Master Subscription Agreement | Hosted Fides | Ethyca Legal | Ethyca

ETHYCA, INC. MASTER SUBSCRIPTION AGREEMENT

Last Modified: February 10 2023

1. Definitions

Capitalized terms used and not otherwise defined in this Agreement shall have the meanings set forth below.

  1. Affiliate means an entity that, either directly or indirectly, controls, is controlled by, or is under common control with, the relevant entity, where "control" means the ability to direct the affairs of another by ownership, contract or otherwise.
  2. Agreement means the Order Form, this Master Subscription Agreement.
  3. Audit Data means a subset of Customer Data used by Ethyca for the purposes of creating an audit trail of Customer’s use of the Services, comprising: (i) the primary identifier relating to the subject of a DSR, erasure, portability, rectification or consent request; (ii) a time stamp of the request; and (iii) the number of records affected and a list of the affected systems.
  4. Authorized User means an individual authorized by Customer to access and use the Service.
  5. Confidential Information means any non-public or proprietary information, including any business or technical information, trade secrets, know-how, processes, pricing and financial data, software, and documentation, provided, disclosed or made accessible by a Party to the other Party under the Agreement that is either identified, orally or in writing, as confidential or would be understood to be confidential by a reasonable person under the circumstances. For the avoidance of doubt, the Service and Documentation shall be deemed Ethyca’s Confidential Information.
  6. Customer means the company or other legal entity identified as the Customer on the Order Form.
  7. Customer Data means all data fields that Customer configures through the Service to be monitored for data privacy management and the data generated therefrom through Customer’s use of the Service.
  8. Customer Data Store means a database or other data management or data storage system, that is managed, owned or otherwise controlled by Customer, from which Customer Data is provided to the Service by Customer (or a third party acting on the Customer’s behalf) by a means other than an integration with a Third Party Platform.
  9. Data Processing Agreement or DPA means Ethyca’s standard Data Processing Agreement available here: https://ethyca.com/legal/dpa-hosted-fides as may be amended from time to time.
  10. Documentation means the user guidelines and other user documentation related to the use or operation of the Service, as provided by Ethyca.
  11. Effective Date means the date referred to in the Effective Date section of the Order Form.
  12. Ethyca means Ethyca, Inc.
  13. Fides means Ethyca software applications provided for data privacy and governance purposes.
  14. Order Form means the Ethyca, Inc. order form(s) entered into between Customer and Ethyca that sets out the Services to be provided by Ethyca to Customer.
  15. Party means either Ethyca or Customer as determined by the context in which the term appears, and Parties means both of them.
  16. Service means the Fides applications authored by Ethyca as part of the online product and services referred to in, and ordered by Customer under, an Order Form and made available to Customer via the user login link designated by Ethyca.
  17. Term means the duration of the Agreement comprising the Minimum Term and each Renewal Term (if any) (each as defined in Section 7.1).
  18. Third Party Platform means the third party application, platform or data storage system that the Service is configured to integrate with, which is selected by Customer for integration.

2. SERVICE SUBSCRIPTION

1. Service

During the Term of the Agreement, Ethyca grants to Customer the right to access and use the Service, and to permit Authorized Users to access and use the Service for Customer’s internal business purposes only in accordance with the terms and conditions set forth in the Agreement. Ethyca may modify, amend, alter, supplement or replace (a “Service Change") the Service from time to time, in whole or in part, without any notice to Customer;

2. Restrictions

Customer may use the Service for its own internal business purposes only and shall not, and shall ensure that Authorized Users do not, except as expressly permitted in the Agreement: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in the operation of a service bureau or similar service for third parties; (c) modify, copy or create derivative works based on the Service; (d) disassemble, reverse engineer, decompile or otherwise seek access to the source code of the Service; (e) access the Service in order to build a competitive product or service; (f) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (h) attempt to gain unauthorized access to the Service or its related systems or networks.

3. Integration

The Service may be integrated with the Third Party Platform or a Customer Data Store to assist Customer to monitor their data processing and storage activities.

4. Customer Built Integration

Customer may build their own integrations with Third Party Platforms or Customer Data stores.

5. Logon Credentials

Customer must create a Customer admin account, including a user name, and password, or other logon credentials for each of its Authorized Users to access and use the Service.

6. Authorized Users

Customer is solely responsible for all activities that occur under Authorized User accounts, for procuring that all Authorized Users comply with the terms of the Agreement and for taking reasonable steps to ensure such compliance.

3. Ownership

1. Service

As between the Parties, Ethyca shall retain all right, title and interest (including all intellectual property and proprietary rights) in and to the Service, including any updates, upgrades, modifications or improvements thereto.

2. Customer Data

Customer retains all right, title and interest in and to the Customer Data.

3. Feedback

Customer acknowledges that all suggestions for corrections, changes, additions or modifications to the Service, and any other feedback provided by Customer are the exclusive property of Ethyca.

4. DATA; privacy.

1. License to Data

Customer shall only disclose, submit, or provide to Ethyca Customer Data as necessary for Ethyca to provide the Service to Customer.

2. Privacy

Subject to Section 4.3, Ethyca will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.

3. Data Processing Agreement

The terms and conditions of the Data Processing Agreement will apply where the European Data Protection Laws or the CPRA applies to Customer or to Ethyca or to any of their respective Affiliates.

5. CUSTOMER SUPPORT.

Ethyca shall maintain technical support via live chat available Monday through Friday from 9:00 AM to 6:00 PM ET, excluding U.S. national holidays, and establish an email address to provide responses to technical support inquiries.

6. Fees.

1. Fees

Customer shall pay the fees specified in the Order Form.

2. Payment

Ethyca shall invoice Customer monthly in advance for the Fees and Customer shall pay such invoice within 30 days of the date of such invoice.

3. Changes to Fees

Ethyca may only change the price of the Fees under an Order Form from the start of a Renewal Term and where it has provided Customer at least 60 days prior notice.

4. Taxes

The Fees are exclusive of all taxes and Customer agrees to pay all taxes, including local, state, federal or foreign sales, use and value-added taxes, withholding taxes or similar charges imposed by any governmental entity.

5. Late Payment

Any amounts not paid by their due date will be subject to interest at the lesser of one and one-half percentage (1.5%) per month or the maximum allowed by applicable law.

7. Term and Termination.

  1. Term The Agreement shall begin on the Effective Date for a period of 12 months (the “Minimum Term”), and automatically renew for successive 12 month terms.

  2. Termination for Breach Either Party may terminate the Agreement for a material breach, provided the other Party shall not have cured such breach within thirty (30) days.

  3. Effect of Termination Upon termination of the Agreement, the Service will immediately terminate.

  4. Suspension Ethyca may immediately suspend Customer’s access to or use of all or part of the Service in the event of a violation of the Agreement.

  5. Survival Provisions of Sections 1, 3, 4.1(b), 7.5, 8, 9, 10, 11, and 12 shall survive the termination or expiration of the Agreement.

8. Indemnification.

  1. Ethyca Indemnity Ethyca shall indemnify, defend and hold Customer harmless from any claims arising from or in connection with the infringement of any patent, trademark, copyright, or trade secret.

  2. By Customer Customer shall indemnify, defend, and hold Ethyca harmless from any claims arising from Customer’s gross negligence or willful misconduct.

  3. Indemnity Procedures An Indemnified Party shall notify the other Party promptly in writing of any claim that may give rise to an indemnification obligation.

9. Confidentiality.

  1. Non-Disclosure Each Party agrees to hold the other Party’s Confidential Information in trust and confidence and not to disclose such information without authorization.

  2. Exceptions The Agreement does not limit either Party’s use or dissemination of the Confidential Information under specific circumstances.

  3. Court Orders The Receiving Party may disclose the Confidential Information in the event a subpoena or government process necessitates it.

  4. Return of Confidential Information Upon request of either Party, copies and embodiments of such Party’s Confidential Information shall be promptly returned or destroyed.

10. Warranties; Limitations on Liability.

  1. Mutual Warranties Each Party represents and warrants it is a valid legal entity and has the capacity to enter into this Agreement.

  2. Limited Warranty Ethyca warrants that the Service shall comply in all material respects with the Documentation.

  3. Warranty Disclaimer The Service is provided “as-is” without warranty of any kind beyond the limited warranty stated.

  4. No Legal or Regulatory Advice Customer acknowledges Ethyca is not providing legal, accounting, or regulatory services while providing the Service.

11. LIMITATIONS OF LIABILITY.

  1. Neither Party shall be liable to the other for any lost profits, or for any consequential, special, indirect or similar damages.

  2. Subject to Section 11.1, the total liability of each Party shall be limited to an amount equivalent to 150% of the Fees paid by the Customer.

  3. For indemnity under Section 8.1, Ethyca’s total liability shall be limited to 300% of the Fees.

12. General.

  1. Changes to Terms No amendment or modification of any terms or provisions of this Agreement shall be effective unless in writing and signed by the Parties.

  2. Relationship Customer and Ethyca shall act as independent contractors under this Agreement.

  3. Third-Party Beneficiaries The Agreement is intended for the exclusive benefit of the signatories.

  4. Name Use Customer grants Ethyca a non-exclusive, royalty-free license to use Customer’s name on Ethyca’s website.

  5. Customer Reference Customer grants Ethyca the use of publicly available details about the Customer as a reference for marketing.

  6. Entire Agreement The Agreement supersedes all prior communications and understandings between the Parties.

  7. Force Majeure Neither Party shall be liable for damages resulting from events beyond their control.

  8. Assignment Customer may not assign the Agreement without the prior written consent of Ethyca.

  9. Compliance with Laws Each Party shall comply with all applicable laws.

  10. Governing Law The Agreement shall be governed by the laws of the State of Delaware.

  11. Notices Notices shall be given in writing and deemed duly given when delivered by hand or by mail.

  12. Injunctive Relief Ethyca is entitled to seek any and all remedies available at law for breaches of the Agreement, including injunctive relief.