Awesome People Leaders Master Services & Subscription Agreement

 

This master services and subscription agreement is effective as of the date set forth in the invoice or State of Work to which this Master Services and Subscription Agreement is linked or attached (such date, the “Effective Date” and the invoice or order form, the “Order Form”), and is between DonnaKyle Inc. d/b/a Awesome People Leaders (“Provider”), and the Customer set forth in the invoice or Statement of Work (“Customer”).

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Provider is the provider of certain services, including a software-as-a-service web application (the “Application”), and certain related consulting services complementary to the Application;

 

The Application, along with any additional services offered by Provider, including all documentation, instructions, manuals, implementation assistance, support, and any consulting services, will be referred to as “Services” herein;

 

The Customer desires to engage the Provider for the Services, subject to the terms and conditions provided in this Agreement and any applicable Order Form; and

 

References herein to the “MSSA” refer to 1-13 of this Master Services and Subscription Agreement, and references herein to the “Agreement” mean collectively the MSSA, any Order Forms entered into, and any schedules and/or exhibits hereto or thereto.

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The parties therefore agree as follows:

1.                   Services.

1.1.             Generally. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, Provider hereby grants Customer, via its Authorized Users, a non-exclusive, non-transferable right to access and use the Services during the Term, solely for Customer’s internal use in accordance with the terms and conditions herein. The specific Services to be provided by Provider to Customer may be described in one or more Order Forms, provided that any Services received by Customer hereunder, whether or not designated in an Order Form, are provided subject to this Agreement.

1.2.             Authorized Users. “Authorized Users” means Customer's employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement. The total number of Authorized Users who may access the Services may be provided in an Order Form. Customer is responsible for ensuring that Authorized Users are aware of the terms of this Agreement including the restrictions on use of the Services, Provider IP, and Provider Confidential Information. The actions or inactions of any Authorized User shall be considered the actions of Customer as if taken by Customer directly. Authorized Users should be made aware by Customer that the Services are provided to and for the benefit of the Customer, and that any information shared to Provider by an Authorized User engaging with the Services may be provided to Customer.

1.3.             Restrictions on Use. Customer shall not, and shall not permit any Authorized User to, access or use the Services except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Customer shall not: (i) copy, modify, or create derivative works of the Services; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services; or (iv) bypass or breach any security device or protection used by the Services. Customer agrees that is not accessing the Services for purposes of competitive analysis of the Services, or for the purpose of development of a competing software service or product.

2.                   Order Forms. The parties may enter into more than one Order Form under this Agreement, or may mutually agree to amend any existing Order Form, including but not limited to for purposes of increasing the number of Authorized Users. Each Order Form or amendment thereto may be subject to increased Fees as will be set forth therein. Each Order Form is incorporated into and made a part of the Agreement upon execution by the parties hereto. This MSSA will control in the event of a conflict between the MSSA and the Order Form, provided that the Order Form may supersede a provision of this MSSA if the Order Form specifically includes language to effect the same.

3.                   Changes. Provider reserves the right, in its sole discretion, to make changes to the Services that it deems necessary or useful to comply with applicable laws and regulations, or to maintain or enhance: (i) the quality or delivery of Provider's services to its customers; (ii) the competitive strength of or market for Provider's services; or (iii) the Services' cost efficiency or performance. Customer agrees to use the latest version of the Application or any other aspect of the Services that is offered by Provider. Notwithstanding anything to the contrary in this paragraph, Customer’s consent will be obtained in advance of Provider making any changes to the Services that would substantively reduce the benefit of the Services provided to Customer.  

4.                   Fees and Payment.

4.1.             In consideration of the Services, Customer will pay to Provider the fees and charges provided in the applicable Order Form (the “Fees”). If the Order Form provides for a recurring fee (for example, monthly recurring charges), Customer agrees to pay such recurring fees without further invoice or action by Provider. All Fees and other amounts payable hereunder are exclusive of taxes and similar assessments, and Customer shall pay any applicable taxes and similar assessments on the Services. Unless otherwise provided in an Order Form, recurring Fees will be due in advance of each period for which Fees are due; if Fees are invoiced by Provider, Customer shall pay each such invoice within 15 days of receipt from Provider. 

4.2.              All Fees are nonrefundable. Provider may suspend Services during any period where Fees remain unpaid, without terminating this Agreement. Any Fees due hereunder which are not timely paid will incur interest at a rate of 1.5% per month.

5.                   Term and Termination.

5.1.             This MSSA will commence on the date stated in the first Order Form executed hereunder. Order Forms may be entered into under this MSSA for three years from the date of the first Order Form executed hereunder. The Services to be provided under each Order Form will be provided for the term set forth in that Order Form, or if no term is provided thereunder, the term of such Order Form shall be one year from the date of the Order Form. “Term” as used herein refers to the term this MSSA, except where context indicates a reference to the term of a specific Order Form.  

5.2.             Either party may terminate this MSSA on notice to the other party when no Order Form is outstanding and has not been outstanding for a period of six months (provided that an Order Form may provide that this Agreement will terminate at the conclusion of the Order Form). Further, Either party may terminate this MSSA and all Order Forms then outstanding hereunder, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach. Termination by Provider due to Customer’s breach of this Agreement will accelerate any Fees which would have come due under outstanding Order Forms and all such Fees will be due within 30 days after the effective date of termination. For the avoidance of doubt, this Agreement is not terminable for convenience.

5.3.             Provider may suspend, terminate, or otherwise deny any Authorized User's access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if Provider believes, in its good faith and sole discretion, that such Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement.

6.                   Confidential Information.

6.1.             During the course of this Agreement, one party may obtain or receive information (the receiving party in each case, the “Recipient”) about the other party (the disclosing party in each case, the “Discloser”), which is either marked confidential or proprietary, or which should be understood by a reasonable person to be confidential based on the circumstances of its disclosure or the contents thereof, and whether the same is disclosed in writing (including in electronic form), orally, or by inspection of tangible objects (collectively, “Confidential Information”). Confidential Information includes but is not limited to, scientific or technical information, patentable materials, software and software code, designs, processes, procedures, formulas, improvements, methodologies, financial information, pricing information, projections, operations, sales estimates, business plans and performance results, plans for products and services, supplier lists and/or contact persons, and any information which constitutes as a trade secret under applicable law.

6.2.             The term “Confidential Information” does not include any information which at the time of disclosure is in the public domain, is already known by Recipient at the time of disclosure as demonstrated by Recipient's records, is rightfully obtained by Recipient on a non-confidential basis from a third party, or which was independently developed by Recipient without reference to the Confidential Information of Discloser.

6.3.             The Recipient shall not use for its own benefit, and shall not disclose, or authorize any third party to use or disclose, any Confidential Information, except as may be specifically permitted hereunder or necessary to fulfill obligations under this Agreement. Notwithstanding the foregoing, a Recipient may disclose Confidential Information to the limited extent required in order to comply with applicable law, or the order of a court or other governmental body, provided that it first provides given written notice to the Discloser and makes a reasonable effort to obtain a protective order where applicable.

7.                   Data Collection and Use.  

7.1.             Definitions. 

A.                  “Customer Data” means Customer’s Confidential Information that Customer or any Authorized User uploads to the Application or otherwise provides to Provider for use in connection with the Services, and includes PII that Customer or an Authorized User makes available to Provider.

B.                  “Usage Data” means data and information related to the access and use of the Services, including but not limited to statistical and performance information related to the provision and operation of the Services, and analyses related to the performance, functionality, and improvement of the Application and how the Application is used and accessed by Customer and Authorized Users.  

C.                   “Personally Identifiable Information” or “PII” means any data that identifies, describes, or is reasonably capable of being associated with, a particular person.

D.                  “De-identified Information” means information that is de-identified, aggregated, and/or anonymized, such that the same is no longer reasonably capable of identifying or being linked to Customer or an Authorized User.

7.2.             As between Provider and Customer, Customer retains ownership of the Customer Data, and grants Provider a license to the same for the purpose of providing the Services. To the extent that Customer Data includes Personally Identifiable Information, Provider is hereby considered the "service provider" or "processor" (or similar term) under relevant data privacy laws and regulations, including Cal. Civ. Code §§ 1798.100 et. seq. and similar laws of any state, as to any such Personally Identifiable Information, and Customer is hereby considered the “controller” or “owner” (or similar term) as to any such Personally Identifiable Information. Customer represents and warrants it has the right to disclose and provide the Customer Data, including PII of Authorized Users or other of its personnel, to Provider for purposes of obtaining the Services.

7.3.             Provider may derive De-Identified Information from any data or information obtained hereunder, including through the Customer’s use of the Application. Provider is the owner of all Usage Data and De-Identified Information, and may use the same for any purpose deemed appropriate and lawful, consistent with Provider’s ownership of the same, including but not limited to for purposes of: (i) improving and updating the services it provides to its customers generally; (ii) improving its technologies and algorithms; (iii) developing other offerings, including additional products and services, including selling De-Identified Information and offering thought leadership regarding Provider’s industry or technology which is derived in whole or in part from De-Identified Information; and (iv) demonstrating to customers and potential customers the potential capabilities of the Application, including via case studies on Provider’s website, marketing materials, or otherwise. For the avoidance of doubt, De-Identified Information will not be disclosed in any manner which would constitute a breach of Section 7 (“Confidential Information”) of this MSSA.   

7.4.             Provider utilizes artificial intelligence to perform portions of the Services and  Customer Data is transmitted, via secured API connections, to third-party artificial intelligence platforms (“AI Platforms”) for such purposes, but only to the extent that the applicable terms of use of each AI Platform provide that such AI Platform will not retain the Customer Data uploaded. AI Platforms are intended to engage with Customer Data only to the extent specifically requested by Provider’s prompts.

8.                   Integrations.

8.1.             The Application may integrate, whether via API, external linking, or otherwise, certain third-party services which enhance the Application or which are subcontracted services for use in connection with the Application (collectively, “Third-Party Integrations”). For example, Third-Party Integrations may include but are not limited to, Teachable.com and Circle.so.  Further, Depending on the Services that Customer purchases under an Order Form, Provider may offer the option for Authorized Users to opt into certain ancillary functionalities of the Platform, including certain plug-ins (collectively, “Plug-Ins”), which may be offered directly through the Application or may interact with other applications that the Authorized User has installed (such as plug-ins which may interact with Outlook or other Microsoft programs). Provider reserves the right to replace any Third-Party Integrations or Plug-Ins with other programs offering substantially similar capabilities from time to time. Provider is not responsible for changes to features offered within any Third-Party Integrations, or Plug-Ins which are not developed by Provider, nor is Provider responsible for a third party ceasing to offer any such Third-Party Integration or Plug-In.

8.2.             Customer consents to Authorized Users opting into any Third-Party Integrations and/or Plug-Ins that Provider may offer from time to time, unless the applicable Order Form limits offering one or more Third-Party Integrations and/or Plug-Ins. To the extent any Plug-Ins would allow the Provider to access certain Confidential Information of the Customer (for example, through automated scanning of email correspondence) Customer hereby consents to the same and the Authorized User’s use of the Plug-In at the Authorized User’s option, subject to the terms and conditions herein related to the protection and use of Customer Confidential Information.

8.3.             When an Authorized User navigates to or accesses any Third-Party Integrations or Plug-Ins, an Authorized User may be required to consent to terms of use and/or privacy policies which may be different than the terms contained in this Agreement. It is the responsibility of each Authorized User to review such terms; if an Authorized User does not consent to the terms of any Third-Party Integration, the Authorized User should not access that Third-Party Integration. Customer agrees that the refusal of an Authorized User to agree to third-party terms and conditions, and thus potentially not access all aspects of the offered Services, will not affect the Fees due hereunder or require Provider to provide any alternative.  

9.                   Intellectual Property.

9.1.             Provider IP. As between Provider and Customer, Provider holds all right, title, and interest to the Services and any and all software, inventions, ideas, patentable material, source code and object code, designs, devices, methods, documentation, technology, trade secrets, concepts, methodologies, goodwill, trademarks, service marks, trade names, and general intangibles incorporated within the Services or otherwise provided by Provider in connection with the Services (including through any Plug-In or other integration offered directly by Provider), as well as all intellectual property rights in and to the foregoing, whether registered or unregistered, in any part of the world  (collectively, the “Provider IP”). This Agreement does not convey any rights to the Provider IP and does not grant upon Customer any rights to use such Provider IP in any manner other than described herein.  

9.2.             Third-Party Materials. The rights in and to any Third-Party Integrations, AI Platforms, Plug-ins, and any other third-party services which may be incorporated into or offered in connection with the Services (all aspects of the foregoing, collectively, “Third-Party Materials”), are held solely by the third parties who offer or publish the same and/or their licensors, and are offered pursuant to the terms of their own licenses or other terms of use. Nothing herein shall be interpreted to grant any rights to third-party materials except a license to use the same in connection with the Services as intended.

9.3.             Customizations; Feedback. Any and all customizations and/or improvements to the Application or Services generally, including if and as requested by Customer, and all intellectual property rights thereto, will be the sole property of Provider and will constitute Provider IP. Customer hereby assigns any and all rights it may have or obtain to the same, and disclaims any rights to the same. This is not a “work made for hire” agreement. If Customer sends or transmits any communications or materials to Provider suggesting or recommending changes to the Application or Services generally, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like, Provider is free to use the same for any purpose, and Customer hereby assigns any intellectual property rights in the same to Provider.

9.4.             Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.

9.5.             Alleged Infringement. If any of the Services or any component or feature thereof is alleged to or ruled to infringe or otherwise violate the rights of any third party, Provider shall have the option, at Provider's sole cost and expense, to either procure for Customer the right to continue to access and use the Services, or to modify or replace all components, features, and operations of the Services that actually, or are likely or alleged to, infringe or otherwise violate the rights of any third party. If neither of such options is reasonably available, then Provider may direct Customer to cease any use of any allegedly infringing or actually infringing materials, provided that Provider shall refund to Customer any prepaid fees for the portions of the Services that have not been provided. The remedies provided in this paragraph shall be Customer’s sole remedies in the event that an alleged or actual infringement of intellectual property rights of a third party affects or is expected to affect Customer’s continued use of the Services.

10.               Disclaimer of Warranties. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SERVICES, THE SUITABILITY OF THE INFORMATION CONTAINED ON OR RECEIVED THROUGH USE OF THE SERVICES, OR ANY RESULTS RECEIVED THROUGH OR THAT MAY BE ACHIEVED THROUGH THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, PROVIDER IS NOT RESPONSIBLE FOR THE POLICIES OR PRACTICES OF THIRD-PARTIES WHO MAY OFFER CERTAIN THIRD-PARTY MATERIALS WHICH ARE OBTAINED OR ACCESSED THROUGH OR IN CONNECTION WITH THE SERVICES, AND PROVIDER MAKES NO REPRESENTATION OR WARRANTY REGARDING HOW A THIRD PARTY MAY TREAT OR USE CUSTOMER CONFIDENTIAL INFORMATION, PII, OR OTHER INFORMATION OBTAINED FROM A CUSTOMER OR AUTHORIZED USER.  

11.               Limitations of Liability. THE MAXIMUM AMOUNT OF DAMAGES THAT THE PROVIDER, INCLUDING ITS AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (each, a “Provider Party” and collectively the “Provider Parties") MAY BE LIABLE FOR ARISING FROM THIS AGREEMENT OR THE PROVISION OF THE SERVICES WILL NOT EXCEED THE TOTAL AMOUNT PAID TO PROVIDER BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ADDITIONALLY, IN NO EVENT WILL ANY PROVIDER PARTY BE LIABLE TO CUSTOMER OR ANY AUTHORIZED USER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING.

12.               Indemnification.

12.1.         Provider shall indemnify, hold harmless, and at Customer’s option, defend, Customer from all third-party claims, losses, damages, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder (collectively, “Losses”) that arise from (i) a breach of this Agreement by Provider; (ii) Provider’s gross negligence or willful misconduct; or (iii) a claim that Customer’s use of the Application in the manner intended by Provider infringes the rights of a third party.  

12.2.         Customer shall indemnify, hold harmless, and at Provider’s option, defend, Provider Parties from all third-party Losses that arise from (i) a breach of this Agreement by Customer; (ii) Customer’s use of the Services or Third-Party Materials in any manner not authorized by this Agreement; or (iii) a claim that Provider’s use of the Customer Confidential Information or the PII of any Authorized User in connection with the Services infringes the rights of a third party.  

13.               Miscellaneous.

13.1.         Survival. Sections 4 through 13 and any other section which by its terms should survive, will survive any termination of this Agreement.

13.2.         Relationships. The parties acknowledge and agree that no partnership, joint employer, or agency relationship is intended to or will be created by this Agreement.

13.3.         Entire Agreement. This Agreement, and any attachments or exhibits, contains the entire agreement of the parties relating to the subject matter hereof. No waiver or modification of this agreement will be valid unless in writing and signed by the party agreeing to such waiver or modification.

13.4.         Headings. Any headings or other titles used herein are made for the purposes of convenience only and will not alter or modify the meaning of any provisions contained herein.

13.5.         Assignment. Customer may not assign, license, sublicense, or transfer this Agreement or any rights of Customer herein, including access to the Application to any third party, and the purported transfer of any such rights will be invalid without the prior written consent of Provider. This Agreement inures to the benefit of and will be binding upon the parties hereto and their respective heirs, legatees, administrators, executors, legal representative, successors and permitted assigns.

13.6.         Governing Law. This agreement and all matters concerning its interpretation, performance, or enforcement will be governed in accordance with the laws of the State of Indiana. Any litigation arising out of the Agreement or the relationship of the parties hereto must be brought in a court of competent jurisdiction in Marion County, Indiana.  

13.7.         Severability. In the event any of the provisions of this agreement shall be held to be invalid by any court of competent jurisdiction, the same shall be deemed severable, and as never having been contained herein, and this agreement shall then be construed and enforced in accordance with the remaining provisions hereof.

13.8.         Remedies and Attorneys’ Fees. If either party fails or refuses to comply with the terms of this agreement, then the non-breaching party may seek any remedy available at law or in equity, and will be entitled to recover court costs, reasonable attorneys' fees, and other legal expense from the non-prevailing party in addition to any other remedy.

13.9.         Notice. Any notice required or permitted hereunder shall be deemed effective when sent by electronic mail, or by certified mail, registered mail, or a signature confirmation service provided by the United States Postal Service, postage prepaid, or when sent by an overnight carrier to the regular business address set forth in an Order Form or such other address as either party may from time to time specify by notice hereunder. If notice is provided by electronic mail, the party sending the notice has the burden of demonstrating that the notice was received. This burden may be met by any written acknowledgment or electronic reply to the electronic message from the party receiving notice, excluding any automatic or computer-generated responses.

13.10.      Counterpart and Electronic Signatures. The invoice or Statement of work Order Form to which this MSSA is attached or referenced may be executed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Scanned images of signatures and other electronic signatures will be considered equivalent to original signatures.