Pave Master Service Agreement

PLEASE READ THIS MASTER SERVICE AGREEMENT (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY TROVE INFORMATION TECHNOLOGIES, INC. (“COMPANY”).  BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS.  IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA COMPANY’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY CUSTOMER SHALL BE DEEMED TO BE MUTUALLY EXECUTED.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Order Forms; Access to the Service

Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement.  In the event of any conflict between this Agreement and an Order Form, the Order Form shall control but only with respect to the particular Services purchased through such Order Form. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement, Company grants Customer a nonexclusive, limited, personal, non -sublicensable, non-transferable right and license to internally access and use the services specified in such Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Company’s applicable official user documentation for such Service (the “Documentation”). Furthermore, Customer understands and agrees that access and use of the Company’s Benchmarking service shall be conditioned on the Company’s continued access to Customer’s compensation platform or provider.

2. Implementation

In the event that Customer requires any standard or custom implementation assistance or services to be performed by Company in connection with the Service, a description of such assistance or services (“Implementation Assistance”) and the fees for such Implementation Services shall be set forth on such Order Form.  If Company provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Company otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Company at its then-current hourly rates for consultation.

3. Support; Service Levels

Subject to Customer’s payment of all applicable fees, Company will provide support and uptime for each Service in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) Company’s Service Level Terms at www.pave.com/service-terms, which may be amended from time to time by Company with notice to Customer.

4. Service Updates

From time to time, Company may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Company shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Company may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Company shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes that materially detrimentally affect the functionality of the Service.

5. Ownership; Restrictions; Feedback

As between the parties, Company retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Company for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement.  No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.  Customer may from time to time provide suggestions, comments or other feedback to Company with respect to the Service (“Feedback”).  Notwithstanding anything else, Customer shall, and hereby does, grant to Company a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.  Nothing in this Agreement will impair Company’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.

6. Fees; Payment

Unless otherwise set forth on an Order Form, Customer will pay all fees set forth on each Order Form (“Fees”) within thirty (30) days of receipt of the applicable invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Unless otherwise set forth on an Order Form, all Fees are payable and will be invoiced annually in advance. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after receipt of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.

7. Restrictions

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Company product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Company may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service (or any information, data or content made available through the Service ), whether through use of manual or automated means, or (x) use the Service in a manner that violates applicable laws or regulations. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service.  Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.

8. Customer Data

For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service.  Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein.  Customer, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights and consents necessary to use and provide the Customer Data to Company as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Customer agrees that it shall not provide any information to Company that is considered (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless Customer has entered into a separate agreement with Company relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, drivers’ license numbers or other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (v) “sensitive” personal data, as defined under the European Union’s General Data Protection Regulation or any other applicable data privacy law, including political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life or the commission or alleged commission any crime or offense. 

Notwithstanding anything to the contrary, Customer acknowledges and agrees that Company may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Service to Customer, (B) testing, improving and operating Company’s products and services, and (C) generating Aggregated De-Identified Data (as defined below), and (ii) freely use, make available and retain Aggregated De-Identified Data for Company’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Company’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Company in connection with Customer’s use of the Service, but only in aggregate form, from which individual identifiers have been removed and can in no way be linked specifically to Customer or Customer’s employees. The Company’s De-Identified and Aggregated Data Policy is provided here https://www.pave.com/security-and-policies#de-identified-and-aggregated-data-policy. 

9. Confidentiality

During the term of this Agreement, from time to time, either party may disclose (the “Disclosing Party”) or make available to the other party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, technology, products or services in connection with this Agreement that is marked or otherwise identified as “confidential” or “proprietary” at the time of disclosure or disclosed in such a manner or of such a nature that a reasonable person would understand such information to be confidential or proprietary (“Confidential Information”). Each party agrees that during the term of this Agreement and thereafter: (a) it will use Confidential Information belonging to the Disclosing Party solely for the purposes of this Agreement; and (b) it will not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use consistent with those contained herein) without first obtaining the Disclosing Party’s prior written consent. Upon request by the Disclosing Party, the Receiving Party will return to the Disclosing Party or destroy any Confidential Information.

Confidential Information will not include any information that: (a) is or becomes generally known in the industry, through no act or omission on the part of the Receiving Party; (b) was previously known by the Receiving Party without restriction; (c) is disclosed to the Receiving Party by a third party without breach of any separate nondisclosure obligation; or (d) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party.

Nothing herein will prevent the Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the Receiving Party will, to the extent legally permitted, use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in protecting against or minimizing any such disclosure or obtaining a protective order.

The terms in this Section 9 will not apply to any Breach (as defined in Section 10 below).  Breaches will be governed exclusively by the terms in Section 10.

10. Data Security

Company agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Data, as further described in the Company’s then current Information Security Policy. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use.  Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. If Company becomes aware that any Customer Data held by Company has been accessed by a third party without authorization or otherwise illegally hacked (a “Breach”), Company will, to the extent legally permitted, notify Customer as soon as reasonably practical and will reasonably cooperate with Customer to remediate the unauthorized access.

11. Processing of Personal Data of EU Data Subjects

To the extent that, in connection with the Services, Customer provides any Customer Data that contains “Personal Data” from a European “Data Subject” that is subject to the European Union’s General Data Protection Regulation, Company’s data processing addendum (“DPA”) available at www.pave.com/data-processing-addendum shall apply. The DPA is hereby incorporated into this Agreement by reference. The subject matter, nature, purpose and duration of processing, as well as the types of Personal Data collected and categories of Data Subjects, are set forth in the DPA. Any terms not defined in this paragraph will have the meanings given to them in the DPA.

12. California Consumer Privacy Act

The parties acknowledge and agree that Company is a service provider for the purposes of the California Consumer Privacy Act (“CCPA”) and is receiving personal information from Customer pursuant to this Agreement for a business purpose.  Company will not sell any such personal information.  Company will not retain, use or disclose any personal information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of providing access to the Services for Customer pursuant to this Agreement, or otherwise as set forth in this Agreement or as permitted by the CCPA.  The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA.

13. Term; Termination

The term of this Agreement will commence on the Effective Date and continue until terminated as set forth herein, provided that this Agreement shall not be terminated before the later of (i) the termination or expiration of all Order Forms, and (ii) the termination of Customer’s use or access to the Service (the “Term”).  Except as may be otherwise set forth on an Order Form, (a) the initial term of each Order Form shall be twelve (12) months (the “Initial Services Term”), and (b) the Order Form shall automatically renew for additional one (1) year periods (the “Renewal Service Term”), unless either party requests termination in writing at least thirty (30) days prior to the end of the Initial Service Term or then-current Renewal Service Term, as applicable. 

In addition to any other remedies it may have, either party may terminate this Agreement or any Order Form upon at least thirty (30) days’ written notice if the other party materially breaches any of the terms or conditions of this Agreement and the breaching party fails to cure such breach within the notice period. Customer will pay in full for the Services provided prior to termination.  Company shall promptly refund to Customer any Fees pre-paid for Services that would have been provided after the date of termination. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days and provide reasonable assistance in the retrieval of Customer Data by Customer as Customer requests and at the Customer’s expense. 

Without limiting the foregoing, Company may suspend or limit Customer’s and Customer affiliates’ access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Company’s ability to provide access to the Service to other customers; provided that, with respect to the foregoing subsection (ii): (a) Company shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Company shall provide prompt written notice to Customer describing the nature of the damage or degradation; and (c) Company shall reinstate Customer’s and Customer affiliates’ use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.  

All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. 

14. Indemnification

Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor), or (ii) the Service (in the case of Company as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right.  Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).  The foregoing obligations of Company do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Company (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Company, (iv) combined with other products, processes or materials not provided by Company (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.

15. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

16. Limitation of Liability

EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO COMPANY HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

17. Third Party Integrations

Customer acknowledges and agrees that: (i) the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (e.g., other vendors of Customer) (“Third Party Integrations”); and (ii) the availability and operation of the Services or certain portions thereof may be dependent on the Company’s ability to access certain Third Party Integrations provided by the Customer (including with certain third-party HR, payroll and compensation services and platforms), and Customer’s failure to provide adequate access or any retraction of permissions relating to such Third Party Integrations may result in a suspension or interruption of the Service. Customer hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Third Party Integrations that it integrates with the Service, and Customer shall indemnify, defend and hold harmless the Company for all claims, damages and liabilities arising out of Customer’s use of any Third Party Integrations in connection with or through the Service. Company cannot and does not guarantee that the Service shall incorporate (or continue to incorporate) any particular Third Party Integrations and does not make any representations or warranties with respect to Third Party Integrations. Company is not responsible for the operation of any Third Party Integrations, nor the availability or operation of the Service to the extent such availability and operation is dependent on Third Party Integrations.

18. Miscellaneous

This Agreement represents the entire agreement between Customer and Company with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Company with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Company may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.  The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.