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Master Subscription Agreement
Last updated: June 23, 2022
This Master Subscription Agreement (“Agreement”) is between 15Five, Inc. and our Customer
- Definitions.“Agreement” or “MSA” means this Master Subscription Agreement, including all addenda, exhibits, amendments, and materials referred or linked to herein, including Subscription Order Form (Addendum 1), Transform Addendum (Addendum 2 – as applicable), and Data Processing Addendum (Addendum 3 – as applicable).
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing. Confidential Information excludes information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, or (iii) is received from a third party without breach of any obligation owed to the Disclosing Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement.
“Consulting Services” means any professional services separately purchased by you and provided to you by us, including implementation, training, integration or other consulting services. Consulting Services do not include a Transform Subscription, detailed further below. Any Consulting Services you separately purchase will be detailed in the Order Form.
“Customer Data” means User Content, and any Confidential Information of Customer other than User Content.
“Data Processing Addendum” or “DPA” means the 15Five Data Processing Agreement found here. Should Customer be operating within the European Economic Area, then the DPA will be applicable and will be attached as Addendum 3 to this MSA.
“Data Protection Laws” means all laws that may be applicable to this MSA, as set out here.
“Effective Date” is the date as of which this Agreement has been signed by the second signing party.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws.
“Subscription Order Form” or “Order Form” means the order form setting out Subscriptions, Consulting Services, Term, pricing, and any special terms and conditions.
“Subscription Services” or “Services” means the subscriptions purchased by Customer and set forth in the Subscription Order Form.
“User Content” means any content uploaded or made available by Customer. User Content is considered Confidential Information of Customer.
“15Five Content” means all information, data, images, graphics, tags, video, music, sound, text or messages contained in the 15Five System that we incorporate into any 15Five Subscription Services.
“Subscription Fee” means the amount you pay for the Subscription Services.
“Subscription Term” or “Term” means the initial term of your subscription, as specified in the Order Form, and each subsequent renewal term (if any). For any free Beta Services, the Subscription Term will be the period during which you have an account to access the free Beta Services.
“Transform” means subscription-based coaching and training that Customer may choose to purchase. Any purchased Transform Subscription will be reflected in the Subscription Order Form and special terms and conditions will be set out in Addendum 2 to this MSA.
- Acceptable UseYour Rights. We grant you the right to access and use the Services during a Subscription Term and only in accordance with this Agreement for legitimate and lawful business purposes. We reserve all other rights. You may not access and use the Services in any way that circumvents or violates this Agreement or that violates the intellectual property rights of 15Five or of any unaffiliated third parties. You are solely responsible for the content of all Customer Data. You are also responsible for keeping secure and confidential any authentication credentials associated with your use of the Services. You may use the Services only in accordance with this Agreement. You may not disassemble, decompile, reverse engineer, or tamper with the Services. You may not lease, lend, rent, resell, or transfer the Services.
- LicenseOur Rights. You grant us a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, and fully paid license during the Term to (a) collect and analyze anonymized usage data and related information about the provision, use, and performance of the Services and to combine it with data from other customers into a new aggregated dataset, and (b) use such anonymized usage data and related information as a component of such new aggregated dataset, solely for the creation of internal benchmarking, statistical, research and marketing analyses, surveys, reports and studies. “Anonymized” means the removal of any personal identifiers to render any personal data from being related to an identified or identifiable natural person and any information reasonably likely to identify a company or other business entity, including any customer. Such revised data does not include and is not subject to any key, code, or other mechanism that could be used to restore such information.
- Transform15Five offers coaching and training on a separate subscription fee basis. Customer may receive such coaching and training, at additional cost, by paying for a Transform Subscription (Transform). Any purchased Transform Subscription will be reflected on an Order Form, and any special terms and conditions will be set out in Addendum 2 to this Agreement.
Copyrighted Materials. All coaching and training materials (slides, video sessions, print-outs, presentations, and workbooks) used by 15Five’s coaches, and all materials received by Customer, in whatever manner or format, are intended solely for Customer’s limited internal use during a paid Transform Subscription period. Customer may not white label, copy, distribute, publish, modify, alter, or reuse any materials that it views or receives except as expressly authorized during a paid Transform Subscription period. 15Five owns all copyrights to such materials. Any violation of such copyrights by Customer is deemed intellectual property infringement.
Non-Solicitation. Customer may not solicit, seek to entice or persuade, contract with, or make an offer of employment to any Transform coaches. Any such solicitation of coaches by Customer, during any Transform Subscription Term, including any subscription renewal term, shall be deemed a material breach of this Agreement.
- Payments & TaxesPayments. You are responsible for and agree to make all payments associated with your Subscription(s), as set out in a mutually signed Order Form. All amounts payable to 15Five will be invoiced to Customer per the terms of the Order Form. Customer shall pay each invoice within 30 days of the invoice date. All payments shall be made in US dollars in immediately available funds and are non-refundable. Any amounts not paid when due shall bear interest at the rate of 1.5% per month. Customer understands that Customer’s failure to pay undisputed invoices in a timely manner is a material breach of this Agreement. If any amount owing under this Agreement is more than 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.
Taxes. You will pay any sales, use and other taxes and similar charges based on or arising from Services provided or performed under this Agreement (other than taxes based on 15Five’s net income).
- Term & TerminationTerm. This Agreement will commence on the Effective Date and will continue for the period of time set forth in the Order Form (the “Initial Term”). At the conclusion of the Initial Term (or any subsequent Renewal Term (as defined herein)), this Agreement will automatically renew for additional renewal periods of one (1) year (each a “Renewal Term”), unless either Party gives notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term. Notice must be provided in accordance with Section 19 of this Agreement. The Initial Term and any Renewal Terms are collectively referred to as the “Term.” The per unit pricing increase during any Renewal Term will not exceed 5% of the pricing for the applicable Services in the immediately prior Subscription Term. All renewed Services (including any Transform Subscription) will be documented in a new Order Form and subject to this Agreement.
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 subsection (iii), any and all amounts due 15Five from Customer will be paid in full in lump sum due on the termination date.
- ConfidentialityEach 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.
- Security15Five will perform all Services in accordance with these published Security measures.
- Data Protection15Five will comply with all applicable Data Protection Laws.
- RepresentationsRepresentations. Each party represents that: (i) such party is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was incorporated or organized, 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 (iii) 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.
15Five represents that the Services will operate in all material respects as described in any Documentation provided by 15Five to Customer and that use of the Services requires no additional software or technology not stated in any Documentation. 15Five represents that it has all rights, licenses, and permits (including export licenses, if applicable) necessary to provide the Services, free and clear of any encumbrances. 15Five represents that it will not knowingly or intentionally allow any viruses or other harmful components into the Services.
- Disclaimer15Five provides no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimer will apply except to the extent applicable law does not permit it.
Except for those representations expressly made in Section 11 of this Agreement, to the maximum extent permitted by applicable law, the Services and all related Documentation 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 guarantee that access to the Services 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 Services will be free of viruses or other harmful components.
- Limitation of LiabilityEach party’s aggregate liability for all claims under this Agreement is limited to direct damages up to the amount paid under this Agreement for all Subscription Services during the 12 months prior to the cause of action arising. These limits of liability do not apply to claims of infringement or breach of confidentiality.
- Exclusions to LiabilityNeither party will be liable to the other for loss of revenue, indirect, incidental, consequential, special, punitive or exemplary damages, or damages for lost revenue, lost profits, loss of business information, or business interruption, even if reasonably foreseeable.
- Defense & Remedies & Process15Five will defend you against any claims made by an unaffiliated third party that our Services infringe that third party’s intellectual property rights. Our obligation to defend you will not apply in the instance of any claim or award based on modifications you make to the Services.
You will defend us against any claims made by an unaffiliated third party that any Customer Data infringes that third party’s intellectual property rights. You will also defend us against any claims made by an unaffiliated third party that arises from your violation of the Acceptable Use provisions of this Agreement.
In the event that any portion of the Services is believed by 15Five to infringe the intellectual property rights of any unaffiliated third party, then we will either: (i) obtain the right for you to keep using the Services; or (ii) modify the Services to avoid and eliminate such infringement. If these options are not commercially reasonable, then we may terminate your rights to use the Services and refund to you a prorated portion of paid Subscription fees.
Each party must notify the other promptly of an unaffiliated third party claim of infringement of intellectual property rights. The party seeking defense must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the defense will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties’ respective rights to defense and payment of judgments (or settlement the other consents to) under this Section 15 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.
- Customers Operating in the European Economic Area and Subject to GDPRNo Sensitive Information. If Customer operates in the European Economic Area, then Customer acknowledges that the Subscription Services are not designed to manage or process any Sensitive Information. As such, Customer agrees that it will not use the Services to collect, manage or process any Sensitive Information. 15Five disclaims any liability arising from your use of the Services to collect, manage or process Sensitive Information.
“Sensitive Information” means biometric information, personal health information (or other information protected under any applicable health data protection laws), financial account numbers or wire instructions, government issued identification numbers (such as Social Security numbers, passport numbers), credit or debit card numbers, personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection, and that is contained within Personal Data.
- Beta SubscriptionFrom 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 or different terms. Unless otherwise set forth in writing, any Beta Services trial period will expire upon the earlier of one 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.
- SurvivalUpon termination or expiration of this Agreement, all rights granted to either party shall immediately terminate, except that the following shall survive termination: Sections 2, 5, 12, 13, 14, 15, 19, and 20.
- NoticesAny 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
- Governing Law/Jurisdiction/Venue/Dispute ResolutionThis Agreement shall be construed in accordance with applicable U.S. federal law and the laws of the State of California without regard to any 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 conciliation. If the dispute is not resolved within a reasonable time, then any or all outstanding issues will be submitted to binding arbitration in accordance with the American Arbitration Association Commercial Rules of Arbitration in San Francisco, California. Binding arbitration shall be the parties’ exclusive means of dispute resolution except that 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. Each party will be responsible for its own attorney fees, costs, and expenses, as well as an equal share of the arbitrator’s fees, unless otherwise mutually agreed.
- Force MajeureNeither party will be liable to the other for any failure to perform as a result of causes beyond that party’s reasonable control (such as power blackout, fire, explosion, war, terrorism, (including cyber terrorism), earthquake, flood, severe storms, strike, embargo, labor disputes, riots, military authority, acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including laws or regulations that impact the delivery of Services). This Section will not apply to your payment obligations under this Agreement.
- Relationship of the PartiesThe relationship between the parties is and will remain 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. This Agreement does not create any agency, partnership, joint venture, or similar form of association between the parties.
- Publicity15Five may list Customer’s name and logo in experience citations and public-facing materials, including the 15Five website and other marketing materials.
- Entire AgreementThis Agreement, together with the Order Form, and any/all addenda, amendments, and exhibits attached to this Agreement, comprises the entire agreement between the parties, superseding any prior or concurrent communications between the parties. 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.
- AssignmentYou will not assign or transfer any subscriptions, obligations or benefits under this Agreement without the written consent of 15Five, which will 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 other purported transfer or assignment is deemed void.
- ModificationsAll modifications to this Agreement must be in a writing executed by a duly authorized representative of each of the parties.
- CounterpartsThis Agreement may be executed in counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.
- SeverabilityIf any provisions of this Agreement are held unenforceable, the remaining provisions shall remain in full force and effect.
The parties have caused their duly authorized representatives to execute and deliver this Agreement as of the Effective Date.