Master Subscription Agreement
Transparency and fairness are integral to who we are as a company. We want to ensure that every aspect of your experience with Pave reflects this, including our legal terms.
This Master Subscription Agreement (this “Agreement”) is by and between the customer (“Customer” or “you”) and Trove Information Technologies, Inc. dba Pave (“Pave” or "we") and is effective as of the date you and Pave sign an Order Form or you commence using the Products (each as defined below) (the "Effective Date"). Customer and Pave are each a “party” and together the “parties”. Use of the Products is governed by this Agreement.
1. Access to the Products
1.1 Pave’s Products
Pave offers a full suite of products (the “Products”) that allow our customers to plan, communicate and benchmark compensation in real-time (without spreadsheets), including Total Rewards, Visual Offer Letter, Compensation Planner and Team View, as well as our compensation benchmarking Product (the “Benchmarking Product”). The Products purchased by Customer are described in the order form(s) executed by you and Pave (each, an “Order Form”). The Benchmarking Product may be set forth on an Order Form, but you may use our Benchmarking Product without executing an Order Form, subject to Sections 1.2(ii) and 2 below.
1.2 Access to the Products
Subject to (a) the terms and conditions of this Agreement and, if applicable, the Order Form and (b) your payment for the applicable Products, Pave grants Customer a non-exclusive, limited, non-sublicensable, non-transferable right and license to internally access and use:
- The Products described on each Order Form for the applicable Order Form Term (as defined below); and
- The Benchmarking Product for so long as Customer has integrated its compensation platform or provider with the Products (as further described in Section 2 below).
2. Third-Party Integrations
2.1 Integrations with Customer’s Vendors
The Products are powered by real-time integrations with Customer’s third-party vendors that provide your HR services (ex. HRIS, compensation and equity management platforms) (the “Third-Party Integrations”). These Third-Party Integrations are facilitated through application programming interfaces (APIs) and/or other means of integrating with the Products.
2.2 Third-Party Integrations Required
Use of the Products is contingent on Pave’s ability to access the Third-Party Integrations provided by Customer. Customer understands that its failure to provide adequate access and/or permissions to your Third-Party Integrations may result in a suspension or interruption of access to the Products. Given that the Benchmarking Product contains benchmarking data from a wide array of companies and is based on a “give to get” model, Pave requires that all customers accessing and/or using the Benchmarking Product have an active integration between the Products and Customer’s compensation Third-Party Integration.
2.3 Permissions to Integrate
Customer 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 Products. Pave cannot and does not guarantee that the Products will incorporate (or continue to incorporate) any particular Third-Party Integration and does not make any representations or warranties with respect to any Third-Party Integration. Pave is not responsible for (i) the operation of any Third-Party Integration, (ii) the availability or operation of the Products to the extent such availability or operation is dependent on any Third-Party Integration or (iii) any disclosure, modification, deletion, loss or unauthorized use of Customer Data (as defined below) resulting from any Third-Party Integration.
Pave offers standard implementation assistance, as set forth on the applicable Order Form, to get you up and running with the Products. If Customer requires custom or additional implementation assistance beyond Pave’s standard implementation assistance, Pave will provide notice to Customer and, if mutually agreed between Pave and Customer, Customer will be responsible for paying Pave for such additional assistance.
4. Support; Service Levels
Pave provides standard support services and service level terms, each of which are described at www.pave.com/service-terms.
Unless otherwise provided on an Order Form, (i) Customer will pay all fees set forth on such Order Form (“Fees”) within thirty (30) days of receipt of the applicable invoice and (ii) all Fees are payable and will be invoiced annually in advance. All Fees are in USD and do not include any taxes that may apply, including but not limited to any sales, use, value-added, withholding, GST, VAT or similar taxes or levies. Any such taxes are the responsibility of Customer. All purchases of subscriptions to the Products are non-cancelable and all Fees are non-refundable. 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. Pave reserves the right to change the Fees and to institute new Fees at the end of the Initial Order Term or then-current Renewal Order Term (each as defined below) upon thirty (30) days’ prior notice to Customer (which may be sent by email), which new Fees will be effective for the then upcoming Renewal Order Term.
6. Ownership of the Products; Feedback
6.1 Pave’s Rights
As between the parties, Pave retains all right, title and interest in and to the Products, and all software, products, works and other intellectual property and moral rights related thereto or created, used or provided by Pave for the purposes of this Agreement, including any copies and derivative works of any of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.
From time to time, Pave may provide upgrades, patches, enhancements or fixes for the Products without additional charge (“Updates”). Updates will become part of the Products and subject to this Agreement. Pave provides Updates in its sole discretion and has no obligation to provide any Updates.
Customer may from time to time provide suggestions, comments or other feedback to Pave regarding the Products (“Feedback”). Pave will own and have the unrestricted right to use the Feedback in any way, including incorporating Feedback into the Products or other Pave offerings.
7. Customer Data
7.1 Ownership of Customer Data
As between the parties, Customer retains all right, title and interest in and to the Customer Data, including all intellectual property rights therein and including any copies and derivative works of any of the foregoing, subject to Sections 6.3, 7.3 and 7.4. For purposes of this Agreement, “Customer Data” means any data, information or other material provided, uploaded or submitted by Customer to the Products.
7.2 Customer’s Responsibilities for Customer Data
Customer, not Pave, has 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 has taken all steps (including obtaining any consents and providing any notices) that are legally required for it to instruct Pave to process the Customer Data as set forth in this Agreement (including, as applicable, the DPA (as defined below)), 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 Pave that is considered (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, (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 (except ethnicity), 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.
7.3 Pave’s Use of Customer Data
Pave uses Customer Data as set forth in this Agreement. Pave’s use of Personal Data is described in more detail in Pave’s data processing addendum (“DPA”), available at www.pave.com/data-processing-addendum, which 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. Customer agrees that Pave may collect, use, retain and disclose Personal Data as described in the DPA. Any terms not defined in this paragraph will have the meanings given to them in the DPA.
7.4 Aggregated and De-Identified Data
As part of the Products, particularly the Benchmarking Product, Pave utilizes data submitted to, collected by, or generated by Pave in connection with Customer’s use of the Products, but only in de-identified form, from which individual identifiers have been removed, and aggregated form, such that it can in no way be linked specifically to Customer or Customer’s employees (“Aggregated and De-Identified Data”). Customer acknowledges and agrees that (i) Pave may internally use and modify (but not disclose) Customer Data for the purposes of generating Aggregated and De-Identified Data and (ii) Pave may freely use, make available and retain Aggregated and De-Identified Data for Pave’s business purposes (including, without limitation, for purposes of improving, testing, operating, promoting and marketing the Products and Pave’s offerings).
8. Restrictions; Compliance with Laws
8.1 Use Restrictions
Customer shall not (and shall not permit its employees or 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 Products, (ii) modify, copy, translate or create derivative works based on the Products, (iii) rent, lease, distribute, assign or otherwise transfer or encumber rights to the Products, (iv) use the Products for the benefit of a third party, (v) use the Products to build or improve anything competitive with any of the Products or Pave offerings, (vii) interfere or attempt to interfere with the proper working of the Products or any activities conducted on the Products, (viii) bypass any measures Pave may use to prevent or restrict access to the Products (or networks connected to the Products) or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion thereof relating to the Products (or any information made available through the Products), whether through manual or automated means. Customer is responsible for all of Customer’s activity in connection with the Products, including, but not limited to, uploading Customer Data onto the Products.
8.2 Compliance with Laws
Both of Pave and Customer agree that they will comply with all applicable local, state, national and foreign laws, treaties and regulations (including those related to data privacy and export) applicable to their respective obligations under this Agreement.
9.1 Confidentiality Obligations
During the term of this Agreement, either party may disclose or make available (“Disclosing Party”) to the other party (“Receiving Party”), whether orally, electronically or in physical form, confidential information concerning Disclosing Party and/or its business, technology, products or services that is marked or identified as “confidential” or “proprietary” at the time of disclosure or disclosed in such a manner or is of such a nature that a reasonable person would understand such information to be confidential (“Confidential Information”). Customer Data is Customer’s Confidential Information and Aggregated and De-Identified Data is Pave’s Confidential Information. Each party agrees that during the term of this Agreement and thereafter: (i) it will use Disclosing Party’s Confidential Information solely for the purposes of this Agreement and (ii) it will not disclose Disclosing Party’s Confidential Information to any third party (other than Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations consistent with those contained herein) without first obtaining Disclosing Party’s prior written consent. Upon request by Disclosing Party, Receiving Party will return or destroy Disclosing Party’s Confidential Information.
Confidential Information will not include any information that: (i) is or becomes generally known, through no act or omission of Receiving Party, (ii) was previously known by Receiving Party without restriction, (iii) is disclosed to Receiving Party by a third party without restriction and without breach of any separate nondisclosure obligation or (iv) was independently developed by Receiving Party without use of or reference to any of Disclosing Party’s Confidential Information. Receiving Party may disclose Disclosing Party’s Confidential Information to the extent it is legally compelled to do so; provided that prior to any such disclosure, Receiving Party will, to the extent legally permitted, (a) promptly notify Disclosing Party of such requirement to disclose and (b) cooperate with Disclosing Party, at Disclosing Party’s expense, in protecting against or minimizing any such disclosure or obtaining a protective order.
Receiving Party acknowledges and agrees that: (i) unauthorized disclosure or use of Disclosing Party’s Confidential Information may cause Disclosing Party irreparable harm and significant injury, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at law and (ii) Disclosing Party, without limitation, shall have the right to seek immediate injunctive or other equitable relief enjoining any breach or threatened breach hereof, without posting bond or other security and without proving actual damages.
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
Pave agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data. If Pave becomes aware that any Customer Data held by Pave has been accessed by a third party without authorization or otherwise illegally hacked (a “Breach”), Pave 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. Term; Termination; Suspension
The term of this Agreement will commence on the Effective Date and continue until all subscriptions have expired or been terminated (or, in the case of the Benchmarking Product, Customer has ceased use thereof), unless earlier terminated as set forth herein. Except as may be otherwise set forth on an Order Form, (i) the initial term of each Order Form shall be twelve (12) months (the “Initial Order Term”) and (ii) the Order Form shall automatically renew for additional one (1) year periods (each a “Renewal Order Term” and, together with the Initial Order Term, the “Order Form Term”), unless either party requests termination in writing at least thirty (30) days prior to the end of the Initial Order Term or then-current Renewal Order Term, as applicable.
In the event Customer breaches Sections 5 (Fees) or 8 (Restrictions; Compliance with Laws), Pave may suspend or limit Customer’s access to or use of the Products; provided however that Pave (i) will use commercially reasonable efforts to work with Customer to resolve the issue prior to such suspension or limitation if practicable under the circumstances and (ii) will reinstate Customer’s use of or access to the Products as soon as reasonably practicable.
Either party may terminate this Agreement or any Order Form if the other party materially breaches this Agreement or the applicable Order Form and the breaching party fails to cure such breach within thirty (30) days after receipt of written notice of the breach. If this Agreement or an Order Form is terminated due to Pave’s material breach, Pave shall promptly refund to Customer any pre-paid Fees for subscriptions that would have been provided after the date of termination. If this Agreement or an Order Form is terminated due to Customer’s material breach, Customer will pay Pave in full all Fees, if any, owing for the remainder of the Order Form Term and shall not be entitled to any refunds of pre-paid Fees.
11.4 Effect of Expiration or Termination
Upon expiration or termination of this Agreement, all Order Forms shall also terminate and Customer must stop using the Products. In addition, upon such expiration or termination, Pave 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. The following sections will survive expiration or termination of this Agreement: 1 (Access to the Products), 5 (Fees), 6 (Ownership of the Products; Feedback), 7 (Customer Data), 8 (Restrictions; Compliance with Laws), 9 (Confidentiality), 11 (Term; Termination; Suspension), 12 (Indemnification), 13 (Disclaimer), 14 (Limitation of Liability) and 15 (General Provisions).
12.1 Indemnification by Pave
- Pave shall defend at its sole expense and indemnify Customer, its affiliates and each of its and its affiliates’ employees, directors and representatives from all third party actions, claims and proceedings and pay all damages, liabilities and expenses that are finally awarded in a judgement or agreed to in a settlement (“Losses”) that arise from or relate to any claim that any Product infringes, violates or misappropriates any third party intellectual property or proprietary right.
- The foregoing obligations of Pave do not apply with respect to the Products or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (a) not created or provided by Pave, (b) made in whole or in part in accordance with Customer specifications, (c) modified after delivery by Pave, (d) combined with other products, processes or materials not provided by Pave, where the alleged Losses would not have occurred but for such combination, (e) Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement or (f) Customer’s use of the Products is not strictly in accordance herewith.
12.2 Indemnification by Customer
Customer shall defend at its sole expense and indemnify Pave, its affiliates and each of its and its affiliates’ employees, directors and representatives from all third party actions, claims and proceedings and pay all Losses that arise from or relate to (a) any claim that the Customer Data infringes, violates or misappropriates any third party intellectual property or proprietary right or (b) Customer’s use of any Third Party Integrations in connection with or through the Products.
12.3 Indemnification Procedures
Each party’s indemnification obligations hereunder shall be conditioned upon the other party as indemnitee providing the indemnifying party with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the indemnifying party of its indemnity obligations if the indemnifying party is materially prejudiced thereby), (b) sole control over the defense and settlement of any claim, provided that the other party as indemnitee may participate in such defense and settlement at its own expense and provided further that the indemnifying party shall not agree to a settlement for anything other than monetary damages without the consent of the indemnitee and (c) reasonable information and assistance in connection with such defense and settlement, at the indemnifying party’s expense.
EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND ANY RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER 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. WITHOUT LIMITING THE FOREGOING, PAVE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PRODUCTS WILL BE SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS.
14. Limitation of Liability
14.1 Waiver of Consequential Damages
IN NO EVENT SHALL EITHER PARTY, OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS OR PARTNERS, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, REGARDLESS OF THE NATURE OF THE CLAIM AND EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Liability
IN NO EVENT SHALL EITHER PARTY, OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS OR PARTNERS, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND REGARDLESS OF THE NATURE OF THE CLAIM, FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (AND PAYABLE) BY CUSTOMER TO PAVE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
THIS SECTION 14 SHALL NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS IN SECTION 5 (FEES) OR A PARTY’S OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION) HEREOF.
15. General Provisions
15.1 Complete Agreement; Amendment
This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals of any kind (whether oral, written or electronic) between the parties with respect hereto. Any inconsistent or additional terms not expressly incorporated herein shall have no effect under this Agreement. Pave may modify this Agreement or any of its components by updating this Agreement on www.pave.com. Use of the Products after alteration of this Agreement will constitute acceptance by Customer of such changes.
15.2 Governing Law and Venue
This 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.
Neither party may assign this Agreement, or its rights or obligations hereunder, without the other party’s prior written consent; provided that either party may assign this Agreement and all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a merger, reorganization, sale of all or substantially all of such party’s assets, change of control or operation of law.
All notices delivered by Pave to you under this Agreement will be delivered via email or regular mail to the contacts set forth on the applicable Order Form. Notices to Pave under this Agreement should be sent by email to email@example.com or by first class mail to Trove Information Technologies, Inc. dba Pave, 1 Montgomery St., Suite 700, San Francisco, CA 94104, Attention: Legal.
15.5 Force Majeure
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, fire; flood; earthquake; denial of service attacks; pandemics; Internet failures; acts of war; labor disruptions; or any laws, acts or restraints of any government or governmental authority.
15.6 Independent Contractors; No Third-Party Beneficiaries
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. There are no third-party beneficiaries under this Agreement.
15.7 Invalidity; Waiver
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be modified 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.