Master Service Agreement
Master Service Agreement
Last updated on July 9, 2019
This Master Services Agreement is between Goby, Inc. (“Goby”) and the subscriber identified on the initial Order Form (“Subscriber”). The parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows:
1. Definitions. Terms used in this Agreement with their initial letters capitalized have the meanings ascribed to them in this section or where they are elsewhere defined in this Agreement. Any term defined in the singular will have the corresponding definition in the plural (and vice versa). As used in this Agreement:
1.1. “Agreement” means this Master Services Agreement and all Attachments.
1.2. “Attachment” means all Order Forms, Service Level Agreements, Services Descriptions and all other documents referred to therein, and all other written exhibits, statements of work, schedules, addenda or other similar documents executed by the parties pertaining to the Services.
1.3. “Confidential Information” means all non-public information disclosed by one party to the other in connection with this Agreement which the disclosing party marks as confidential or which the receiving party should reasonably know to be the confidential information of the other party.
1.4. “End User” means Subscriber’s employees who are authorized to access and use the Software in accordance with this Agreement.
1.5. “Order Form” means the written documentation, once accepted by Goby, that describes Goby’s provision of the Services to Subscriber.
1.6. “Primary Data” means data collected by Goby directly from Subscriber’s service provider invoices.
1.7. “Secondary Data” means all data collected by Goby from sources other than Subscriber’s service provider invoices or utility providers (such as third-party bill pay or data aggregation service providers).
1.8. “Services” means all the services to be provided by Goby to Subscriber as set forth in applicable Order Forms and the Services Description, and includes, for purposes of clarity, the provision of access to and use of the Software.
1.9. “Services Description” means that written document referenced in the applicable Order Form, which describes the Services offered by Goby, as Goby may amend such document from time to time.
1.10. “Software” refers to certain hosted cloud-based solutions provided by Goby that enable automated data collection, provides analytics, reporting, and other functions as may be set forth in the applicable Services Description.
1.11. “Subscriber” means the entity identified in the applicable Order Form as authorized to access and use the Software, as well as that entity’s End Users.
1.12. “Subscriber Data” includes all non-public data collected, used, processed, stored, or generated as the result of Subscriber’s use of the Software and receipt of the Services.
2. Order Forms. Subscriber and Goby will execute one or more Order Forms, each of which will include at a minimum a listing of the Services being ordered and the associated fees. Except as otherwise provided on the Order Form or this Agreement, each Order Form is non-cancellable and will be subject to the terms and conditions of this Agreement.
3. License for Access to and Use of Software.
3.1. Goby hereby grants to Subscriber a limited, revocable, non-exclusive, non-transferable license to use and access the Software solely for Subscriber’s internal business functions, and not on behalf of any third party. Upon launch, Goby will issue user IDs and passwords to Subscriber’s End Users. Subscriber is solely responsible for protecting and controlling the use of its user IDs and password information, which it will not share with any third party. The method and means of providing the Services will be under the exclusive control, management, and supervision of Goby.
3.2. Subscriber may not (a) reverse engineer, dissemble, or decompile any part of the Software, except to the extent required to obtain interoperability with other independently created or procured software or as permitted by law, and in each instance only with Goby’s prior written consent; nor may Subscriber (b) distribute, sell, sub-license, or otherwise transfer any part of the Software except as provided herein. Subscriber agrees that it will not receive any ownership right, title, or interest in the Software, nor any patent, copyright, trade secret, trademark, or other intellectual property rights therein. Goby reserves all rights in the Software and the Services which it does not expressly grant to Subscriber under this Agreement. In no event will Subscriber permit access or use of the Software by a number of End Users in excess of the maximum number of End Users set forth in the applicable Order Form.
4. Term and Termination.
4.1. The term of this Agreement will begin on the date that Subscriber first signs an Order Form, and, unless terminated earlier as permitted in this Agreement, will continue until the expiration of the last effective Order Form entered into under this Agreement.
4.2. Either party may terminate this Agreement for material breach (including nonpayment of amounts due from Subscriber), provided that the nonbreaching party has given the other party at least thirty (30) days’ written notice of and the opportunity to cure the breach, except that in the event of unlawful conduct, fraud, or material misrepresentation by either party, the other party will be entitled to terminate this Agreement immediately. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedy for breach.
4.3. Either party may terminate this Agreement immediately by providing written notice to the other party if the other party becomes insolvent, if a petition in voluntary or involuntary bankruptcy is filed by or against the other party under any chapter of the United States bankruptcy laws and not bonded or discharged within thirty (30) days of the date a receiver or trustee is appointed or if the other party makes an assignment for the benefit of creditors.
4.4. Upon the expiration or termination of this Agreement, provided that Subscriber is not in material breach of this Agreement and has made a written request to Goby within ten (10) days following the effective date of termination, Goby will make available to Subscriber for export a copy of Subscriber Data (defined below) in .CSV format. If Subscriber requires a different format, Goby reserves the right to charge for such extraction formatting. Goby may delete all Subscriber Data after 10 days following the expiration or effective date of termination of this Agreement.
4.5. Upon termination of this Agreement, all licenses to access and use the Software, and to receive the Services, will likewise terminate, and Subscriber will immediately thereafter discontinue all such access and use.
4.6. Any obligations and duties that by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.
4.7. In the event this Agreement is terminated in accordance with this Section 4, Goby is under no obligation to refund any fees paid or provide a credit for services to be performed at a later date provided to the Subscriber.
4.8. Goby may immediately suspend Subscriber’s access to the Software and all related services until payment is received by Goby if payment, or any portion thereof, is past-due by more than ten (10) business days. Such remedies are in addition to any legal or equitable remedies available to Goby.
5. Fees; Billing. Subscriber will pay Goby the fees as further described in the applicable Order Form. All invoices will be due and payable to Goby within thirty (30) days of the invoice. Subscriber agrees to utilize Automated Clearing House (ACH) transactions or an authorized credit card to process invoice payments. If payment by check is required, Goby will impose a $1.50 per check processing fee. Payments more than 30 days overdue are subject to interest of 1.5% per month on any overdue amounts, or the maximum permitted by law, whichever is less.
5.1. Although not expected, pre-approved expenses associated to personnel travel or third-party fees related to the provision of the Services may be invoiced to the Subscriber for reimbursement. Goby will invoice all fees at cost with no mark-up for all such expenses. Goby will invoice the Subscriber within the month Goby incurs the expense. All invoices are due net 30.
5.2. Fees, costs, and expenses described herein or on any Order Form do not include any sales, use, personal property, duty, levy, or similar governance charge, value added or good/services taxes. Goby may include applicable taxes as separate items on Subscriber’s invoice, and Subscriber shall be responsible to pay and/or reimburse Goby for all taxes unless Subscriber has provided adequate evidence of exemption upon execution of this Agreement. If withholding of taxes is required, Subscriber shall remit such taxes in accordance with applicable law, gross up the applicable payment amounts so that Goby receives the full amount of fees invoiced, and provide Goby with applicable evidence of withholding.
6. Disclaimers. EXCEPT AS PROVIDED HEREIN, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. GOBY MAKES NO WARRANTY THAT ACCESS TO THE SOFTWARE OR THE AVAILABILITY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT WILL GOBY BE LIABLE FOR ANY DELAY IN FURNISHING ACCESS TO THE SOFTWARE OR THE AVAILABILITY OF THE SERVICES. SUBSCRIBER’S EXCLUSIVE REMEDY AND GOBY’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH ABOVE WILL BE FOR GOBY TO RESTORE ACCESS TO THE SOFTWARE OR, AS APPLICABLE, RE-PERFORM THE SERVICES.
7. Subscriber Data. Subscriber Data is and will remain the property of Subscriber. Subscriber hereby grants to Goby a nonexclusive, worldwide, fully-paid, royalty free license to use the Subscriber Data to the full extent necessary to provide access to the Software and to perform the Services, including a license to collect, copy, process, modify, store, generate, and display Subscriber Data. Subscriber represents that it has the right to provide Subscriber Data to Goby and will provide Subscriber Data to Goby in compliance with applicable legal requirements, and authorizes Goby to access Subscriber Data to provide quality assurance, perform software maintenance, and deliver customer service and technical support. Further, Subscriber agrees that non-identifying, aggregate site data is essential to Subscriber’s receipt of the Services, and thus hereby grants to Goby a perpetual, worldwide, fully-paid, royalty-free, irrevocable license to use and disclose this anonymous data to improve the Software or Services, develop new solutions, understand actual energy usage and general industry trends, develop white papers, reports, or databases summarizing the foregoing, and generally for any legitimate purpose related to Goby’s current or future business. Goby will not sell, rent, transfer, or otherwise disclose or make available non-public Subscriber Data for the benefit of anyone other than Subscriber without Subscriber’s prior written consent. Goby may, however, make certain offers for relevant ancillary services to Subscriber. This Section will survive the termination of this Agreement.
8. Service Provider Letter of Authorization. Subscriber hereby designates Goby with limited agency authority to act on Subscriber’s behalf to request and gather information pertaining to vendor and supplier services at the properties and locations relating to the Services. This authorization covers and includes the ability to gather documentation and information necessary to understand past and future invoice-related expenses, including, but not limited to:
8.1. Gathering cost and usage history
8.2. Copies of existing or expired contracts for services
8.3. Billing history including historic usage, payment history and invoice copies
8.4. Copies of predominant use studies and similar tax documentation
8.5. ID and Password for online account information pertaining to the above items
8.6. To the extent certain service providers require a unique form or individual letter for this authority to be granted Goby, Subscriber agrees to assist Goby with such paperwork.
9. Third Party Interactions. Subscriber authorizes Goby to access third party websites (such as utility provider websites), on Subscriber’s behalf, to retrieve information requested by Subscriber (each, a “Third Party Website”). For all purposes hereof, Goby will act on behalf of Subscriber as an agent to access Third Party Websites and third-party servers or documents, retrieve information, and use Subscriber’s information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to provide the Services. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT WHEN GOBY ACCESSES AND RETRIEVES INFORMATION FROM THIRD PARTY WEBSITES, GOBY IS ACTING AS SUBSCRIBER’S AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY. Subscriber agrees that Third Party Website providers will be entitled to rely on the foregoing authorization, agency granted by Subscriber. Subscriber understands and agrees that the Service is not endorsed or sponsored by any Third-Party Website providers accessible through the Service. Subscriber acknowledges that through the use of the Service, Goby will have access to Subscriber’s Third-Party Website account credentials, including, but not limited to login username and passwords (such as to access and use an online utility provider account).
10. Implementation and Support. Subscriber agrees to provide to Goby the contact, billing and usage data, and facility information as is required by Goby to support the Software and provide the Services. Subscriber will designate a data contact for each site shown in any Order Form as the person responsible for providing data that is not directly available from Subscriber suppliers. Subscriber acknowledges that inaccurate or out of date data could adversely affect its overall reporting metrics. Goby makes no representation or warranty as to the accuracy of the data it receives, and it will presume all data received is accurate.
11. Subcontractors. Goby may hire or engage one or more subcontractors to perform portions of its obligations under this Agreement. Any subcontractor will, at a minimum, provide for obligations of confidentiality of information, record-keeping, access, rights to data, and performance in accordance with applicable law that are consistent with the intent and terms of this Agreement. Goby will remain liable for the performance of any of its obligations hereunder that it delegates to a subcontractor.
12. Confidentiality. Each party may be exposed to the other party’s Confidential Information in the course of each party’s performance under this Agreement. Each party, on behalf of itself and its employees, contractors and agents (collectively, “Representatives”), agrees not to, except as set forth below or as required by applicable law or regulation, use or disclose Confidential Information during or after the term without the prior written consent of the other party. To protect Confidential Information, each party agrees to: (i) limit dissemination of Confidential Information to only those Representatives with a “need to know” in connection with this Agreement; (ii) advise each Representative who receives Confidential Information of the confidential nature of such information; and (iii) have appropriate agreements, policies and/or procedures in place with such Representatives sufficient to enable compliance with these confidentiality obligations. Nothing in this section will prohibit either party from disclosing Confidential Information to that party’s professional advisors who are bound by a duty of confidentiality at least as restrictive as set forth in this Agreement. Subscriber acknowledges that Goby may receive Confidential Information of Subscriber from the applicable utility and/or supplier, through data collected through the Software or otherwise, which may be used or disclosed by Provider as necessary for performance of this Agreement. This Section will survive termination of this Agreement for a period of two (2) years.
13. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, GOBY WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL GOBY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE, EXCEED THE FEES PAID OR PAYABLE FOR THE SOFTWARE AND SERVICES UNDER THIS AGREEMENT.
14. Relationship Between Subscriber and Goby; Indemnification. In no event will Goby or its affiliates, directors, employees and agents (collectively, the “Goby Indemnified Parties”) be responsible or liable for payment of any service provider invoice of Subscriber or any amount Subscriber may owe to any utility or other supplier. To the fullest extent permitted by law, Subscriber will defend and indemnify, at its own expense, any third-party claim against the Goby Indemnified Parties that arises due to any allegation that the Goby Indemnified Parties are responsible for payment of any invoice of Subscriber or a portion thereof, or any other amounts due by Subscriber to any provider. In connection with the foregoing indemnification obligations, Subscriber will pay reasonable legal fees as incurred and such damages or costs as are incurred by Goby or agreed to in settlement for such claim. The parties agree that Goby is acting as an independent contractor and under no circumstances will any of the employees of Goby be deemed the employees of Subscriber for any purpose. Except as otherwise expressly agreed by the parties, this Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other. Nothing in this Agreement will be deemed to constitute a joint venture or partnership between the parties.
15. Governing Law and Choice of Forum. This Agreement will be governed in all respects by the laws of the State of Illinois as they apply to agreements entered into and to be performed entirely within Illinois between Illinois residents, without regard to conflict of law provisions. Both parties agree that any claim or dispute between them must be resolved exclusively by a state or federal court located in Cook County, Illinois. Both parties agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois for the purpose of litigating all such claims or disputes, and hereby waive all claims of forum non conveniens.
16. Ownership of Feedback and Suggestions. If Subscriber provides Goby with any suggested improvements to the Software or the Services (“Suggestions”), then Subscriber also hereby assigns to Goby all right, title and interest in and to all intellectual property rights associated with or embodied within such Suggestions, regardless of whether Subscriber has designated the Suggestions as Confidential Information.
17. Further Assurances and Actions. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action will not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances so each party may properly accomplish its obligations and responsibilities hereunder.
18. Force Majeure. Goby will not be liable for delays or any failure to provide the Software or perform the Services due to causes beyond its reasonable control. Performance times will be considered extended for a period of time equivalent to the time lost because of such delay.
19. No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement will in no way affect that party’s right to enforce such provisions, nor will the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
20. Assignment. Subscriber may not assign its rights or delegate its obligations under this Agreement without Goby’s prior written consent. Goby may assign its rights or delegate its obligations under this Agreement. Any purported assignment in violation of this section will be void.
21. Notices. Any notice given in accordance with this Agreement will be in writing and will be given by either (a) personal service; (b) United States certified mail, return receipt requested, postage prepaid to the addresses appearing in the Order Form; or (c) email notification, provided that recipient confirms receipt via return email. Notice given by personal service will be deemed effective on the date it is delivered to the addressee, and mailed notice will be deemed effective on the third day following its placement in the mail addressed to the addressee.
22. Entire Agreement. This Agreement and its Attachments constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Subscriber and Goby as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties.