MASTER SERVICE AGREEMENT
THIS MASTER SERVICE AGREEMENT (COLLECTIVELY WITH THE PING ORDER
FORM (THE “ORDER FORM”) AND ALL OTHER EXHIBITS AND ATTACHMENTS
HERETO, THE “AGREEMENT”) WILL BE LEGALLY BINDING ON FIKE INC.
(“CUSTOMER”) AND PING INTELLIGENT TECH INC. (“SERVICE PROVIDER”) UPON
THEIR EXECUTION OF THE PING ORDER FORM REFERENCING THIS MASTER
SERVICE AGREEMENT. EACH PARTY HERETO AGREES TO FOLLOW AND BE
BOUND BY THE TERMS AND CONDITIONS OF THIS MASTER SERVICE
AGREEMENT.
1. SERVICES AND SUPPORT
1.1 In consideration of (and subject to) the payment of the fees and marketing obligations
listed on the applicable Order Form (the “Fees”), Service Provider will provide Customer
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the services selected in the Order Form (attached hereto as Exhibit A), the applicable
General Service Level Support Terms (as described on Exhibit B attached hereto and
incorporated herein) (collectively, the “Services”) and the terms of the Data Processing
Addendum (as set forth on Exhibit C attached hereto and incorporated herein).
1.2 As part of the registration process, Customer will identify an administrative user (“Admin
user”) for Customer’s account (the “Account”). The Admin user may create standard users
(each with login credentials linked to their email address) up to the maximum number
permitted in the Order Form. If Service Provider deems a user’s login credentials to be
inappropriate, Service Provider will notify Customer and the user will promptly modify
such credentials or may have their access suspended until their credentials have been
modified.
1.3 By executing the Order Form and using the Services, Customer accepts and agrees to be
bound by this Master Service Agreement as well as Service Provider’s privacy policy,
located at https://www.tryping.com/privacy.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Subject to all terms of the Agreement, Service Provider hereby grants to Customer, for the
term set forth herein, a non-exclusive, non-sublicensable, non-transferable, non-assignable,
royalty free license to use for Customer’s software applications, and for Customer’s
internal use (and only in accordance with any applicable documentation), the functionality
and data provided to Customer by Service Provider through the use of the Services (the
“Platform”).
2.2 Customer will not (and will not allow any third party to), directly or indirectly: reverse
engineer, decompile, disassemble or otherwise attempt to discover the source code, object
code or underlying structure, ideas or algorithms of the Services (or any underlying
software, documentation or data related to the Services); modify, translate, or create
derivative works based on the Services or any underlying software; or copy (except for
archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber
rights to the Services or any underlying software; use the Services or any underlying
software for timesharing or service bureau purposes or otherwise for the benefit of a third
party; or remove any proprietary notices or labels.
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2.3 Service Provider retains all right, title, interest (including, but not limited, to intellectual
property rights) in and to the Services and any modifications or updates thereto. Nothing
in this Agreement shall be construed as granting Customer any right, title or interest in or
to the Services except as expressly stated herein.
2.4 Customer will access and use the Services only in compliance with Service Provider’s
standard published access and security policies then in effect and the terms of this
Agreement (including the scope and duration identified in this Agreement).
2.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary
services needed to connect to, access or otherwise use the Services, including, without
limitation, modems, hardware, server, software, operating system, networking, web
servers, long distance and local telephone service (collectively, “Equipment”).
2.6 Customer shall be responsible for compliance with any and all applicable third party terms
of service and privacy policies for platforms, networks and/or websites that they run their
applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App
Store.
2.7 Customer shall be responsible for ensuring that such Equipment is compatible with the
Services and complies with all configurations and specifications set forth in Service
Provider’s published policies then in effect. Customer shall also be responsible for
maintaining the security of the Equipment, the Account, email credentials (including but
not limited to administrative and user email addresses) and files, and for all uses of the
Account or the Equipment with or without Customer’s knowledge or consent.
2.8 Upon prior written approval by Customer, Service Provider may:
2.8.1 produce and publish a case study on its website regarding the Customer’s use
of the Services; and
2.8.2 create self-promotional materials such as press releases, advertisements,
brochures, etc.
2.8.3 upon prior written approval by Customer, Customer shall provide a mutually
agreeable quote with respect to Service Provider and the Services, to be used
for Service Provider’s marketing and publicity purposes.
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3. CONFIDENTIALITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing
Party”) has disclosed or may disclose information relating to the Disclosing Party’s
business, including, without limitation, technical or financial information (hereinafter
referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information
includes non-public data provided by Customer to Service Provider to enable the provision
of the Services and any other data that a reasonable person would understand, under the
circumstances, to be the confidential or proprietary information of the Disclosing Party.
3.2 The Receiving Party agrees:
3.2.1 to take reasonable precautions that are at least as protective as those used to
protect its own Proprietary Information, to protect the Proprietary Information
of the Disclosing Part; and
3.2.2 not to use (except as expressly permitted herein) or divulge to any third person
any such Proprietary Information. The Disclosing Party agrees that the
foregoing shall not apply with respect to (x) any information after three (3)
years following the disclosure thereof (except the obligation of confidentiality
shall continue in perpetuity with respect to any Proprietary Information that
constitutes a trade secret under applicable law) or (y) any information that the
Receiving Party can document (a) is or becomes generally available to the
public through no breach of this Agreement by the Receiving Party, or (b) was
in its possession or known by it without restriction on disclosure prior to
receipt from the Disclosing Party, or (c) was rightfully disclosed to it without
restriction by a third party, or (d) was independently developed without use of
any Proprietary Information of the Disclosing Party, or (e) is required by law
to be disclosed, in which event the Receiving Party shall, to the extent allowed
by law, provide notice to the Disclosing Party prior to disclosing any such
Proprietary Information. In the performance of the Services, Service Provider
is expressly authorized to collect general user data and report on the aggregate
response rate and other aggregate measures of the Services’ performance,
provided that the user data is anonymized and no personally identifying
information of the Customer or its users is revealed.
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3.3 Service Provider will comply with the terms of the Data Processing Addendum (the
“DPA”) attached as Exhibit C.
4. PAYMENT OF FEES
4.1 Customer will pay Service Provider the Fees for the Services as listed on the applicable
Order Form within 30 days of the date of invoice. The fees for any renewal term shall be at
Service Provider’s then standard rates currently in effect, or if applicable, as otherwise
stated in the Order Form. All Fees paid under this Agreement are nonrefundable except as
specifically provided for herein.
4.2 If Customer believes that Service Provider has billed Customer incorrectly, Customer shall
use reasonable efforts to contact Service Provider no later than sixty (60) days after the
closing date on the first billing statement in which the error or problem appeared, in order
to receive an adjustment or credit. Inquiries should be directed to Service Provider’s
customer support department. Service Provider shall respond to Customer within three (3)
business days after receiving such inquiries.
4.3 Service Provider shall bill through an invoice, and full payment of invoices must be
received by Service Provider within the time period specified in the Order Form. Unless
disputed in good faith, unpaid invoices may be subject to a finance charge of 1.0% per
month on any outstanding balance. Customer shall be responsible for all taxes associated
with Services other than U.S. taxes based on Service Provider’s net income.
5. TERMINATION
5.1 Subject to earlier termination as provided below, the initial Service term is as specified in
the applicable Order Form (the “Initial Service Term”), and, unless provided for otherwise
in the Order Form, shall be renewed for additional terms (each, a “Renewal Term” and
collectively with the Initial Service Term, the “Term”) only upon the written agreement of
the parties.
5.2 Either party may terminate this Agreement and any Order Form if the other party
materially breaches any of the terms or conditions of the Agreement, and if the breach is
capable of remedy, fails to promptly remedy that breach within thirty (30) days of receipt
of notice. If this Agreement is terminated as a result of a material breach by Customer,
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Customer shall pay in full all remaining Fees payable through the remainder of the Term.
Upon any termination or expiration of this Agreement for any reason, Customer may
request, and if so requested Service Provider will provide, an export of Customer’s data in
a mutually agreed upon format within thirty (30) days of the effective date of such
termination or expiration.
5.3 Termination (which includes expiration or non-renewal) of the Order Form shall not limit
either party from pursuing other remedies available to it, including injunctive relief, nor
shall such termination relieve Customer’s obligation to pay all Fees that have accrued or
are otherwise owed by Customer under any Order Form.
5.4 Upon the termination of the Agreement or Services, Customer’s right to access or use the
Services shall terminate.
5.5 The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3
(“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and
Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”) shall survive
termination of the Agreement.
6. INDEMNIFICATION
6.1 Service Provider agrees, at its own expense, to indemnify, defend Customer and hold
Customer harmless against any damages, losses, liabilities, settlements and expenses
(including without limitation costs and attorneys’ fees) in connection with any demand,
claim, action, suit or proceeding brought by a third party alleging Service Provider’s gross
negligence or willful misconduct, or that the Platform and/or the use of the Services in
accordance with the Order Form infringes or misappropriates any U.S. intellectual property
right, provided that Customer:
6.1.1 promptly notifies Service Provider in writing of any such suit, claim or
proceeding,
6.1.2 allows Service Provider, at Service Provider’s own expense, to direct the
defense of such suit, claim or proceeding,
6.1.3 gives Service Provider all information and assistance necessary to defend such
suit, claim or proceeding, and
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6.1.4 does not enter into any settlement of any such suit, claim or proceeding
without Service Provider’s written consent.
The foregoing obligations do not apply with respect to the Services or portions or
components thereof (x) to the extent the alleged infringement results from changes to the
Platform or Services required by Customer specifications, or (y) combined with other
products, processes or materials by Customer in a manner not contemplated by this
Agreement where the alleged infringement would not have occurred without such
combination. This section states Service Provider’s entire liability and Customer’s
exclusive remedy for infringement or misappropriation of intellectual property of a third
party.
6.2 Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless
Service Provider against any damages, losses, liabilities, settlements and expenses
(including without limitation costs and attorneys’ fees) in connection with any demand,
claim, action, suit or proceeding by a third party to the extent arising from Customer’s
violation of Sections 2.1 to 2.3, or otherwise from Customer’s use of Services in violation
of this Agreement that is excluded from Service Provider’s aforementioned indemnity
obligations in clauses (x) and (y) of the second to last sentence of Section 6.1, above.
7. WARRANTY AND DISCLAIMER
7.1 SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS;
NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE
OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS
IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED,INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT.
7.2 IN ADDITION, CUSTOMER ACKNOWLEDGES THAT SERVICE PROVIDER DOES
NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS
FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE
SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN
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THE USE OF SUCH COMMUNICATIONS FACILITIES. SERVICE PROVIDER IS
NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER
DAMAGE RESULTING FROM SUCH PROBLEMS.
7.3 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE
EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES
OR CONDITIONS.
8. LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR DAMAGES
ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
OR A PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE
AGREEMENT (INCLUDING THE ORDER FORM) UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY:
8.1.1 FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES
OR TECHNOLOGY OR ANY LOSS OF BUSINESS, OR REVENUE OR
PROFITS RESULTING THEREFROM;
8.1.2 FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE,
SPECIAL OR CONSEQUENTIAL DAMAGES; OR
8.1.3 FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS
ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES
ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE
APPLICABLE SERVICES UNDER THE AGREEMENT OR RELATING
TO ANY SUBJECT MATTER THEREOF IN THE 12 MONTHS PRIOR TO
THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE
FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER
ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO
CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF
SERVICE PROVIDER, SUCH AS A FAILURE OF
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TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT
CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE
CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR
PURPOSES OF ANY REMEDY PROVIDED HEREIN.
8.1.4 If applicable law limits the application of the provisions of this section 8, a
party’s liability will be limited to the maximum extent permissible.
9. MISCELLANEOUS
9.1.1 If any provision of the Agreement is found to be unenforceable or invalid, that
provision will be limited or eliminated to the minimum extent necessary so
that the Agreement will otherwise remain in full force and effect and
enforceable.
9.1.2 Neither party may assign this Agreement or assign or delegate its rights or
obligations under the Agreement without the other party’s prior written
consent; provided however, that either party may assign this Agreement to an
acquirer of or successor to all or substantially all of its business or assets to
which this Agreement relates, whether by merger, sale of assets, sale of stock,
reorganization or otherwise.
9.1.3 Both parties agree that the Order Form and this Master Service Agreement,
including all exhibits, is the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all previous written
and oral agreements, communications and other understandings relating to the
subject matter of the Agreement, and that all waivers and modifications must
be in a writing signed on behalf of both parties by their duly authorized
representatives, except as otherwise provided herein.
9.1.4 This Agreement or any Order Form may be amended only by a writing
executed by the parties referencing this Agreement.
9.1.5 No agency, partnership, joint venture, or employment is created as a result of
the Agreement and neither party has any authority of any kind to bind or
attempt to bind the other party in any respect whatsoever.
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9.1.6 In any action or proceeding to enforce rights under the Agreement, the
prevailing party will be entitled to recover costs and attorneys’ fees. All
notices under the Agreement will be in writing and will be deemed to have
been duly given when received, if personally delivered; when receipt is
electronically confirmed, if transmitted by e-mail; the day after it is sent, if
sent for next day delivery by recognized overnight delivery service; and upon
receipt, if sent by certified or registered mail, return receipt requested.
9.1.7 This Agreement may be executed in one or more counterparts.
9.1.8 The parties agree that any material breach of Section 2 or 3 of this Agreement
may cause irreparable injury and that injunctive relief in a court of competent
jurisdiction may be appropriate to prevent an initial or continuing breach of
Section 2 or 3 in additional to any other relief to which the owner of such
Proprietary Information may be entitled.
9.1.9 The Agreement shall be governed by the laws of the State of California
without regard to its conflict of laws provisions. Any action or proceeding
arising from or relating to the Agreement must be brought in a federal court in
the Northern District of California, or in a state court in San Francisco,
California, and each party irrevocably submits to the jurisdiction and venue of
any such court in any such action or proceeding.
9.1.10 The parties agree that the United Nations Convention on Contracts for the
International Sale of Goods is specifically excluded from application to the
Order Form.
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Exhibit B
General Service Level Support Terms
1. Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the
intent that Services will be available and operational to Customer for 99% of all Scheduled
Availability Time. “Scheduled Availability Time” shall be defined as twenty-four (24)
hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime;
(ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to
defects caused by Customer, one of its vendors, third party connections, utilities, or caused
by other forces beyond the control of Service Provider (such as internet outages or outages
with respect to Customer’s network or internet access). Service Provider shall use reasonable
efforts to provide advance notice in writing or by email of any scheduled service disruption.
In the event of any unexcused downtime, Service Provider will credit the prorated amount to
the Customer’s next monthly invoice.
2. Maintenance. Service Provider will make available to Customer as part of the Services, all
generally available enhancements, updates and bug fixes to the Services.
3. Customer Responsibility. In addition to other responsibilities contained herein, Customer
will be responsible for ongoing maintenance, management and accuracy of its profile data.
Additionally, Customer will be responsible for communicating and managing the
registration, training and change management process.
4. Support. Service Provider is available to receive product support inquiries via email or the
Service Provider website 24 hours per day. Service Provider Standard Support Hours are
06:30 to 15:30 Pacific Time Monday through Friday for technical information, technical
advice and technical consultation regarding Customer’s use of the Services.
5. Customer Support List. Customer shall provide to Service Provider, and keep current, a
list of designated contacts and contact information (the “Support List”) for Service Provider
to contact for support services. Such Support List shall include (i) the first person to contact
for the answer or assistance desired, and (ii) the persons in successively more responsible or
qualified positions to provide the answer or assistance desired.
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6. Classification of Problems. Service Provider shall classify each problem encountered by
Customer according to the following definitions and will use reasonable commercial efforts
to address the problem in accordance with such classification according to the table below.
7. Severity Levels and Response Times
Priori Guaranteed
Action
ty Priority description Expected response times Response Times
required
code
Ping will provide a status Ping will provide a
Mission Critical. update by telephone and/or status update by
Escalation in
Customer application e-mail within one (1) telephone and/or e-
accordance
performance or user business hour within the mail within four (4)
with
experience detrimentally initial occurrence of the P1 business hours
P1 provisions in
affected, causing critical issue. Ping’s goal for within the initial
“Escalation
impact to business resolution of P1 issues is occurrence of the
procedures”
operations; no within one (1) calendar day P1 issue.
section below.
workaround available. of Customer’s receipt of
issue notification.
P2 High. Platform Escalation in Ping will provide a status Ping will provide a
availability or accordance update by telephone, e- status update by
performance significantly with mail, or via automated eight (8) business
degraded and/or provisions in notification within the hours within the
impacting significant “Escalation reporting interface of the initial occurrence of
aspects of business procedures” Measurement Services as the P2 issue.
operations. section below. mutually agreed upon by
the Parties, as warranted
until (i) the problem is
resolved, (ii) an acceptable
workaround is found or
(iii) the problem is
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determined to be outside of
Ping’s ability to control.
Priori Name of Time delay before
ty Contact type Contact / Contact Email address Escalation to next
code Role level
Key Tech
P1 Primary Staffer/ First help@tryping.com 2 hours
Available
Dedicated
Secondary Account help@tryping.com 4 hours
Manager
All Staff /
P2 Primary help@tryping.com 8 hours
First Available
Dedicated
Secondary Account help@tryping.com 12 hours
Manager
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