This Master Services Agreement applies to Customer’s use of the Services offered by Guide that are listed in one or more Sales Orders. This Master Services Agreement and all executed Sales Orders, including any incorporated attachments, addenda and exhibits, collectively constitute the “Agreement.” Capitalized terms used in this Agreement and not defined in context will have the meanings set forth in Section 2 (Definitions) below or in the Sales Order.
“Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with another entity where control means the direct or indirect ownership of 50% or more of the voting power or equity in an entity or de facto control by an entity of another entity’s decision making.
“Confidential Information” means any information or data disclosed by either party marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential considering the nature of the information and the circumstances of disclosure. However, “Confidential Information” does not include any information which (a) is in the public domain through no fault of the receiving party; (b) was known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is or was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Content” means configuration files, SQL queries, commands, metadata and descriptions that Customer transmits through the Services and the results generated through Customer’s use of the Services.
“Documentation” means end user guides, help materials and other reference materials related to the Services that Guide makes generally available to its customers through the Services.
“Fees” means the fees Customer agrees to pay for access and use of the Services during the Subscription Term.
“Sales Order” means Guide sales order form, signed by both parties that sets forth the applicable Services, Fees and Subscription Term.
“Services” are comprised of a binary code provided by Guide which Customer installs and runs on Customer’s computers and Guide’s cloud-based shared data interface and platform-as-a-service offering, including related programs, functions and services provided by Guide to Customer (including, as applicable, Guide APIs, Documentation and technical support made available by Guide to Customer in connection with such services) set forth in the applicable Sales Order, and any subsequent updates or upgrades of the foregoing.
“Subscription Term” means the term for Customer’s subscription to the Services as set forth on the applicable Order Form.
“Users” means employees, agents, or contractors of Customer or its Affiliates that are authorized by Customer to access and use the Services.
During the Subscription Term, Guide will make the Services available to Customer and its Users, for access and use by such Users solely for Customer’s internal business purposes in accordance with the terms of this Agreement. Customer is responsible for use of the Services by Users and any party who accesses the Services with Customer’s or a User’s account credentials.
During the Subscription Term, Guide will use commercially reasonable efforts to respond to all incidents where Services are not available or there is material functional degradation within 30 minutes during business hours (9 am - 5 pm PT) and within 1 hour during non-business hours. Availability is measured at the point where the Services are made available on the Internet from the applicable Guide Product center and are exclusive of unavailability caused by the Customer, outages by third-party Internet transport providers, scheduled maintenance periods or because of other causes beyond Guide's reasonable control. Guide will use reasonable efforts to provide advance notice of scheduled unavailability of the Services within the Services portal or by email. Procurement and Provisioning by Affiliates. Customer may procure Services under this Agreement for its own account and on behalf of its Affiliates. Customer is responsible for the acts and omissions of any Customer Affiliate that receives the benefit of the Services but is not a signatory under any Sales Order. Additionally, Customer Affiliates may procure Services directly under this Agreement by executing a Sales Order with Guide. Any Customer Affiliate who signs a Sales Order will be deemed a “Customer” hereunder and is solely responsible for its performance or non-performance. Changes. Guide may modify the Services and reserves the right to discontinue individual features within the Services from time to time and will provide notice of such changes to customers via the Services web portal/website. To the extent such changes result in a material reduction of overall functionality without a comparable replacement, Guide will refund Customer a pro-rata portion of all prepaid fees associated with the discontinued Services for which no comparable replacement was provided. Customer Responsibilities and Restrictions.
Customer may procure Services under this Agreement for its own account and on behalf of its Affiliates. Customer is responsible for the acts and omissions of any Customer Affiliate that receives the benefit of the Services but is not a signatory under any Sales Order. Additionally, Customer Affiliates may procure Services directly under this Agreement by executing a Sales Order with Guide. Any Customer Affiliate who signs a Sales Order will be deemed a “Customer” hereunder and is solely responsible for its performance or non-performance.
Guide may modify the Services and reserves the right to discontinue individual features within the Services from time to time and will provide notice of such changes to customers via the Services web portal/website. To the extent such changes result in a material reduction of overall functionality without a comparable replacement, Guide will refund Customer a pro-rata portion of all prepaid fees associated with the discontinued Services for which no comparable replacement was provided.
Customer will (a) be responsible for (i) all use of the Services and Documentation under its account, (ii) the accuracy, quality, integrity and legality of Customer Content, (iv) administering the registration and password access to the Services, (v) maintaining the security of Customer’s account, passwords and files, and for all uses of Customer’s Guide account, and (vi) ensuring Users’ compliance with this Agreement; (b) use of the Services, and ensure that its Users use the Services, solely in compliance with applicable laws, rules and regulations; (c) make available such personnel and information as may be reasonably required, and take such other actions as Guide may reasonably request, in order for the Services to be delivered pursuant to this Agreement; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services via Customer accounts; and (e) notify Guide promptly of any unauthorized access to or use of Services in breach hereof, (and Customer hereby permits Guide to deactivate such compromised accounts or users); and (f) be solely responsible for its failure to use the current version of the APIs and frameworks made available by Guide.
Customer will not, and will ensure that its Users do not, directly or indirectly (i) make the Services available to anyone other than Users or use the Services for the benefit of any unrelated third party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services; (iv) modify, translate or create derivative works based on the Services or remove any proprietary notices or labels from the Services; (v) use or access the Services to build or support, and/or assist a third party in building or supporting products or services competitive to the Services; or (vi) include the Services in a service bureau or outsourcing offering.
Customers will not permit anyone other than its Authorized Users to access or use the Services. Customers will ensure that its use of the Services does not exceed the usage terms specified in the Sales Order (“Usage Rights”). If Guide determines that Customer is exceeding the Usage Rights, Guide will notify Customer, and Customer will have 30 days from the date of notice in which to bring its usage within the limits of such Usage Rights, otherwise, Guide may charge Customer, and Customer agrees to pay, for the applicable usage tier, which will be co-termed with the Subscription Term in the applicable Sales Order. For purposes of the Usage Rights, unless otherwise set forth in the Sales Order, each User will be a named individual identified by his or her individual email address.
Guide may immediately suspend Customer’s account and access to the Services if (i) Customer fails to pay overdue undisputed amounts within 10 business days following Customer’s receipt of written notice of delinquency from Guide; or (ii) Customer violates Section 4.2 (Restrictions), or Section 6.4 (Confidentiality). Any suspension of the Services as set forth above will not relieve Customer of its payment obligations hereunder. Guide will promptly lift the suspension upon Customer’s payment or remedy of the triggering violation, as applicable.
Except for Fees subject to a good faith dispute, Customer will pay Guide the Fees set forth in the applicable Sales Order and invoiced pursuant to this Agreement. Except as expressly set forth in the this Agreement and/or the applicable Provisioning Document (a) fees are quoted and are due and payable in United States Dollars, net of taxes and will be invoiced on the start date of the applicable service period; (b) fees paid are non-refundable; and (c) payment obligations are non-cancelable. All amounts are due and payable as specified in the Sales Order. If no payment terms are specified in a Sales Order, payment terms are net 30 days from receipt of invoice.
All Fees are exclusive of, and Customer will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Guide Services. Customer is not responsible for any taxes based on Guide’s net income or property. Customer may not withhold any taxes or charges from any amounts due to Guide or set-off any amounts due to Guide.
As between the parties, Guide retains all right, title and interest in all its trademarks, service marks, logos and domain names and patents, copyrights, trade secrets, and other intellectual property rights in and to the Services, any and all related and underlying software, technology, algorithms, interfaces, processes, tools, and Documentation, and any derivative works, modifications, or improvements of any of the foregoing, (collectively, “Guide Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in or to any Guide Technology is granted to Customer.
From time to time Customer or its employees, contractors, or representatives may provide to Guide suggestions, comments, feedback or the like with regard to the Services, including for example suggestions for enhancements, improvements, new features or additional functionality (collectively, “Feedback”). Customer hereby grants to Guide a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Guide’s business, including, without limitation, the testing, development, maintenance and improvement of the Services.
Customer Content is owned exclusively by Customer. Customer grants to Guide a revocable, fully-paid, non-exclusive, worldwide license to copy, process and use Customer Content for the sole purpose of providing the Services to Customer.
Each party will use the Confidential Information of the other solely in accordance with the provisions of this Agreement and will not disclose, or permit Confidential Information of the other party to be disclosed, directly or indirectly to any third party without the other’s prior written consent, except as otherwise permitted herein. Either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations at least as stringent as those herein; or as required by law, in which case the party disclosing the other’s information to any third party will (if permitted by law and to the extent practicable) (a) provide the other with (i) prior written notification thereof and (ii) the opportunity to contest such disclosure; and (b) use reasonable efforts to minimize such disclosure. Each party will exercise due care in protecting Confidential Information from unauthorized use and disclosure and will promptly notify the other in writing if it becomes aware of any violations of confidentiality obligations set forth herein. Customer Content will be deemedis Customer’s Confidential Information and the Guide Technology (as defined in Section 6.1) will be deemed Guide Confidential Information.
Guide may aggregate, collect and analyze information relating to the provision, use and performance of the Services and may use (during and after the term hereof) such information to develop and improve the Services and other Guide offerings, including disclosure of such information to third parties in an aggregated and anonymized format such that no Customer nor any individual or household can be identified or re-identified.
Each Party represents and warrants to the other Party that it has the power and authority to enter into this Agreement.
Guide warrants that the Services, under normal use, will perform materially in accordance with the Documentation.
Customer will notify Guide of any Services non-conformance under Section 7.2 without undue delay and in no case later than within 30 days of the date on which the Customer became aware of the condition giving rise to the claim. Provided that Customer notifies Guide within such time and provides reasonable evidence of the non-conformance, Guide will correct the non-conformance at no additional charge. If Guide cannot re-perform such deficient Services as warranted, as Customer’s sole and exclusive remedy Customer will be entitled to terminate the deficient Services, as applicable, under Section 9.3(b) below and recover a pro-rata portion of the fees paid to Guide for such deficient Services, and such refund will be Guide's entire liability.
EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE EXTENT NOT PROHIBITED BY LAW, (A) Guide DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES THAT THE SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION OR WILL BE FREE OF VULNERABILITIES AND (B) EACH PARTY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Guide DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
THIS SECTION 8.1 STATES Guide’S AND ITS AFFILIATES’ SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY CLAIM RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
Customer will defend Guide against any claim brought against Guide by a third party alleging (i) Customer Content infringes or otherwise violates the intellectual property, privacy or other rights of the claimant; or (ii) Customer's use of the Services, other than as authorized in this Agreement, violates applicable law or regulations, or infringes the claimant’s intellectual property rights, and will pay all damages and costs finally awarded against Guide or as set forth in any approved settlement as a result of such claim. The procedures set forth in section 8.1(b) apply with respect to the foregoing indemnification obligations of Customer.
EXCEPT TO THE EXTENT PROHIBITED BY LAW, NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR ERROR OR INTERRUPTION OF USE, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT EXCEED THE CUMULATIVE FEES INVOICED TO CUSTOMER UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS, OR DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR TO THE EXTENT PROHIBITED BY LAW.
The term of this Agreement begins on the Effective Date and will remain in effect until terminated in accordance with its terms (“Agreement Term”).
Each party has the right to terminate this Agreement upon written notice if (a) there is no Sales Order currently in effect; (b) the other party commits any material breach of this Agreement and fails to remedy such breach (if capable of remedy) within 30 days after written notice of such breach; or (c) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings, insolvency or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within 60 days.
If Guide terminates a Sales Order for Customer’s uncured material breach (i) all fees set forth in the terminated Sales Order will be immediately due and payable; (ii) all rights granted thereunder will immediately terminate; and (iii) if such terminated Sales Order includes fees for usage of the Services in excess of the Usage Rights, such fees are also immediately due and payable. If Customer terminates a Sales Order for Guide’s uncured material breach, Customer will be entitled to a pro-rata refund for applicable prepaid fees under such terminated Sales Order for the Services not performed as of the date of termination. Upon completion of the Agreement Term or termination of this Agreement, all rights to access and use the Services will terminate and (a) Guide will irretrievably delete and destroy Customer Content and, if requested in writing, Guide will certify to such destruction in writing, and (b) Customer will delete and remove from its computers all copies of any Guide Technology (as defined in Section 6.1), including any Guide software, and, if requested in writing, Customer will certify such deletion and removal in writing.
Upon termination of this Agreement all rights and obligations granted therein will immediately terminate except that any accrued rights and the following sections will survive: Sections 4.1 (Customer Responsibilities and Restrictions), 5 (Fees and Payment), 6 (Proprietary Rights and Confidentiality), 7.4 (Warranty Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10.3 (Effect of Termination), and 12 (General).
“Personal Information” shall mean information that is provided to Guide by, or at the direction of, Customer or to which access was provided to Guide by, or at the direction of, Customer in the course of Guide’s performance under this Agreement that: (i) identifies or can be used to identify an individual; (ii) can be used to authenticate an individual; and/or (iii) is deemed personally identifiable information pursuant to Applicable Laws of the jurisdiction where Services are rendered.
Each Party agrees to abide by all laws, ordinances and regulations (whether international, federal, state, local or provincial) to the extent applicable to its performance under this Agreement.
Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will insure to the benefit of each of the parties and their respective successors and permitted assigns.
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. The failure of either party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
The Parties are independent contracting parties. Nothing in this Agreement will be construed to create a partnership, joint venture, employment, or agency relationship between the Parties.
Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including but not limited to earthquake, flood, or other natural disaster, “acts of God”, pandemic or similar outbreak, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
Guide is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion and to use Customer’s logo on Guide’s website. Customer also agrees to consider the following upon reasonable request: (i) serving as a reference or hosting onsite reference visits; (ii) collaborating on press releases announcing or promoting the relationship upon completion of the initial phase of the project with the help of the Guide team; and (iii) collaborating on case studies or other marketing collateral as mutually agreed between the parties.
Guide may give general notices for Services applicable to all customers via a notice on the Services web portal. Any legal notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Customer must be sent to the email or other address set forth in the applicable Sales Order. Notices to Guide must be sent to the following address: Guide Inc., 2718A McAllister St San Francisco CA 94118. Day to day operational and business messages may be sent by email.
Both parties agree that 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 terms or conditions stated in a Customer purchase order, vendor or partner onboarding process or web portal, or any other Customer order documentation (other than the Sales Order as mutually agreed and signed by both Parties) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void, notwithstanding any language to the contrary therein. In the event of a conflict between the Master Services Agreement and a Sales Order, the Sales Order shall prevail. This Agreement may be executed in separate counterparts. A signature transmitted by electronic image such as a pdf shall be effective.