Master Services Agreement
THIS MASTER SERVICES AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BETWEEN THE SYMEND ENTITY NOTED BELOW IN SECTION 13 AND YOUR ORGANIZATION (THE “CLIENT” OR “YOU”) AS OF THE EFFECTIVE DATE. BY CLICKING “AGREE” (OR ITS EQUIVALENT), ACCEPTING THIS AGREEMENT, SIGNING AN ORDER FORM, OR USING THE SYMEND SERVICES, YOU AGREE AND ACCEPT THE TERMS OF THIS AGREEMENT, WHICH BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND SYMEND.
Capitalized terms have the following meanings:
“Affiliate”: A company controlled by, under common control with or controlling a party during the period of such control.
“Agreement”: The terms of this Master Services Agreement, Order Form and associated documents entered into by Client and Symend.
“Artifacts”: Documents or mock-ups of visual communications (e.g. emails or web pages).
“Client”: The individual accepting this Agreement in order to use the Symend Services or if using on behalf of an organization, then that organization and the individual accepting this Agreement represents that he or she has the authority to bind such organization to this Agreement.
“Client Data”: Any data, information or material submitted by Client, or stored by Client in the Symend Platform. For clarity, Client Data does not include non-identifiable (anonymized) aggregate data compiled by Symend.
“Confidential Information”: Information that one party (the “Disclosing Party”) provides to the other party (“Receiving Party”) that is identified in writing at the time of disclosure as confidential or that reasonably would be understood to be confidential given the nature of the information or the circumstances of its disclosure.
“Effective Date”: The last date this Agreement is executed or the first date of Client’s access or use of the Symend Services in any manner, as applicable.
“Intellectual Property Rights”: Rights under patents and applications thereto, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property and proprietary rights, including rights under common law.
“Malicious Code”: Viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
“Modifications”: Any work that modifies the Symend Services by Symend or a third-party, including to modify, add, or discontinue the Symend Services, at any time, for any reason.
“Order Form”: An ordering document specifying the Services to be provided hereunder that is entered into between Client and Symend or any of its Affiliates, including any addendum and supplements thereto. By entering into an Order Fo m hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Party”: Either the Client or Symend, as the case may be, and “Parties” shall mean both collectively.“Professional Services”: Any consulting services or other services set out in an Order Form or other document as mutually agreed to by Symend and Client.
“Reseller Partner”: An authorized reseller, distributor or other partner of Symend.
“Symend Platform”: Service through which Symend hosts and makes available software, Artifacts, data analytics and campaign content provided by Symend to automate debt recovery activities, and such additional product offerings as Symend may provide from time to time.
“Symend Services” or “Services”: Collectively the provision of the Symend Platform, Professional Services, and any other service as agreed to by the parties.
“Third-Party Materials”: materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment orcomponents of or relating to the Services that are not proprietary to Symend.
“User”: You the Client if acting as an individual or if accepting this Agreement for an organization, the individual employee, contractor or agent of Client authorized by Client to use the Symend Platform.
2. Platform Services
(a) Subject to the terms and conditions of this Agreement, Symend will make the Symend Platform available to Client through a web-based platform in accordance with the number of permitted seats as stated in an applicable Order Form. Client will: (i) be responsible for all Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Client Data and the means by which it acquires and uses such Client Data; (iii) use the Symend Platform and the Artifacts only in accordance with this Agreement, the applicable documentation and applicable law (including export, data protection and privacy laws, and laws relating to electronic messages); (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Symend Platform; (v) be responsible for ensuring that its processes, business rules, operations, and plans regarding its outreach (the “Outreach Plans”) complies with all applicable law and acknowledges that Symend is not obligated, nor has it taken or will take, any action with respect to the Outreach Plans to ensure it complies with all applicable law; and (vi) notify Symend in writing immediately of: (A) any unauthorized use of, or access to, the Symend Platform, or (B) any notice or charge of noncompliance with any applicable law, rule or regulation asserted or filed against Client in connection with Client Data.
(b) Client, and any third-parties acting on behalf of or for Client, will not, directly or indirectly: (i) resell, rent, distribute, market, commercialize or otherwise transfer rights or usage to the Symend Services or any modified version or derivative work of the Symend Platform created by or for Client; (ii) attempt or knowingly permit or encourage others to attempt, to translate, decompile, decipher, disassemble, reverse engineer or otherwise decrypt or discover the source code or otherwise replicate the functionality of all or any portion of the Symend Services; (iii) copy any features, functions, user interfaces, look and feel or graphics of the Symend Platform; (iv) send, store or spam unlawful, infringing, obscene or libelous material, or Malicious Code; (v) attempt to gain unauthorized access to, or disrupt the performance of the Symend Platform; (vi) use any property of Symend contained in or accessible through the Symend Platform for the purpose of building or enabling a third party to build a competitive product or service; (vii) use the Symend Platform, or permit it to be used, for the purposes of product benchmarking or other analysis or evaluation intended for publication, without Symend’s prior written consent; (viii) modify, adapt, translate, or create derivative works based on the Symend Platform, or (ix) use in any manner in contravention of applicable law.
(c) Symend reserves the right to make Modifications to the Symend Services at its sole discretion. Symend will use commercially reasonable efforts to notify Client of any such Modifications to the Symend Platform. However, Symend reserves the right to make Modifications without such notice if needed to comply with law, protect or enforce legal rights, or otherwise to address or prevent an emergency. Symend will provide updates to Client’s instance of the Symend Platform from time to time.
(d) Symend reserves the right to suspend the Symend Services immediately upon notice to Client if Symend, acting reasonably and in good faith, believes that Client has violated this Agreement, harm or damages has or will occur due to Client data being incorrect, incomplete, or misleading, or to continue to provide the Symend Services constitutes or will constitute harm to Client, Symend, or any third party.
3. Use of Third-Party Materials
(a) Client acknowledges and agrees that the Symend Services depend on Third-Party Materials and that, notwithstanding any other provision in this Agreement, Client acknowledges the requirement to accept the applicable Third-Party Materials license agreement. Symend is not and will not be responsible for any failure, malfunction, or other deficiency in respect to the Symend Services to the extent that it is caused by or related to Third-Party Materials (in each case a “Third-Party Failure”) or losses arising therefrom. For the avoidance of doubt, Symend’s indemnification obligations under Section 11(b) do not include Third-Party Failures or any losses arising therefrom.
4. Professional Services & Support Services
(a) Symend will perform Professional Services, including services to implement the Symend Platform for Client, if any, and services to manage the Client’s use of the Symend Platform, if any, in accordance with the Order Form. Symend warrants the Professional Services will be performed in a good and workmanlike manner. As Client’s sole remedy and Symend’s entire liability for any breach of the foregoing warranty set forth in this Section 4(a), Symend will, at its sole option and expense, promptly re-perform the non-conforming Professional Services.
(b) During the applicable Term, Symend may provide certain support services in accordance with Symend’s then-current support policy, and as identified in any applicable Order Form. In the event that the level of support is not identified in any Order Form, Client shall receive the standard support level that is included in the Symend Service at no additional cost, as described at www.symend.com/service-levels
5. Client Affiliates & Symend Reseller Partners
(a) Client Affiliates may purchase and use the Symend Services subject to the terms of this Agreement by executing an Order Form hereunder that incorporates by reference the terms of this Agreement, and in each such case, all references in this Agreement to Client shall be deemed to refer to such Client Affiliate for purposes of such Order Form. The Customer Affiliate agrees to be bound by this Agreement and the applicable Order Form executed by such Customer Affiliate.
(b) This Agreement specifies the terms and conditions under which the Symend Services will be provisioned by Symend to Client, whether purchased directly through Symend or indirectly through a Reseller Partner. Purchases through a Reseller Partner will be placed through a separate agreement or ordering document between the Client and Reseller Partner, which may address, amongst other items, terms and conditions relating to the quantity of products and services purchased (“Reseller Sales Agreement”). As the Reseller Sales Agreement is between Reseller Partner and Client, any dispute relating to the Reseller Sales Agreement shall be handled directly between Customer and the Reseller Partner. In the event of any conflict between this Agreement and the Reseller Sales Agreement, this Agreement shall govern as between Symend and Client.
6. Proprietary Rights and Data Management
(i) Except as expressly stated in this Agreement, Symend, and the respective rights holders in the Third-Party Materials, retains all right, title, and interest in the Symend Platform, Third-Party Materials, and Artifacts, including any derivative works. No Intellectual Property Rights related to the Symend Platform and Artifacts are granted to the Client under this Agreement, whether expressly or implicitly. Symend’s name, logo, and trademarks are owned by Symend, and no right is granted to the Client without the written consent of Symend.
(ii) Clients or their Users may provide suggestions, enhancements, feature requests, or other feedback regarding the Symend Platform (collectively referred to as “Feedback”). Feedback, even if designated as confidential, will not impose confidentiality obligations on Symend. Symend has the freedom to use, disclose, reproduce, license, or distribute Feedback at its discretion, without any restrictions or obligations.
(b) Client Data/Business Information:
(i) The Client retains all right, title, and interest in the Client Data. Except for the licensed right to use Client Data for providing Symend Services and fulfilling obligations under this Agreement, no Intellectual Property Rights related to Client Data are granted to Symend, whether expressly or implicitly.
(ii) The Client’s name, logo, and trademarks are owned by the Client. The Client grants Symend a non-exclusive right, during the term of this Agreement, to use its name, logos, and other trademarks solely for the purposes specified in Section 13(L) and for providing the Symend Services. No right is granted to Symend except as explicitly permitted herein or with the written consent of the Client.
(iii) The Client grants Symend the right to use, access, and process Client Data for various purposes, including providing Symend Services to clients, investigating fraud, improving the Symend Platform, and complying with applicable laws. Symend may also aggregate and anonymize Client Data (“Aggregated Data”) for research and development, internal business purposes, and product or service benchmarking. Aggregated Data is not considered Client Data.
(c) Security Measures:
Symend is committed to maintaining commercially reasonable security measures in line with industry standards. These measures apply to Symend’s facilities, employees, representatives, contractors, and other aspects related to this Agreement, including the implementation of physical, administrative, and technical safeguards, security measures, and access controls. Additional details can be found at https://www.symend.com/security, which may be periodically updated.
(a) Payment of Fees:
Client agrees to pay all fees in accordance with the terms specified in the Order Form.
(b) Invoice Payment and Overdue Amounts:
Invoices are typically payable within 30 days of issuance, which usually occurs upon the execution of an Order Form. In the case of renewals, an invoice for the renewal term will be issued within 90 days after the expiration of the applicable term. All fees are non-refundable. Overdue amounts will accrue interest at a rate of two percent per month (24% per year) or the maximum rate permitted by applicable law, whichever is lower. If any charges owed by the Client to Symend are overdue by 30 days or more, Symend, in addition to its other rights and remedies, may suspend the Client’s access to the Symend Platform until such amounts are paid in full.
(c) Tax Responsibilities:
The Client is responsible for paying all federal, state, and provincial sales, use, and goods and services taxes applicable to the fees and charges paid under this Agreement, except for Symend’s income taxes. Symend’s invoices will separately itemize any such taxes.
8. Term and Termination
(a) Agreement Duration:
This Agreement remains effective for a period specified in an Order Form or, in the absence of such a specified term, for an initial period of two (2) years (referred to as the “Initial Term”). This Agreement automatically renews annually for additional one (1) year terms unless terminated as per the terms outlined herein. Termination of this Agreement does not automatically terminate any active Order Form, unless otherwise agreed upon by both parties within the Order Form. Each Order Form remains in effect for the duration specified in the document, with the terms of this Agreement incorporated.
(b) Termination by Client or Symend:
After the Initial Term, either party may terminate this Agreement under the following conditions:
(i) By providing written notice to the other party of its intention not to renew, with a notice period of not less than 60 days before the expiration of the then-effective term.
(ii) In case of a material breach of obligations under this Agreement, provided that the breach remains unremedied for 30 days following receipt of written notice of the breach.
(iii) If a party becomes subject to a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
(c) Consequences of Termination:
Upon termination of this Agreement, Symend may promptly deactivate the Client’s access to the Symend Platform. Symend may retain copies of Client Data for up to 90 days, solely to fulfill its obligations or as required by applicable law. Termination does not release the Client from the obligation to pay any fees owed to Symend for the period preceding the termination effective date.
(d) Transition Assistance:
Assuming the Client has fulfilled payment obligations and is not in breach of this Agreement, if this Agreement or any active Order Form expires or terminates, Symend will provide the Client with transition assistance to migrate Client Data to another supplier. This transition assistance period extends up to 3 months, and Symend reserves the right to invoice the Client for this transition assistance based on time and materials, at Symend’s prevailing rates.
(e) Surviving Provisions:
Certain sections of this Agreement will continue to apply even after termination. These sections include Sections 1, 2, 5, 6, 7 (until all outstanding fees are paid), 8(c), 8(e), 8(e), 9, 11, 12, and 13, which survive the termination of this Agreement.
(a) Confidential Information:
Neither the Receiving Party nor its agents, employees, officers, directors, or representatives will disclose or cause the disclosure of any Confidential Information of the Disclosing Party, except in the following cases:
(i) To those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise their rights under this Agreement and are bound by a written agreement with confidentiality terms at least as restrictive as those in this Agreement.
(ii) As required by applicable law or governmental regulation, with the Receiving Party providing sufficient written notice to enable the Disclosing Party to seek a protective order or otherwise prevent the disclosure.
Nothing in this Agreement restricts or limits the Receiving Party’s disclosure or use of Confidential Information (excluding personal information) in the following scenarios:
(A) The information was previously known to the Receiving Party without any confidentiality obligation.
(B) The information was independently developed by or for the Receiving Party without using or accessing the Disclosing Party’s Confidential Information.
(C) The information was acquired by the Receiving Party from a third party not under any confidentiality obligation.
(D) The information becomes publicly available without any breach by the Receiving Party of this Agreement. The terms of this Agreement and all non-public information provided by Symend to the Client as part of the Symend Services are considered Confidential Information of Symend. Client Data is treated as the Confidential Information of the Client.
(b) Duty of Care:
The Receiving Party agrees to exercise the same level of care in preventing unauthorized disclosure or use of the Confidential Information as it does to protect its own similar information. This includes informing subcontractors, agents, representatives, advisors, employees, officers, directors, and Affiliates (as applicable) about the confidential nature of the Confidential Information and the terms of this Agreement. They must comply with these terms and be subject to an appropriate duty to maintain confidentiality. Each party must notify the other party if it becomes aware of or has reasonable grounds to suspect unauthorized disclosure of the other party’s Confidential Information.
(c) Equitable Relief:
The Receiving Party acknowledges that the disclosure of the Disclosing Party’s Confidential Information may result in serious and irreparable harm for which legal remedies may be insufficient. The Disclosing Party may be entitled to seek equitable relief, including restraining orders or injunctions, in addition to other remedies, for any violation or potential violation of this Section.
(d) Return or Destruction:
Subject to Section 8(c) for Client Data, within 5 days of the Disclosing Party’s request, the Receiving Party will return or destroy the Disclosing Party’s Confidential Information. However, the Receiving Party is entitled to retain archival copies solely for legal, regulatory, or compliance purposes unless otherwise prohibited by law.
(e) Personal Information Processing:
10. Warranties, Exclusive Remedies, and Disclaimers
(a) Symend’s Warranty: Symend warrants that the Symend Platform will not contain Malicious Code, utilizing commercially reasonable measures. If non-conformity occurs, Symend will strive to cure it, provided the Client notifies Symend within 30 days of warranty breach. This is the Client’s sole and exclusive remedy for warranty breaches.
(b) Client’s Warranties: The Client warrants its legal power to enter this Agreement; rights in Client Data for Symend’s use; obtaining necessary consents for processing personal data; the right for data assignment and subcontracting; the right for data storage in Canada or the United States as per Symend’s discretion; and ensuring the Client Data does not infringe third-party rights or contain Malicious Code.
(c) Disclaimers: Except as stated, Symend Services are provided “AS IS.” All implied warranties, including merchantability, fitness for purpose, or non-infringement of third-party rights, are disclaimed. Third-party materials come with no warranties and are subject to their respective agreements.
(a) Client’s Indemnification Responsibilities: The Client will defend and cover damages against claims relating to license breaches, infringement by Client Data, Agreement violations, and non-compliance with laws.
(b) Symend’s Indemnification Responsibilities: Symend will defend and cover damages against claims where the Symend Platform or Artifacts infringe intellectual property rights, excluding specific conditions like product combinations or unintended use.
(c) Indemnification Procedures: The Indemnified Party must promptly notify and provide control and assistance for the claim defense to the Indemnifying Party. The Indemnifying Party cannot adversely affect the Indemnified Party’s rights without consent. The Indemnified Party may join the defense at its own cost.
12. Limitation of Liability
(a) Liability Cap: Liability of either party will not exceed the total amount paid by the Client to Symend in the 12 months preceding the incident.
(b) Exclusions from Liability Limitation: The limitation does not apply to breaches of licenses and responsibilities, payment obligations, fraud, gross negligence, willful misconduct, or indemnification obligations.
(c) Excluded Damages: Neither party is liable for lost profits, revenue, or any indirect damages, except in cases of license breaches, fraud, willful misconduct, gross negligence, or indemnification obligations.
13. General Provisions
(a) Know-how: Symend can exploit general know-how acquired during service performance, without disclosing Client’s Confidential Information.
(b) Assignment: Neither party can assign rights or obligations without the other’s consent, except in mergers or reorganizations.
(c) Relationship of the Parties: Symend and Client are independent contractors.
(d) Governing Law: The Agreement is governed by Colorado laws if the Client is in the U.S., and by Alberta and Canadian federal laws if outside the U.S., with jurisdiction in respective courts.
(e) Applicable Symend Entity: Symend US Inc. for U.S. clients and Symend Inc. for clients outside the U.S.
(f) Force Majeure: Neither party is liable for delays or failures beyond reasonable control.
(g) Entire Agreement: This Agreement supersedes prior communications and prevails over Order Forms unless otherwise agreed.
(h) Waivers: Delay in exercising rights does not constitute a waiver.
(i) Agreement Updates: Symend may update the Agreement, with a 30-day notice unless due to legal requirements.
(j) Severability: Illegal provisions will be modified to reflect original intent, with the rest of the Agreement remaining effective.
(k) Precedence: Conflicts with other agreements are resolved in favor of agreements signed by authorized representatives.
(l) Subcontracting: Symend may subcontract without Client’s consent but remains responsible for its subcontractors.
(m) Marketing Rights: Client grants Symend rights to use its name and logo for marketing, not implying endorsement.