Master Service Agreement

Last updated: October 6, 2021


  1. Definitions.
    1. 15Five Content” means all content, including without limitation software (in object or source code form), script, programming code, data, information, structural hierarchies, processes, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text, contained in the 15Five System except for the User Content.
    2. 15Five Data” means all data generated by the 15Five System.
    3. 15Five System” means the Applications operated on 15Five’s hosting servers or those of its hosting service provider intended to enable Customer to interact with the same via the internet.  Without limiting the foregoing, the 15Five System shall include the Applications, the 15Five Content, the Website, and the User Interface.
    4. Account” means Customer’s online account with 15Five through which Customer orders, accesses and uses the Services (as defined below) and the 15Five System (as defined below).
    5. Application(s)” means the software application(s) made available on any Website (as defined below), any accompanying documentation, and all updates, upgrades, and enhancements thereof that may be provided by 15Five hereunder.
    6. Confidential Information” means any information disclosed by either party pursuant to this Agreement that is: (i) is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; (ii) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty days; or (iii) under the circumstances should in good faith be considered to be confidential including, without limitation, information related to: research, product plans, products, developments, inventions, personnel’s personally identifiable information, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing.  All technology or proprietary information underlying the Application(s), 15Five Content, 15Five Data, Website, and 15Five System shall be deemed Confidential Information of 15Five without any need for designating the same as confidential or proprietary.
    7. DPA” means the 15Five data processing addendum located at as may be modified by 15Five from time to time, which modifications become effective upon 15Five’s publication of the same on the Website.
    8. Developments” means the collective ideas, know-how, or techniques developed or conceived by 15Five as a result of providing the 15Five System to Customer, including without limitation any derivative works, improvements, enhancements and/or extensions made to the Applications, 15Five Content, 15Five Data, Website, or 15Five System, as well as all suggestions, comments, or other feedback related to the Applications, 15Five Content, 15Five Data, Website, or 15Five System or any other Confidential Information of 15Five, and all intellectual property rights therein and thereto throughout the world.
    9. Intellectual Property Rights” means all rights of the following types, under the laws of any jurisdiction worldwide: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (ii) trade secret rights; (iii) patent and industrial property rights; (iv) other proprietary rights of every kind and nature; and (v) trademark rights and rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the above.
    10. Privacy Policy” means the privacy policy located at, as may be modified from 15Five from time to time, which modifications become effective upon 15Five’s publication of the same on the Website.
    11. Services” means the services set forth at and/or in the terms included as part of the Account registration process, which may be updated from time to time by 15Five.
    12. User Content” means any content uploaded or made available by Customer.
    13. User Interface” means the web-based interface hosted by 15Five by which Customer may access the 15Five System’s performance management suite.
    14. Website” means the website located at, any other related sites operated by 15Five and all subdomains, subpages, and successor sites thereof.
  2. 15Five’s Responsibilities.
    1. 15Five will provide Customer access to the Services and will host and maintain the Applications on servers operated and maintained by or at the direction of 15Five.  15Five may in its sole discretion modify, enhance, or otherwise change the Applications.  15Five may delegate the performance of certain portions of the 15Five System to third parties, including 15Five’s wholly owned subsidiaries.
    2. 15Five will host and maintain the User Interface, and provide Customer access to the User Interface pursuant to a password protected Account.  15Five reserves the right to periodically change issued passwords.  15Five will provide prompt notice to Customer of any such password changes.
    3. The Privacy Policy applies to 15Five’s treatment of information received from or about individuals.
    4. If and to the extent applicable to User Content comprising personally identifiable information, 15Five shall comply with its obligations under the DPA.
  3. Customer’s Responsibilities.
    1. Customer will be responsible for obtaining and maintaining at its expense all the necessary computer hardware, software, modems, connections to the internet and other items required for Customer’s access and use of the 15Five System, Website, and User Interface.
    2. Customer shall provide the User Content, or assist 15Five in procuring User Content from Customer’s vendors, as applicable, as mutually agreed upon between the parties.
    3. During the Term (as defined below), Customer shall use its commercially reasonable efforts to cooperate with 15Five in developing and sharing testimonials, case studies, marketing materials, return-on-investment calculations, and measurement criteria for the purpose of substantiating the value, benefits, and cost savings derived from the 15Five System.  In addition, Customer hereby grants 15Five a limited, worldwide, non-exclusive, royalty-free license during the Term to use its logo in marketing materials, including, but not limited to, the 15Five website.
  4. License Grants; Restrictions.
    1. Rights to Customer.  Subject to the terms and conditions of this Agreement, 15Five hereby grants Customer limited, personal, non-transferable rights during the Term to: (i) access and use the Applications and 15Five Content via the 15Five System solely in the manner contemplated by this Agreement; (ii) use the 15Five Data solely to use and evaluate the 15Five System; and (iii) access and use the Website as required to use the Applications and 15Five Content via the 15Five System.
    2. License to 15Five.  Subject to the terms and conditions of this Agreement, Customer hereby grants 15Five a limited, worldwide, non-exclusive, royalty-free: (i) license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, display, store, archive, and make derivative works of the User Content in order to provide the 15Five Services, including, without limitation, the creation of 15Five Data; and (ii) perpetual license to use data derived from the interaction of non-personally identifiable User Content with the 15Five System for the creation of internal benchmarking, statistical, research and marketing analyses, surveys, reports and studies, but only in aggregate, blinded, non-personally identifiable formats that do not identify, reference or imply an association with Customer.  15Five may not sublicense or resell the User Content or any component thereof.
    3. License Restrictions.  Customer shall not, and shall not permit any third party to: (i) use the Applications, 15Five Content, 15Five Data, Website, or 15Five System except to the extent permitted in Section 4(A); (ii) modify or create any derivative work of any part of the Applications, 15Five Content, 15Five Data, Website, or 15Five System; (iii) market, sublicense, publish, distribute, reproduce, resell, assign, transfer, rent, lease, or loan the Applications, 15Five Content, 15Five Data, Website, or 15Five System; or (iv) use the Applications, 15Five Content, 15Five Data, Website, or 15Five System for commercial time-sharing or service-bureau use.
    4. Reservation of Rights.  15Five reserves all rights to the Applications, 15Five Content, 15Five Data, Website, and 15Five System not otherwise expressly granted in this Section 4.
  5. Payments and Taxes.
    1. Customer Fees.  Customer agrees to pay, and shall pay, the fees set forth in terms included as part of the sign up process.  Customer authorizes 15Five’s designated payment processor to charge its specified credit card, debit card or other payment method for such fees as are set forth in the Account.  Payments for fees will be billed in advance on an annual basis, or as otherwise specified in the Account and will be due within such period of time as is set forth therein.  All payments shall be made in U.S. dollars in immediately available funds, and are non-refundable.  Declined credit card, debit card, or other payment authorizations shall be considered delinquent.  Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.  Customer understands Customer’s failure to pay invoices in a timely manner is a material breach of this Agreement.  If any amount owing under this Agreement is more than thirty (30) days past due, without limiting its other rights and remedies, 15Five may suspend its performance of the Services without penalty or liability to Customer until such amounts are paid in full.
    2. Taxes.  Customer shall pay any sales, use, and other taxes and similar charges based on or arising from the 15Five System, this Agreement, or its performance (other than taxes based on 15Five’s net income).
  6. Warranties and Disclaimers.
    1. General.  Each party represents and warrants that: (i) such party is a corporation duly organized, validly existing, and in good standing under the laws of the state of its incorporation, and has the full power and authority to enter into and perform its obligations under this Agreement; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and (iv) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.  Customer represents and warrants that the acceptance, delivery, and performance by Customer of this Agreement, including, without limitation, the provision to 15Five of the User Content hereunder, does not and will not violate any applicable statute, regulation, or law, or infringe any intellectual property right or other legal right of any third party.
    2. Disclaimers.  Except as provided in this section 6 and to the maximum extent permitted by applicable law, the 15Five System and all related information, technology, and services provided by or on behalf of 15Five are provided “as is,” “as available,” and without any representations or warranties of any kind, express or implied, and 15Five expressly disclaims any implied warranties of merchantability, fitness for a particular purpose (even if 15Five is advised of the purpose), accuracy, and/or non-infringement.  In addition, 15Five does not warrant that access to the 15Five System will be uninterrupted or error free, that the Applications will meet Customer’s needs, or that data will not be lost.  Without limiting the foregoing, 15Five does not warrant that the 15Five System is free of viruses or other harmful components.  Any content downloaded or otherwise obtained through the use of the 15Five System is downloaded at Customer’s own risk and Customer will be solely responsible for any damage to its computer system or loss of data that results from such download or Customer’s use of the 15Five System.  Customer expressly acknowledges and agrees the services rely upon third party software and hardware for certain functions and 15Five makes no representation, warranty, promise, or guarantee to customer that such software or hardware will be error-free, will accomplish a specific purpose, or perform in accordance with any particular standard, level, or metric, and 15Five will not be liable to customer for any failure thereof.
  7. Term, Termination, and Survival.
    1. Term.  The term of this Agreement commences on the date Customer first uses the 15Five System or registers for an Account, whichever occurs earlier, and continues until this Agreement terminated as provided herein (the “Term”).
    2. Termination.  Either party may terminate this Agreement: (i) on thirty (30) days’ prior written notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s notice; (ii) immediately on written notice if: (a) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (b) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within thirty (30) days; or (c) the other party is adjudged bankrupt or insolvent; or (iii) on thirty (30) days’ prior written notice for any other reason, provided that, if the Agreement is terminated under this Section 7(B)(iii), any and all amounts due to 15Five from Customer shall be paid in full in a lump sum due on the termination date.
    3. Survival.  Upon termination or expiration of this Agreement, all licenses granted hereunder shall immediately terminate.  The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4(B), 4(C), 4(D), and 5 through 20 (inclusive).
  8. Limitation of Liability.
    1. Except for indemnification obligations under Section 10 below, the aggregate liability of 15Five and its licensors to Customer arising from its access to or use of the 15Five System, or 15Five’s provision of technical support, installation, training or other services in connection therewith, or otherwise in connection with this Agreement or its subject matter, however caused, and on any theory of liability, including without limitation contract, strict liability, negligence and/or other tort, shall in no event exceed the amount of fees that have been paid to 15Five for access to and use of the 15Five System during the six (6) months immediately preceding the first event giving rise to such liability.
    2. In no event will 15Five or its licensors be liable for any indirect, incidental, lost profits, punitive, cover, exemplary, special, or consequential damages, including without limitation damages for loss of profits, revenue, data, or data use, even if advised of the possibility of such damages, including, without limitation, any liability related to the procurement of substitute goods.  The foregoing limitations form an essential basis for this Agreement and shall survive regardless of the failure of any remedy of its essential purpose.
  9. Ownership.
    1. 15Five’s Ownership Rights.  Subject only to the limited license expressly granted under this Agreement, as between 15Five and Customer, 15Five shall retain all right, title, and interest in and to the Applications, 15Five Content, Website, 15Five System (excluding the User Content), Developments, and 15Five Data, and all Intellectual Property Rights therein.  Nothing in this Agreement will confer on Customer any right of ownership or interest in the Applications, 15Five Content, Website, 15Five System (excluding the User Content), Developments, and 15Five Data, and all Intellectual Property Rights therein.  To the extent Customer has or obtains any right, title, or interest in the Applications, 15Five Content, Website, 15Five System (excluding the User Content), Developments, and 15Five Data, and all Intellectual Property Rights therein, Customer hereby assigns, and agrees to assign, without further consideration, to 15Five all such right, title, and interest Customer may have or obtain.
    2. Customer’s Ownership Rights. Subject only to the limited license expressly granted hereunder, as between Customer and 15Five, Customer shall retain all right, title and interest in and to the User Content, and all Intellectual Property Rights therein.  Nothing in this Agreement will confer on 15Five any right of ownership or interest in the User Content, or the Intellectual Property Rights therein.
    3. Execution of Documents. During the Term, and at any other time thereafter, at 15Five’s request Customer shall execute any and all documents and perform any and all acts that 15Five may reasonably require in order to protect and perfect any 15Five Intellectual Property Rights, or to apply for, obtain, and vest in the name of 15Five alone all patents, copyrights, trademarks, or other similar protection for any 15Five Intellectual Property Rights, and, when so obtained or vested, to maintain, renew, and restore the same.
  10. Indemnity
    1. Indemnity.  Each party shall indemnify, defend, and hold the other party and its affiliates, and its and their officers, members, directors, employees, agents, successors and assigns harmless from and against all liabilities (including liabilities arising out of the application of the doctrine of strict liability), obligations, losses, damages, penalties, fines, claims, actions, suits, judgments, costs, expenses, and disbursements (including reasonable legal fees and expenses and reasonable costs of investigation) (“Losses”) caused by or otherwise arising from such party’s breach of its representations and warranties set forth in Section 6 above.  Customer shall indemnify, defend, and hold 15Five and its affiliates, and 15Five’s and their officers, members, directors, employees, agents, successors and assigns harmless from and against all third-party claims and Losses arising from: (i) Customer’s use of and access to the Service, including any data or content transmitted or received by Customer; (ii) any other party’s access and use of the Service with Customer’s unique username, password, or other appropriate security code; and/or (iii) any infringement or misappropriation claim that arises from: (v) modifications to the 15Five System by Customer or anyone other than 15Five; (w) modifications to the 15Five System based upon specifications furnished by Customer; (x) Customer’s use of the 15Five System other than as specified in this Agreement or in the applicable documentation; (y) use of the 15Five System in conjunction with third-party software, hardware, or data other than that approved by 15Five; or (z) any combination of the foregoing.
    2. Process.  The indemnified party shall promptly notify the indemnifying party in writing of any claim for which it seeks indemnification hereunder; provided that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure.  The indemnifying party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (i) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with the progress of such litigation or settlement, and (ii) the indemnifying party shall not have any right, without the indemnified party’s written consent, to settle any such claim in a manner that does not unconditionally release the indemnified party.
    3. Remedies.  In the event any portion of the 15Five System is held or believed by 15Five, or any portion of the User Content is held or believed by Customer, to infringe intellectual property rights of any third party (such portion to be deemed, the “Infringing Materials”) in any place where the 15Five System is used or accessed, then in addition to any other rights in this Section 10, 15Five (where the Infringing Materials are the 15Five System) or Customer (where the Infringing Materials are the User Content) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement.
    4. Sole Remedy for Intellectual Property Violations.  This Section 10 contains each party’s sole and exclusive remedy, and each party’s entire liability, with respect to infringement or alleged infringement of third party intellectual property rights relating to the 15Five System and the subject matter of this Agreement.
  11. Confidentiality.  Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent.  The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care.  The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information.  In the event of any termination or expiration of this Agreement, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party; provided, however, that 15Five may retain copies of Customer Confidential Information for routine backup and archival purposes.  Notwithstanding the foregoing, the obligations set forth in this Section 11 shall not apply with respect to any information to the extent that it is: (i) already in the possession of the receiving party prior to the first disclosure hereunder as shown by records or files; (ii) already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (iii) approved in writing by the disclosing party; or (iv) independently developed by either party without use of the Confidential Information from the other party.  If a party is required to disclose the other party’s Confidential Information by applicable legal authority, it may do so without such disclosure being deemed a breach of this Section 11; provided that, if permitted under applicable law, adequate notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure.
  12. Notices.  Any notice required or given to Customer under this Agreement shall be delivered by electronic mail to the email address provided in connection with Customer’s Account.
  13. Disclosures. Under California Civil Code Section 1789.3, California web users are entitled to the following specific consumer rights notice: The 15Five System is provided by 15Five, Inc.  If you have any questions, concerns, or complaints regarding the 15Five System, please contact 15Five, by either sending: (i) an email to [email protected]; or (ii) a letter, first class certified mail, to: 12 Gallagher Lane, San Francisco, California 94103.  If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (916) 455-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
  14. Consent to Use of Electronic Signatures and Records. As a convenience and courtesy to Customer, 15Five provides access to the 15Five System online which may require Customer to enter into agreements or receive notices electronically.  Accordingly, Customer acknowledges and agrees that by clicking “I Agree” or “I Accept” anywhere on the 15Five System or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Website: (i) Customer agrees to conduct electronically the particular transaction into which Customer thereby enters including, without limitation, entering into this Agreement; (ii) Customer read and understands the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies (as defined below) and any amendments hereto or thereto; (iii) Customer agrees to, and intends to be bound by, the terms of the particular transaction into which Customer thereby enters; (iv) Customer is capable of printing or storing a copy of electronic records of transactions into which Customer enters including, without limitation, this Agreement and any amendments hereto; and (v) Customer agrees to receive electronically information about the 15Five System, and other electronic records into which Customer thereby enters including, without limitation, this Agreement.  If Customer wishes to withdraw this consent, please contact us at [email protected], in which case 15Five shall have the right to terminate Customer’s Account and use of the 15Five System.
  15. Governing Law, Jurisdiction, Venue, and Dispute Resolution.  This Agreement shall be construed in accordance with applicable U.S. federal law and the laws of the State of California without regard to conflict of laws principles.  In the event a dispute arises out of or in connection with this Agreement, the parties will attempt to resolve the dispute through friendly consultation.  If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation.  If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues shall be finally settled by arbitration in San Francisco, California.  Notwithstanding the foregoing, each party shall have the right to institute an action in the state or federal courts of San Francisco County, California for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s).
  16. Force Majeure.  Other than for payment of money, a party shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, or any other cause beyond its reasonable control.  Such party shall use commercially reasonable efforts to cure any such failure or delay in performance arising from such a condition, and shall timely advise the other party of such efforts.  If such delay continues for more than sixty (60) days, the performing party may, upon not less than ten (10) days prior written notice to the non-performing party, terminate this Agreement.
  17. Relationship of the Parties.  The relationship between the parties shall only be that of independent contractors.  Neither party is an agent, representative, partner, employer, or employee of the other party, and neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
  18. General.  Customer shall not assign nor transfer any obligations or benefit under this Agreement without the written consent of 15Five, which shall not be unreasonably withheld or delayed, except that Customer may assign this Agreement to a successor in interest by way of merger, reorganization, asset sale, or the like.  Any purported transfer or assignment in violation of this section is void.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns.  This Agreement, together with any online policies 15Five may publish from time to time, including, but not limited to, the Privacy Policy and the DPA (collectively, the “Policies”), are the entire agreement between the parties hereto pertaining to the subject matter hereof and supersede all prior agreements, and all prior and contemporary proposals and discussions relating to the subject matter of this Agreement, and controls over the preprinted terms of any purchase order or similar document.  Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or different kind.  All notices and waivers under this Agreement must be in a writing executed by a duly authorized representative of each of the parties.  If any provision of this Agreement is determined to be unenforceable, that provision will be replaced with the valid one that most closely achieves the parties’ intent and the remainder of this Agreement will remain enforceable.
  19. Professional Services.  From time to time, 15Five may provide professional consulting services to Customer.  In case of each such provision, the parties will enter into a written statement of work (or purchase order) that references this Agreement and that sets forth the scope of those services, the compensation therefor, and such other terms and conditions as the parties determine (a “Statement of Work”).  Except to the extent expressly set forth in such Statement of Work, such Statement of Work is subject to, and governed by, this Agreement.
  20. Beta Services.  From time to time, 15Five may invite Customer to try certain new services, features, or functionality at no additional charge (the “Beta Services”). Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise set forth in writing, any Beta Services trial period will expire upon the earlier of one (1)-year from the trial start date or the date that a version of the Beta Services becomes generally available. 15Five may discontinue Beta Services at any time in 15Five’s sole discretion and may never make them generally available. Customer agrees 15Five will have no liability for any harm or damage arising out of or in connection with a Beta Service.