make the Platform available to Customer in accordance with the SLA.
Data Processing Addendum. With respect to the processing of Personal Data (as such term is defined by Applicable Law), the Parties will comply with the terms of the DPA.
Third Party Services. In the course of accessing and using the Platform, Customer will be permitted to integrate its instance of the Platform with Third Party Services. Customer acknowledges and agrees that: (i) Secoda has no control over, or liability for, Third Party Services; and (ii) Customer remains obligated to comply with all applicable terms and conditions of, or separate agreements it may have with, the owners, providers, and/or licensors of Third Party Services.
AUTHORIZED USERS; RESTRICTIONS
Authorized Users. Customer is responsible for all activities performed under its Authorized Users’ accounts. Customer will cause its Authorized Users to maintain the integrity of its Authorized Users’ account credentials and shall notify Secoda promptly upon discovering any unauthorized use of, or access to, the Platform or any disclosure of Authorized User credentials, or if any Authorized Users are no longer authorized to access and use the Platform.
Restrictions. Except as expressly authorized in this Agreement or by Secoda in writing, Customer will not, and will not permit any third party to: (i) copy, modify, adapt, or create derivative works of the Secoda Services; (ii) rent, lease, loan, resell, transfer, sublicense, display or distribute the Secoda Services to any third party; (iii) use or offer any functionality of the Secoda Services on a service provider, service bureau or time sharing basis; (iv) decompile, disassemble, translate or reverse-engineer the Platform or otherwise attempt to derive the source code, algorithms, object code, methods, or techniques used or embodied in, or comprising, the Platform; (v) disclose to any third party the results of any benchmark tests or other evaluation of the Secoda Services; (vi) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Platform or Documentation; (vii) use or view the Secoda Services for the purpose of building a product or service competitive with the Secoda Services; or (viii) use the Secoda Services to transmit code, files, scripts, agents, or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses, or for any illegal, unauthorized, or otherwise improper purposes, such as, but not limited to, defame, abuse, harass, stalk, threaten, promote injury against any individual or group or otherwise violate any Applicable Law ((i)-(viii) collectively, the “Restrictions”).
CONFIDENTIALITY
Confidential Information. During the Term, a Party (“Recipient”) may be provided, or otherwise come into contact, with certain information of the other Party (“Discloser”) that is designated as ‘confidential’ and/or ‘proprietary’, or where, given the nature of the information and the circumstances of the disclosure the Recipient should reasonably understand such information to be confidential and/or proprietary to the Discloser (“Confidential Information”). Confidential Information includes without limitation Discloser’s product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions, and know-how disclosed by Discloser to Recipient, whether in writing, verbally, or otherwise, and whether prior to, on, or after, the Effective Date. Confidential Information of Secoda also includes the Secoda Services. Confidential Information of Customer includes the Customer Data.
Use. Recipient shall only use Discloser’s Confidential Information as necessary to perform its obligations under this Agreement and shall not divulge any Confidential Information to any third party without the prior written consent of Discloser, other than to its Representatives who have a “need to know” such Confidential Information. Representatives shall be bound by obligations at least as stringent as those contained herein with respect to the handling and use of Confidential Information, and Recipient shall remain responsible and liable for its Representatives acts and omissions with respect to Confidential Information. Recipient shall hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information using the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care.
Duration. Recipient’s obligations with respect to Confidential Information under this Agreement shall continue for as long as such information remains Confidential Information. Upon termination of this Agreement, or upon written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within thirty (30) days of such request or termination. Upon Discloser’s request, the Recipient will certify in writing that it has returned or destroyed all copies of the Discloser’s Confidential Information.
Exclusions. Confidential Information shall not include information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or (iv) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by Applicable Law or court order (“Compelled Disclosure”), provided Recipient, to the extent legally permitted, provides prompt notice of the Compelled Disclosure to Discloser, reasonably cooperates with Discloser, at Discloser’s request and expense, in contesting the Compelled Disclosure, and in any event only provides the amount of Confidential Information minimally necessary to comply with the Compelled Disclosure.
Injunctive Relief; Incident. Recipient acknowledges and agrees that any breach of this Section may cause irreparable harm to the Discloser, for which monetary damages may be inadequate and/or difficult to quantify. As such, Discloser shall be entitled to injunctive relief without the necessity of posting a bond. Additionally, in the event Recipient discovers any actual or suspected unauthorized access to, or dissemination or disclosure of, Confidential Information (an “Incident”), Recipient shall promptly notify Discloser and fully cooperate with Discloser to limit the damage caused by the Incident, and to remediate and resolve the Incident.
TERM AND TERMINATION
Term. This Agreement will begin on the Effective Date and continue for so long as there is at least one (1) active Order Form and/or SOW in effect, unless earlier terminated as permitted below (the “Term”). Each Order Form and SOW will have its own term length. Except as otherwise stated in an applicable Order Form, each Order Form will automatically renew for successive periods of twelve (12) months unless either Party provides written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then-current Order Form term.
Termination. This Agreement may be terminated by either Party upon thirty (30) days’ prior written notice to the other Party, where such other Party has materially breached this Agreement and such material breach remains uncured at the expiration of such period. Additionally, either Party may terminate this Agreement if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and is not discharged within ninety (90) days of filing thereof.
Effect of Termination. Immediately upon termination, (i) all Order Forms and SOWs, and rights granted for the Term will immediately terminate and Customer will immediately cease all use of the Secoda Services; (ii) each Party will promptly return or destroy the other Party’s Confidential Information then in its possession; (iii) Customer shall promptly pay all fees due through the termination date, provided that if this Agreement is terminated by Secoda for Customer’s material breach, Customer shall remain obligated to pay all fees that would have been due for the remainder of the term of each affected Order Form and SOW; and (iv) if this Agreement is terminated by Customer for Secoda’s breach, Secoda will refund any prepaid fees for Secoda Services that would have been rendered after the termination date. Any provision of this Agreement which is reasonably intended to survive termination or expiration of this Agreement shall so survive.
Return of Customer Data. Within thirty (30) days following the expiration or termination of this Agreement, Customer may request in writing that Secoda extract all then-available Customer Data from the Platform and Secoda will transfer such Customer Data in an industry-standard format to Customer within ten (10) business days of such request. Following such thirty (30) day period, Secoda shall have no further obligation to make Customer Data available to Customer, and Secoda reserves the right to destroy any such Customer Data to the extent not legally prohibited.
INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP; FEEDBACK
Secoda Intellectual Property. As between Secoda and Customer, Secoda owns all right, title, and interest in and to the Secoda Services. During the Term, Secoda grants Customer a limited, non-exclusive, worldwide, non-transferable, non-sublicensable license to access and use the Secoda Services and the Documentation solely as permitted hereunder for its internal business purposes. Customer may make a reasonable number of copies of the Documentation as are necessary to make use of the Secoda Services, provided that the Documentation remains Secoda’s Confidential Information and Customer does not remove any proprietary notices or other labels within or on the Documentation. Except as expressly stated in this Agreement, Secoda does not grant Customer any rights, including any Intellectual Property Rights, in the Secoda Services. Secoda reserves all rights not expressly granted under this Agreement.
Customer Intellectual Property. As between Customer and Secoda, Customer owns all right, title, and interest in and to the Customer Data. During the Term, Customer grants Secoda a worldwide, non-exclusive, transferable, sublicensable right and license to access, use, transmit, display, and process Customer Data, solely as necessary to provide the Secoda Services to Customer. Additionally, Customer grants Secoda a perpetual, irrevocable, worldwide, royalty-free license to use aggregated and anonymized Customer Data for any lawful purposes, provided that any such use externally does not identify Customer or any Authorized User.
Feedback. In the event Customer provides Feedback to Secoda, Customer grants Secoda a perpetual, irrevocable, fully paid up, royalty-free, transferable, sublicensable, worldwide right and license to use Feedback for any lawful purposes, without attribution to Customer. Secoda shall be the exclusive owner of all right, title, and interest in and to any improvements to Secoda’s Intellectual Property Rights as a result of Feedback. The Parties acknowledge that Feedback is voluntary and Secoda acknowledges that any Feedback is provided by Customer is on an “AS IS” basis.
FEES
Fees and Expenses. Customer shall pay all fees for the Secoda Services as set forth in the applicable Order Form and/or SOW and in accordance with terms set forth in such Order Form. Unless otherwise set forth in such Order Form, all Fees shall be invoiced annually, beginning on the Effective Date.
Payment Terms. Customer shall provide Secoda with complete and accurate billing contact information including a valid email address. If applicable, Customer shall issue a purchase order within five (5) business days from execution of an Order Form and/or SOW. Customer must notify Secoda in writing within thirty (30) days of invoice date if Customer has a good faith dispute as to any invoice. Provided Customer has notified Secoda accordingly, Customer may withhold the disputed portion of the invoice and shall pay any undisputed amounts when due. Unless otherwise expressly stated in this Agreement or in the applicable Order Form and/or SOW: (i) all payments and payment obligations to Secoda are non-cancelable and non-refundable; (ii) payments are due within thirty (30) days of the invoice date; and (iii) all payments will be made in United States dollars via electric funds transfer, as per the instructions of Secoda.
Late Payments. If Customer fails to pay any undisputed past due invoice that is not subject to a good faith dispute, Secoda may: (i) suspend the Secoda Services, after providing five (5) days’ written notice, until such amounts are paid in full; and/or (ii) charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. Customer will be responsible for all costs of collection associated with any such late payments.
Taxes. All Fees exclude any and all applicable sales, use, excise, and similar taxes (other than those on Secoda’s net income) and Customer shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If Customer is tax-exempt, it shall provide Secoda with its tax-exemption number and certificate within five (5) days of the Effective Date. In the event Customer is subject to withholding tax, Customer shall gross up its payment to Secoda such that Secoda receives the full amount listed in the applicable invoice.
REPRESENTATIONS AND WARRANTIES
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is a valid legal entity duly organized and in good standing under the Applicable Law of the jurisdiction under which it was created; (ii) it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; (iii) that the performance of such obligations and duties does not conflict with or violate any other agreement to which it is a party; and (iv) it will comply with all Applicable Law in its performance of its obligations under this Agreement.
Secoda Representations and Warranties. Additionally, Secoda represents and warrants to Customer that: (i) the Platform will materially comply with the Documentation, (ii) the functionality of the Platform will not be materially degraded during the Term, and (iii) the Professional Services will be provided in accordance with industry standards and in a professional and workmanlike manner.
Customer Representations and Warranties. Additionally, Customer represents and warrants to Secoda that it owns, or otherwise has all necessary rights, permissions, consents, and licenses with respect to, the Customer Data.
Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE SECODA SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND SECODA EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SECODA SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE.
INDEMNIFICATION
Secoda Indemnification. Secoda will indemnify, defend, and hold harmless Customer from and against any Losses as a result of any Claim brought by a third party alleging: (i) Secoda’s gross negligence, willful misconduct, or fraud; and/or (ii) that the Platform, when used by Customer as permitted hereunder, infringes, misappropriates, or otherwise violates such third party’s Intellectual Property Rights. In the event the Platform is enjoined, or in Secoda’s reasonable opinion is likely to be enjoined, Secoda shall do one of the following, in its sole discretion and expense: (x) obtain a right or license for Customer to continue using the Platform; (y) modify or replace the Platform to make it non-infringing but functionally equivalent; or (z) terminate the affected Platform and provide Customer with a pro-rata refund of any prepaid unused fees as of the termination date. The foregoing states Secoda’s sole liability and Customer’s exclusive remedy for any Claim relating to Intellectual Property Rights.
Customer Indemnification. Customer will indemnify, defend, and hold harmless Secoda from and against any Losses as a result of any Claim brought by a third party: (i) for any of Customer’s gross negligence, willful misconduct, or fraud; (ii) related to the use of Third Party; and/or (iii) alleging that the Customer Data, when used by Secoda as permitted hereunder, infringes, violates, or otherwise misappropriates such third party’s Intellectual Property Rights or was collected and/or used in violation of Applicable Law.
Procedure. The foregoing indemnification obligations are conditioned on the following: (i) Indemnified Party providing prompt written notice of the Claim to the Indemnifying Party (provided that failure to provide prompt notice will not relieve the Indemnifying Party of its indemnity obligations unless such failure materially prejudices the Indemnifying Party with respect to its defense of the Claim); (ii) Indemnified Party giving Indemnifying Party sole control of the defense and settlement of the Claim, using counsel of its choosing (provided that the Indemnifying Party shall not settle any Claim without Indemnified Party’s prior written consent, where such settlement imposes any liability upon, or constitutes an admission by, the Indemnified Party); and (iii) the Indemnified Party providing reasonable cooperation to the Indemnifying Party, at the Indemnifying Party’s request and expense. The Indemnified Party may participate in the defense of the Claim using counsel of its choosing at its own cost and expense.
LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 9, OR CUSTOMER’S BREACH OF THE RESTRICTIONS IN SECTION 3.2: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION THOSE FOR LOSS OF USE, DATA, GOODWILL, PROFITS, OR REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE GOODS, EVEN WHERE SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN WHERE ALL AVAILABLE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE; AND (II) EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00) OR AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING SHALL NOT APPLY TO FEES DUE HEREUNDER BY CUSTOMER TO SECODA THAT ARE NOT THE SUBJECT OF A GOOD FAITH DISPUTE.
GENERAL
This Agreement, including any attachments, exhibits, or references herein, as well as all Orders and SOWs between the Parties, represents the entire understanding between the Parties with respect to the subject matter hereto, and supersedes any other prior agreements or understandings (whether oral or written) between the Parties regarding same. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both Parties. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by Applicable Law. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed under, the laws of the Province of Ontario and those of Canada, without regard to any of its conflict of laws principles. Any claim, suit, or cause of action arising out of or relating to this Agreement shall only be brought in the provincial or federal courts located in Toronto, Ontario, and the Parties agree to the exclusive personal jurisdiction of such courts. The Parties hereby expressly waive their right to a trial by jury. The prevailing Party shall be entitled to recover its reasonable costs and expenses, including attorney’s fees. The Parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement. Notwithstanding anything to the contrary, each Party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Confidential Information or its Intellectual Property Rights.
All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions.
Secoda may identify Customer as a Secoda customer, and use Customer’s name and/or logo in its marketing materials and on its website. Secoda will comply with any brand usage guidelines provided by Customer to Secoda in advance. Any other uses than those permitted in this Section 11.4 require Customer’s prior consent.
Neither Party shall be liable for any prevention of, or delay in, performance hereunder due to any circumstances beyond the reasonable control of such Party, including without limitation, general labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty (collectively, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the affected Party shall use commercially reasonable efforts to minimize the impact and to overcome such Force Majeure Event as soon as reasonably practicable. The period of performance hereunder will be extended for a period equal to the duration of the Force Majeure Event.
Neither Party shall assign or delegate its obligations under this Agreement, whether in whole or in part, without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign this Agreement, in its entirety, upon notice to the other Party, but without requiring the other Party’s consent, where such assignment is to: (i) an Affiliate; or (ii) in connection with a corporate restructuring, reorganization, or merger or sale involving all or substantially all of such Party’s assets. Any attempted assignment in contravention of this provision shall be invalid. This Agreement shall be binding upon, and inure to the benefit of, each Party and their respective heirs, successors, and permitted assigns.
Notices required to be provided under this Agreement shall be in writing and delivered in person, sent by email to the email address on file with the sending Party, or delivered by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt, provided that in the case of notice by email it shall be deemed given five (5) minutes after sending, so long as a “message undeliverable” automated response is not received by the sender. Notices to Secoda shall be sent by email to legal@secoda.co.
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