Master Subscription Agreement (MSA)

1. PURPOSE

This MSA governs your subscription to and use of Applications and Support, and/or other transactions, as specified in an Order Form.

2. DEFINITIONS

"Affiliate" means any company controlling, controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.

"Applications” means the SaaS Services and the Software.

"Documentation" means, for Applications, the technical documentation including administrator and user guides, and for Support, the customer support policy, in each case available in the Support section of www.owndata.com or other web pages designated by us.

"Order Form" means an ordering document for Applications and/or Support entered into between you and us, including our respective Affiliates, under this MSA, including any addenda and supplements thereto.

"Own," "we," "our," and "us" mean the Own entity described in Section 11.1 (General) below.

“Pilot Product” means an Own product or service that may be made available to you to try at your option at no additional charge and which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“SaaS Services” means our software-as-a-service applications specified in an Order Form hereunder, as described in the Documentation.

"Security Measures" means the security measures described in Section 6.4 (Data Security) below.

“Software” means our software programs provided for installation in Third-Party Data Source environments, that are specified in an Order Form hereunder, as described in the Documentation.

"Support" means customer support for the Applications, as described in the Documentation.

“Third-Party Data Sources” means third-party cloud-based services to which you subscribe separately and from which the Applications are designed to ingest data (such as, for example, Salesforce, ServiceNow and Microsoft Dynamics 365).

"You" and "Your" mean the company, organization, other entity, or individual on behalf of which this MSA is accepted, as described above.

"Your Data" means data uploaded or submitted to the SaaS Services by or for you.

3. APPLICATIONS

3.1. Provision of Applications and Support. We will (a) provide the Applications to you pursuant to this MSA, Order Forms and the Documentation, (b) provide standard Support for the Applications to you at no additional charge, and/or upgraded Support if purchased, and (c) provide the SaaS Services in accordance with the Service Level Addendum.

3.2. Affiliates and Contractors. You and your Affiliates may enter into Order Forms with us and our Affiliates. An Affiliate entering into an Order Form adopts and agrees to be bound by this MSA. You may allow your Affiliates and your and their contractors to use Applications, provided you are responsible for their compliance with this MSA and use by contractors is solely for your or your Affiliate’s benefit.

3.3. Your Responsibilities. You (a) will keep your Application passwords confidential, (b) are primarily responsible for activity in your Application accounts when accessed using your login credentials, (c) will notify us promptly of any unauthorized access to your Application accounts of which you become aware, (e) will use the Applications only in accordance with the Documentation and applicable law, and (f) are responsible for the content and configuration of Your Data, as uploaded or submitted to the SaaS Services.

4. WARRANTIES AND EXCLUSIVE REMEDY

4.1. Warranties. We warrant to you that: (a) the Applications and Support will materially perform the functions described in the Documentation, and (b) the Application functionality, Support and Security Measures will not materially decrease during any paid term hereunder.

4.2. Exclusive Remedy. For any warranty breach, your exclusive remedy and our sole obligation shall be: (a) our cure of the breach within a reasonable period after your notice to us specifying the breach, or (b) if we do not cure the breach within such period, termination of this MSA with immediate effect upon notice to  us, along with the remedies for termination for breach described in Section 8.5 (Effect of Termination) below.

4.3. Disclaimer. We disclaim all implied warranties, including, without limitation, any implied warranties of merchantability and fitness for a particular purpose. We provide no warranty, and disclaim all implied warranties, during any free trial, evaluation, or proof-of-concept period. We do not guarantee that Applications will be uninterrupted, error-free or invulnerable.  We are not responsible for the effectiveness of encryption keys generated by you without using our sample script, or generated, stored or transmitted by you using a compromised system or network not managed by us.

5. PAYMENT

5.1 Fees and Payment. Fees are due and payable net 30 days from the invoice date. Except as provided herein or in an Order Form, payment obligations are noncancelable, fees paid are nonrefundable, and quantities cannot be decreased during an Order Form term. You are responsible for payment of all sales, use, VAT, withholding (without reducing the amounts payable to us under invoices) and similar taxes.

5.2 Nonpayment. Invoiced amounts not received by us by the due date may accrue interest at the lower of 1.5% per month or the maximum rate allowed by law. If an invoiced amount is 30 days or more past due, we may suspend provision of the Applications and Support until the amount is paid in full, provided that we have given you at least 30 days’ prior written notice that your account is past due. We will not exercise our rights under this paragraph to the extent you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

6. CONFIDENTIALITY AND DATA PROTECTION

6.1. Confidential Information Definition. "Confidential Information" means non-public information disclosed orally or in writing by a party or its Affiliate (Discloser) to the other party or its Affiliate (Recipient) about (without limitation) its business, finances, customers, partners, operations, products, technology, plans, or pricing, that is designated as confidential or reasonably should be considered confidential given the nature of the information and the circumstances of its disclosure. Your Confidential Information includes, without limitation, Your Data. Our Confidential Information includes, without limitation, the Applications.

6.2. Protection of Confidential Information. Recipient will use at least the same degree of care that it uses to protect the confidentiality of its own information of a like nature, but in no event less than reasonable care. Without limiting the foregoing, Recipient shall: (a) not use Discloser’s Confidential Information for a purpose inconsistent with the activities contemplated under this MSA, and (b) limit access to Discloser’s Confidential Information to those of Recipient’s and its Affiliates’ employees, directors, contractors, agents, advisors and auditors who need such access for activities contemplated under this MSA and who are legally or contractually bound to protect the Confidential Information as provided in this section. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of a duty owed to Discloser, (ii) was known to Recipient before its disclosure hereunder without breach of a duty owed to Discloser, (iii) is received from a third-party without breach of a duty owed to Discloser, or (iv) is independently developed by Recipient without use of Discloser’s Confidential Information.

6.3. Requests for Confidential Information. If Recipient receives a government or other third-party request for Discloser’s Confidential Information (including but not limited to any of Your Data), Recipient will direct the requestor to, and promptly so notify, Discloser if legally permitted to do so. Recipient will comply with such a third-party request only if so required by law; in such event, Recipient will seek to limit the disclosure to that Confidential Information which it is required by law to disclose.

6.4 Data Security. We will maintain the following Security Measures, as further detailed at https://www.owndata.com/company/security-controls: (a) appropriate technical, physical, administrative and organizational controls designed to maintain the confidentiality, security and integrity of your Confidential Information, including Your Data, (b) systems and procedures for detecting, preventing and responding to attacks, intrusions, and system failures, and regular testing and monitoring of the effectiveness of such systems and procedures, including, without limitation, through vulnerability scans and penetration testing, (c) a team of employees dedicated to implementation and maintenance of security controls, and (d) annual assessment of risks that could result in unauthorized disclosure, misuse, alteration, destruction or other compromise of your Confidential Information, including Your Data, and of the sufficiency of systems and procedures in place to mitigate those risks. On request, we will provide to you our SOC 1 and 2 type 2 independent audit reports, ISO 27001 and 27701 certifications, Standardized Information Gathering (SIG) and Cloud Security Alliance Consensus Assessment Initiative (CSA CAIQ) questionnaires, summary penetration test reports, and/or comparable reports, and any other security information that we make generally available to our customers, our provision of which will be considered responsive to your requests for our security information.

6.5. Data Privacy. We will protect the privacy of Your Data in accordance with the Data Processing Addendum at https://www.owndata.com/company/dpa, which is hereby incorporated into this MSA by reference, except as otherwise agreed by the parties in writing.

6.6. Data Breach. If we become aware of an unauthorized access to or disclosure, loss or alteration of Your Data, we will promptly notify you, seek to mitigate the breach and preserve forensic evidence, and provide you information about the nature and scope of the breach and our mitigation actions.

7. LICENSES AND PROPRIETARY RIGHTS

7.1. Licenses. We grant you a worldwide right and license to use the Applications and Documentation in accordance with and subject to the relevant Order Form(s) and the terms of this MSA. You grant us the right to use Your Data solely to perform our obligations under this MSA.

7.2 Ownership. As between the parties, (a) you solely own Your Data, including all intellectual property rights therein, and reserve all rights not expressly granted to us, and (b) we and our licensors solely own the Applications, including their underlying software, interfaces and architecture, and Documentation, and all intellectual property rights therein, and reserve all rights not expressly granted to you.

7.3 Acceptable Use. You may not (a) make an Application available to, or use an Application for the benefit of anyone other than you (b) sell, resell, license, sublicense, distribute, rent or lease any Application, or include any Application in a service bureau or outsourcing offering, (c) copy an Application, except Software copies automatically made in the course of a Third-Party Data Source’s disaster recovery operations, (d) make a derivative work based on an Application, (e) use an Application to store or transmit material in violation of privacy or intellectual property rights or applicable law, (f) use an Application to store or transmit malware, (g) interfere with or disrupt the integrity or performance of an Application, (h) attempt to gain unauthorized access to an Application, its related systems or networks, or third-party data contained therein, (i) reverse engineer or decompile an Application (to the extent such restriction is permitted by law), or (j) access an Application to build a competitive service or product, or copy any feature, function or graphic for competitive purposes. We may suspend provision of an Application if we believe in good faith that it is necessary to do so to mitigate an imminent threat to the security, availability or integrity of the Application or data processed by it. We will work with you to avoid such suspension to the extent practicable, and in the event of such suspension will work with you to restore provision of the Application as quickly as possible.

7.4 Third-Party Data Sources. Our Applications depend on the continuing availability of, and access to, the Third-Party Data Sources, including application programming interfaces. If a Third-Party Data Source for which you purchased an Application ceases to be available on reasonable terms for interoperation with our Applications (other than due to a temporary issue or your act or omission, including termination of your Third-Party Data Source subscription), then you may terminate the affected Order Forms and we will refund to you any prepaid and unused fees on a pro rata basis. Our SaaS Services copy Your Data from the Third-Party Data Sources to our SaaS Services. Third-Party Data Source providers are not responsible for the privacy, security or integrity of such copies of Your Data in our SaaS Services and instead, Your Data stored in our SaaS Service is covered by the protections in this MSA. Our Applications may count your purchased quantity of your Third-Party Data Sources for the sole purpose of validating the purchased quantity of our corresponding Applications.

8. TERM AND TERMINATION

8.1. Term of this MSA. This MSA continues until the 30th day after all Order Forms have expired, unless earlier terminated as provided below.

8.2. Term of Order Forms. Each Order Form will specify an order term. Except as otherwise stated in an Order Form, the term of the Order Form and all subscriptions under it will automatically renew for additional one-year periods unless either party cancels automatic renewal by written notice (email acceptable) at least 30 days before the end of the relevant term.

8.3. Termination for Material Breach. If either party is in material breach of this MSA or an Order Form, the other party may terminate this MSA, together with all Order Forms, at the end of a written 30-day notice and cure period, if the breach has not been cured.

8.4. Return of Your Data. Within 15 days after termination of SaaS Services, upon written request, we will make the SaaS Services available for You to export Your Data at no additional charge. After such 15-day period, we will have no obligation to maintain Your Data and will destroy Your Data unless otherwise required by law.

8.5. Effect of Termination. If this MSA is terminated for our breach, we will refund fees prepaid by you, prorated for the remaining term of outstanding Order Forms after the termination date. If this MSA is terminated for your breach, you will pay any unpaid fees for the term of all Order Forms. Upon request following any termination of this MSA, each party will destroy or return all copies of the other party’s Confidential Information that it holds, subject to its regular backup retention processes, Section 8.4 (Return of Your Data) above, and applicable law.

8.6. Survival of Terms. Any terms that by their nature survive termination of this MSA for a party to assert its rights and receive the protections of this MSA, will survive (including, without limitation, the confidentiality, ownership, warranty disclaimers, effects of termination and limitation of liability terms in this MSA).

9. LIMITATION OF LIABILITY

9.1. No Indirect Damages. Neither party or its Affiliates will be liable for any indirect, special, incidental, consequential or punitive damages or losses arising out of or related to this MSA (including, without limitation, lost profits, lost revenue, lost savings, or costs of delay).

9.2. Liability Limit. Each party’s and its Affiliates’ total, aggregate liability arising out of or related to this MSA will not exceed the amount paid by you within the 12 months before the first incident out of which the liability arose. The preceding sentence will not apply to any breach by us of our security, confidentiality or privacy obligations regarding Your Data; provided in no event will our and our Affiliates’ total, aggregate liability for such breaches related to any incident or series of connected incidents exceed two times the amount paid by you within the 12 months before the first such incident, so long as the Shared Responsibility Features are enabled and in use in your applicable SaaS Service instance(s). “Shared Responsibility Features” means IP restrictions and either multi-factor authentication or single sign-on, in each case to the extent available from us for the applicable SaaS Services.

9.3. Conditions. The exclusions and limits in Section 9 (“Limitation of Liability”) reflect the parties’ allocation of risk and will apply under any legal theory (including, without limitation, contract or tort), even where a party was aware of the possibility of such damages, the damages were foreseeable, and/or any remedies hereunder fail of their essential purpose. Such exclusions and limits will not limit your payment obligations under Order Forms or either party’s liability for infringement of the other party’s intellectual property rights. Such exclusions and limits will not apply to the extent they are prohibited by law.

10. INDEMNIFICATION

We will defend you against any claim, demand, suit or proceeding against you alleging that use of an Application in accordance with this MSA infringes or misappropriates a third-party’s intellectual property rights (a “Claim”), and will indemnify and hold you harmless from and against any damages, attorney fees and costs awarded against you as a result of, or for amounts paid by you in settlement of, a Claim, provided you (a) promptly notify Us of the Claim, (b) give us sole control of the defense and settlement of the Claim (except that we may not settle a Claim unless you are unconditionally released of all liability), and (c) give us all reasonable assistance at our expense. If your use of the Application is enjoined, we shall (or if we receive information about a potential or actual Claim, we may), at no cost to you (i) modify the Application without breaching our warranties above, (ii) obtain a license for your continued use of the Application in accordance with this MSA, or if options (i) and (ii) are not reasonably available to you, (iii) terminate the applicable Order Forms and refund you all fees prepaid for the remainder of the term of such Order Forms after the termination date. Our obligations in this section do not apply if (1) the allegation does not specify that the Application is the basis of the Claim, or (2) a Claim arises from the use or combination of an Application or any part thereof with software, hardware or processes not provided by us if the Application or use thereof would not infringe but for such combination. For purposes of this section, “you” includes your Affiliates. This section states our sole liability and your exclusive remedy for infringement. This section does not apply to claims arising during any free trial, evaluation, or proof-of-concept period.

11. WHO YOU ARE CONTRACTING WITH, GOVERNING LAW, JURISDICTION AND ARBITRATION

11.1. General. The entity you are contracting with under this MSA, what law will apply in disputes arising in connection with this MSA, and where and such disputes will be resolved, depend on where you are domiciled.

11.2. Arbitration if You are Domiciled in Countries Other Than Israel. If you are domiciled in a country for which arbitration is designated in Section 11.1 (General) above as the exclusive forum for dispute resolution, then any dispute or claim arising out of or relating to this MSA, including the scope or applicability of this arbitration clause, will be determined by confidential and binding arbitration in Newark, New Jersey, United States, before a single arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or its International Rules and Procedures, as provided in Section 11.1 above, in either case in accordance with the Expedited Procedures in those Rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The parties will treat all disputes arising under this MSA, including arbitration proceedings and awards, as Confidential Information of both parties, except as necessary in connection with a judicial challenge to or enforcement of an award or otherwise required by law or judicial decision. Notwithstanding the above, either party may seek injunctive relief in a court of competent jurisdiction, and issues of patent or copyright ownership or infringement may be decided only by a federal court in Newark, New Jersey and not by arbitration. The prevailing party in any action arising from or relating to this MSA shall be entitled to recover its reasonable attorneys’ fees and costs including, without limitation, arbitration and expert fees.

11.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to mandatory, binding arbitration and/or the exclusive jurisdiction of the courts above, as applicable.

12. TERMS FOR AUSTRALIAN CUSTOMERS

12.1. Terms Applicable to all Australian Customers. We will protect Your Data in accordance with the Privacy Act 1988 (Cth)).

12.2. Terms Applicable to Australian Customers with Contracted Fees of AUD 100,000 or Less. If you are domiciled in Australia and the total fees payable by you to us are AUD 100,000 or less, then our products and services come with guarantees that cannot be excluded under the Australian Consumer Law, and the following terms apply:

13. PILOT PRODUCTS

13.1  Pilot Products.  We may make Pilot Products available to you at no charge. You may choose to try Pilot Products or not in your sole discretion. Pilot Products are provided subject to the following terms, notwithstanding anything to the contrary in this MSA.

14. OTHER TERMS

14.1. Entire Agreement and Amendment. This MSA (including all exhibits, schedules and attachments thereto) and the Order Forms constitute the entire agreement of the parties and supersede all prior and contemporaneous discussions and agreements, oral and written, related to this MSA’s subject matter. No representation, promise or inducement not included in this MSA or an Order Form is binding, and neither party is relying on any representation, promise or inducement not expressly included in this MSA or Order Form concerning the subject matter hereof.. Any amendment or modification of this MSA or an Order Form requires both parties’ signatures. In the event of any inconsistency among the following documents, the order of precedence shall be: (1) Order Forms, (2) this MSA and (3) the Documentation. We reject any term or condition in any of Your form purchasing documents (excluding Order Forms).

14.2. No Assignment. Neither party may assign or transfer this MSA or an Order Form to a third party, except that this MSA with all Order Forms may be assigned, without the consent of the other party, to an Affiliate, or, as part of a merger, or sale of substantially all a party’s assets, business, or equity interests not involving a competitor of the other party.

14.3. Export Compliance. The Applications and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Application in a U.S.-embargoed country or in violation of any applicable export law or regulation.

14.4. Anti-Corruption. The parties shall comply with all applicable laws relating to anti-bribery and anti-corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this MSA.

14.5. Corporate Responsibility. We are committed to ethical and responsible business practices. For more information, please see our Business Conduct Principles at https://www.owndata.com/legal/.

14.6. Purchases Through Resellers. To the extent this MSA governs your use of Applications purchased through our authorized reseller, terms agreed between us and the reseller concerning fees, payment, support and renewal will take precedence over those in Sections 3.1 (Provision of Applications and Support) and 8.2 (Term of Order Forms) and Article 5 (Payment) above.

14.7. Notices. Notices under this MSA will be written and be effective on (i) the second business day after mailing, (ii) confirmed delivery by courier service, or (iii) except for notices of breach or an indemnifiable claim (Legal Notices), the day sent by email. Notices to us will be addressed to its VP Customer Success, with a copy to its General Counsel, at the address first listed above, and to success@owndata.com with a copy to legal@owndata.com. Billing notices to you will be addressed to the relevant billing contact designated by you, and Legal Notices to you will be addressed to you and be clearly marked as Legal Notices. Other notices to you will be addressed to the account contact designated by you.

14.8. Independent Contractors. The parties are independent contractors with respect to each other.

14.9. Waiver and Enforceability. Any waiver of a right under this MSA requires the waiving party’s signature. If any term of this MSA is invalid or unenforceable, the other terms remain in effect.

14.10. Money Damages Insufficient. A party’s breach of its confidentiality obligations under this MSA or violation of the other party’s intellectual property rights could cause the other party irreparable harm. The other party may seek a court order to stop or prevent any such breach or violation.

14.11. Feedback. If You provide feedback or suggestions about the Applications, then we (and those we allow to use our technology) may use such information without obligation to you; provided you will have no liability in connection with such feedback and we will not identify you as its source.

14.12. Reference. We may include your name and logo in sales and marketing materials, in accordance with any branding guidelines provided by you.

14.13. No Third-Party Beneficiaries. There are no third-party beneficiaries under this MSA.

14.14. Section Headings and Plain-English Summaries. Section headings and plain-English summaries are provided for your convenience only, and do not form part of, and should not be used to interpret, this legal agreement. You shouldn’t rely on them for any legal or contractual purpose.