Effective as of April 1, 2020
This Master Services Agreement (“Agreement”) is made and entered into between Gaas Holdings, LLC d/b/a EAG (“EAG"), and the entity or person signing up, placing an order or accessing the Service (“Customer”). This Agreement consists of the terms and conditions set forth below and any EAG ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms“). If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “Customer” reference your company.
The “Effective Date“ of this Agreement is the date which is the date of Customer’s initial access to the Service through any online provisioning, registration or order process. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
You acknowledge and agree that EAG may modify the terms and conditions of this Agreement at any time in accordance with Article 8 (Modifications to Agreement).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
A. EAG is engaged in providing various data services, including, without limitation, data exploration, manipulation, cleaning and imputation, and modeling; and
B. Customer desires to obtain certain data services from EAG as more fully set forth herein; and
C. EAG is hereby willing to provide to Customer such services on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows:
1.1 “Conclusions” means the non-personally identifiable, aggregated, processed, transformed, analyzed metadata generated by EAG as a result of Data Processing as well as all conclusions and results achieved by EAG through Data Processing of the Customer Data.
1.2 “Confidential Information” means any confidential information of a Party relating to any designs, know-how, inventions, technical data, ideas, uses, processes, methods, formulae, compositions, compounds, research and development activities, work in process, or any scientific, engineering, manufacturing, marketing, business plan, financial or personnel matter relating to the disclosing Party, its present or future products, sales, suppliers, customers, employees, investors or business, whether in oral, written, graphic or electronic form (which is marked confidential or acknowledged as being confidential prior to disclosure). If the Confidential Information is disclosed orally or visually, it shall be identified as such at the time of disclosure and confirmed in writing by the disclosing Party within thirty (30) days of disclosure. Confidential Information shall also include any other information in oral, written, graphic or electronic form, which given the circumstances surrounding such disclosure would be considered confidential.
1.3 “Customer Data” means the unmodified data, such as but not limited to product data, consumer data, and order data maintained by Customer.
1.4 Data Processing” means anonymizing, aggregating, processing and analyzing Customer Data incident to the Services.
1.5 Order Form is defined above
1.6 “Deliverables” means the tangible Deliverables provided by EAG.
1.7 “Service“ means the specific EAG data services, hosted or otherwise; specified on an Order Form, including, without limitation, data exploration, manipulation, cleaning and imputation, and modeling, EAG dashboard and any related API(s).
1.8 “Intellectual Property Rights” means all United States and worldwide trademarks, service marks, trade dress, logos, copyrights, rights of authorship, inventions, patents, rights of inventorship, moral rights, rights of publicity and privacy, trade secrets, rights under unfair competition and unfair trade practices laws, and all other intellectual and industrial property rights related thereto.
1.10 “Service Fees” means the fees payable by Customer to EAG for the Services, as more fully set forth in the applicable Order Form.
1.11 “EAGl Materials” means products, materials, tools, methodologies, ideas, concepts, know-how, software, spreadsheets, templates, techniques or other proprietary materials or information which are owned or licensed by EAG or which are developed incident to the Services by EAG, including, without limitation, the Conclusions.
Access to Services
2.2 Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) use or attempt to use the Service for competitive analysis or benchmarking; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to EAG); (e) copy, modify or create any derivative work of the Service or any EAG Materials; (f) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or (g) publicly disseminate information regarding the performance of the Service.
2.5 All Services performed for and applicable Deliverables submitted to the Customer, if applicable, shall be deemed accepted upon performance or, in the case of Deliverables submitted to the Customer, upon such delivery of Deliverables to Customer. Customer shall be responsible for its use of any Deliverables provided by EAG under this Agreement, and for ensuring that the Deliverables meet Customer’s requirements.
3.1 EAG makes available the Service through a trial plans (“Trial Plans“) and paid plans (“Paid Plans“). Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Service. Customer’s permitted scope of use – such as features available, permitted number of monthly model refreshes and other usage limits – depends on the plan that Customer selects and will be specified on the applicable Order Form.
3.2 Paid Plans are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term“). Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).
3.3 (a) Trial Plans. For Trial Plans, Customer may use the Service in accordance with this Agreement for the limited trial period designated on the Order Form or such other period as may be specified by EAG (the “Trial Period“). Trial Plans are permitted solely for Customer’s use to determine whether to purchase a Paid Plan. If Customer does not upgrade from a Trial Plan to a Paid Plan at the end of the Trial Period, then Customer’s access to the Service may be limited or suspended (to be determined at EAG’s sole discretion) until such time as Customer terminates this Agreement or converts to a Paid Plan.
3.4 (b) Special Terms. Trial Plans may not include all features or functionality offered as part of Paid Plans, and EAG reserves the right to add or subtract any features or functionality at any time for such plans. EAG has the right to suspend or terminate a Trial Plan at any time for any reason.
3.5 Beta Releases. From time to time, EAG may grant Customer access to “alpha”, “beta”, or other early-stage products (“Beta Releases“). While EAG may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH EAG WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK. EAG makes no promises that future versions of a Beta Release will be released. EAG may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in EAG’s sole discretion, without liability.
4.1 Title to the Customer Confidential Information and, as between the Parties, to the Customer Data, shall always remain with Customer, and EAG shall not acquire any interest therein except the limited right to use the same pursuant to this Agreement as required to perform the Services. EAG acknowledges that the grant of access to the Customer Data is not a sale, nor an offer to sell the Customer Data in the future. EAG acknowledges that the Customer Data is proprietary to Customer. EAG shall use the Customer Data in compliance with all applicable national, state and local laws and regulations.
4.2 Customer hereby grants EAG a non-exclusive paid-up right and license, to use, copy, modify and prepare derivative works of Customer Confidential Information, as necessary to perform the Services hereunder.
4.3 Notwithstanding anything else to the contrary, EAG shall not directly or indirectly: (a) permit the use of the Customer Data by any users other than its employees that have a need to use the Customer Data in order for EAG to perform the Services; (b) copy any of the Customer Data through any means; (c) track or attempt to track or identify any individual or otherwise copy or attempt to copy any personally identifiable information; (d) sell, license, transfer, lease, give away, distribute or otherwise dispose of any of the Customer Data; and/or (e) grant any sublicenses or any other subsidiary uses of the Customer Data.
4.4 EAG agrees to report to Customer any unauthorized use or disclosure of Customer Data, including, any personally identifiable information, of which it becomes aware within one (1) calendar day of EAG’s discovery. Such notice shall include the identification of each individual whose personally identifiable information has been, or is reasonably believed by EAG to have been, accessed, acquired, or disclosed without authority.
4.5 In the event of EAG’s use or disclosure of Customer Data in violation of applicable laws, EAG bears the burden of demonstrating that notice as required under this Section 4.5 was made, including evidence demonstrating the necessity of any delay, or that the use or disclosure was authorized and within the scope of this Agreement.
4.6 If EAG Materials is made available to Customer as part of a Services, it will be made available in an “AS IS” condition and without express or implied warranties of any kind.
4.7 In performing the Services under this Agreement, EAG may use certain EAG Materials. Customer hereby acknowledges and agrees that, notwithstanding anything else to the contrary, as between Customer and EAG, title to the EAG Materials, including, the Conclusions, shall always remain with EAG, and that Customer shall not acquire any interest therein. For the avoidance of doubt, the parties agree that the Conclusions are separate and apart from the Customer Data and shall not be deemed to be Customer Data. The parties agree that EAG has the right to provide services to other third parties, and nothing in this Agreement shall be interpreted to limit EAG’s rights to use the EAG Materials with respect to any such other engagements.
4.8 The parties agree that during the term of this Agreement, each Party may disclose to the other Confidential Information. Each Party agrees not to disclose, copy, modify, distribute or otherwise transfer the other Party’s Confidential Information, or any part thereof, to any other person or entity at any time, except as specifically permitted by this Agreement. Each Party has the right to disclose the Confidential Information of the other Party only to its employees who have a specific need to know in order to perform that Party’s obligations hereunder, but each Party shall be responsible for all of its employees’ actions with respect to the other Party’s Confidential Information. Each Party shall use the other Party’s Confidential Information only to fulfill its obligations hereunder, and not for any other purpose. Upon request, each Party shall immediately return to the other Party the originals and all copies of any Confidential Information of the other Party. The obligations and restrictions set forth in this Section 4.8 shall not apply to any Confidential Information that falls within any of the following exceptions, provided the receiving Party produces credible written evidence to establish that such information:
(a) is or becomes part of the public domain without breach of this Agreement by the receiving Party;
(b) is lawfully in the possession of a receiving Party prior to receiving it from the disclosing Party;
(c) is independently developed by or for a receiving Party completely apart from the disclosures hereunder;
(d) is received from a third party who lawfully acquires such information without restriction, and without breach of this Agreement by a receiving Party; and/or
(e) is released pursuant to a binding court order or government regulation, provided that the receiving Party delivers a copy of such order or action to the other Party and cooperates with the other Party if it elects to contest such disclosure.
5.1 All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Paid Plans, Customer will pay all fees at the end of the month and (ii) for annual Paid Plans, Customer will pay all fees within thirty (30) days of invoice. Except as expressly set forth in Article 8 (Modifications to Agreement), all fees are non-refundable. EAG reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. 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 EAG. 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.
5.2 EAG reserves the right to suspend Services if any payment due to EAG is not received in full by the applicable due date.
Term and Termination
6.1 This Agreement is effective as of the Effective Date and will continue until terminated.
6.2 This Agreement shall automatically terminate without notice upon the occurrence of any of the following: (i) the failure by Customer to pay any amount due hereunder by the due date therefor, and failure to cure such breach within thirty (30) days after EAG’s written notice; (ii) the cessation of business by Customer; or (iii) Customer makes an assignment of Customer’s business for the benefit of creditors, a petition in bankruptcy is filed by or against Customer, a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of Customer’s property, or Customer is adjudicated bankrupt.
6.3 All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each party at law, equity or otherwise.
Indemnification, Disclaimer and Limitations
7.1 EAG shall indemnify, defend and hold harmless the Customer from and against any and all losses, expense, damage or injury (including, without limitation, all costs and reasonable attorneys’ fees) that the Customer may sustain as a result of, or arising out of any gross negligence or willful misconduct by EAG.
7.2 ALL CUSTOMER DATA PROVIDED PURSUANT HERETO ARE SUPPLIED TO EAG “AS IS,” WITH NO WARRANTIES, EXPRESS OR IMPLIED, AND CUSTOMER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NO INFRINGEMENT.
7.3 EAG DOES NOT MAKE ANY WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, CONCERNING SERVICES AND DELIVERABLES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, WARRANTIES OF MERCHANTABILITY, OR OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PURPOSE, PARTICULARLY, SPECIFIC OR OTHERWISE.
7.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), RELATING TO THIS AGREEMENT, THE SERVICES, THE BREACH THEREOF, THE USE OR INABILITY TO USE ANY DELIVERABLES, THE RESULTS GENERATED FROM THE USE OF DELIVERABLES, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF SUCH PARTY HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, EAG’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN NO CIRCUMSTANCE EXCEED THE MAINTENANCE FEE PAID BY CUSTOMER FOR THE THEN CURRENT MAINTENANCE PERIOD.
8.1 EAG may modify the terms and conditions of this Agreement (including Service pricing and plans) from time to time, with notice given to Customer by email or through the Service. If Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate this Agreement and cease using the Service. If Customer has a Paid Plan, Customer must notify EAG within thirty (30) days of notice of the modifications that Customer does not agree to such changes, and EAG (at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the Service, and in any event continued use of the Service after the modifications take effect constitutes Customer’s acceptance of the modifications.
9.1 This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California.
9.2 The relationship between EAG and Customer is only that of independent contractors. Neither party is the agent or legal representative of the other party, and neither party has the right or authority to bind the other party in any way. Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership or joint venture between EAG and Customer.
9.3 This Agreement, together with all Schedules which will be attached hereto, from time to time following mutual execution thereof, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.
9.4 No modification, variation or amendment of this Agreement shall be effective without the written consent of both parties hereto. A failure of either party to this Agreement to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of the same or any other term or condition hereof.
9.5 This Agreement and all of the terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights or obligations. hereunder without the prior written consent of the other party, except that Customer or EAG may otherwise assign its respective rights and transfer its respective duties to any affiliate or any assignee of all or substantially all of its business (or that portion thereof to which this Agreement relates) or in the event of its merger or consolidation or similar transaction.
9.6 In the event that any one or more provisions of this Agreement shall for any reason be held by any tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and each invalid, illegal or unenforceable provision shall be treated by the tribunal as modified to the least extent necessary to rectify its invalidity, illegality or unenforceability and shall be enforced as so modified.
9.7 All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing, or email and shall be deemed given to a party if delivered by registered or certified mail, postage prepaid, return receipt requested, or by overnight delivery by a nationally-recognized courier, to the address set forth above or to such other address or person as either party may from time to time designate to the other in writing or by email. Any such notice or other communication shall be deemed to be given five (5) days after its being deposited in the United States mail, or one (1) day after being deposited with a nationally recognized courier for overnight delivery.
9.8 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument and all of which together shall constitute a single agreement.