MASTER SUBSCRIPTION AGREEMENT
Effective: September 1st, 2023
This Master Subscription Agreement (“MSA”) serves as the framework agreement for the subscription services provided by Watershed Technology, Inc., a Delaware corporation with offices located at 360 9th Street, San Francisco, CA 94103 USA (“Watershed”), and governs any order form referencing this MSA (an “Order”) executed by the customer identified in the applicable Order (“Customer”). This MSA, any exhibits, any Order and any other incorporated terms or policies (collectively, the “Agreement”) comprise the entire understanding between Customer and Watershed regarding Customer’s access to and use of the Services described in the applicable Order.
WHEREAS, Watershed provides access to Watershed’s software-as-a-service solution(s) for measuring, reporting, and reducing greenhouse gas emissions, in each case identified in an Order(the “Software Services”);
WHEREAS, Watershed provides access to supplemental data products for measuring environmental performance, including Watershed’s proprietary CEDA Global Database, in each case identified in an Order (the “Data Services”); and
WHEREAS, Customer desires to access either the Software Services, the Data Services, or both (collectively, the “Services”, all as further defined in Section 1 (Provision of Services) below), as specified in an Order(s), and Watershed wishes to provide Customer with access to such Services;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- PROVISION OF SERVICES
- License to Customer.
- Software Services. During the applicable Order Term (as defined in Section 6.1 (Term and Order Term) below), Watershed grants Customer a revocable, nonexclusive, non-sublicensable, non-transferable (except in compliance with Section 13.2 (Assignment)), limited license to access and use any Software Services described in an Order, solely in accordance with the terms and conditions of this Agreement and any additional usage or license limitations set forth in the Order. Such access and usage are limited to the number of Authorized Users (as defined in Section 1.2 (Authorized Users and Affiliates) below) existing upon execution of an Order or added organically over an Order Term. In the event of a significant increase in Authorized Users during an Order Term due to a merger or other addition of an entity requiring Services, the parties agree to negotiate in good faith a proportionate increase in the scope of and fees for the Software Services for the remaining period in the Order Term. The definition “Software Services” as used in this Agreement includes Watershed’s enterprise climate platform (the “Watershed Platform”), any software that may be downloadable through the Watershed Platform, application programming interfaces (APIs), Watershed and third party (non-Customer) data (e.g., representative values relating the quantity of a pollutant released to the atmosphere with an activity associated with the release of that pollutant (an “Emissions Factor”)), web-based analytics, system management and monitoring tools, and associated technologies (e.g., algorithms, code, methodologies, models, processes, user interfaces, know-how, techniques, templates, visual interfaces, interactive features, designs, and Watershed’s proprietary database format). “Software Services” also includes documentation for the Software Services and the support and maintenance services provided pursuant to Exhibit A (Support and Service Levels) hereto.
- Data Services. During the applicable Order Term, Watershed grants Customer a revocable, nonexclusive, non-sublicensable, non-transferable (except in compliance with Section 13.2 (Assignment)), limited license to access and use any Data Services described in an Order, solely in accordance with the usage or license limitations set forth in the Order and this Agreement, for (i) Customer’s internal use, for the purpose of measuring the environmental performance of Customer’s own operations; and (ii) the public display of Customer’s calculated emissions derived from the Data Services.
- Authorized Users and Affiliates. Customer agrees that Customer must not provide access to the Services to any third party except Customer’s (and Customer’s Authorized Affiliates’ (as defined below), if any) employees and contractors (“Authorized Users”), solely for their internal use in connection with this Agreement. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, whether such access or use is permitted by or in violation of this Agreement, and any breach by an Authorized Affiliate and/or an Authorized User will be deemed a breach by Customer. Customer shall notify Watershed promptly of any unauthorized use of the Services of which it becomes aware and is responsible for anything that happens through a user account made accessible hereunder prior to closing it or reporting misuse to Watershed. “Authorized Affiliate” means an Affiliate listed on an Order or an exhibit to this MSA authorized by Watershed to access the Services purchased by Customer under the applicable Order. “Affiliate” means an entity that controls, is controlled by, or is under common control with a party, with “control” meaning direct or indirect ownership of (a) more than fifty percent (50%) of an entity’s voting interest; or (b) the right to receive more than fifty percent (50%) of an entity’s profits.
- Software Services: Updates. Customer acknowledges that Watershed may enhance and modify the Watershed Platform and introduce new Software Services from time to time, and will provide Customer with notice of any modifications to the Software Services purchased by Customer unless such changes are of minor nature with no material effect on Watershed’s contractual obligations. Watershed will not make changes to the Software Services that materially reduce the functionality purchased by Customer during an Order Term or materially reduce the security of Software Services. To the extent that Watershed makes available any new or different features, functionality or enhancements to the Software Services, Watershed may market these separately and may require the payment of additional fees. Customer agrees that Watershed shall not be liable to Customer or any third party for any modification of the Software Services made consistent with this section.
- Software Services: Third Party Services. Certain optional features of the Software Services, e.g., the ability to upload Customer Content (as defined in Section 3.1 (Responsibility for Customer Content) below) to the Software Services, or certain optional add-on features to the Software Services selected by Customer, may be enabled or provided by third parties (“Third Party Services”). Customer’s use of any such Third Party Services is subject to the terms of service governing such websites and services (as identified in an Order or otherwise agreed to by Customer in procuring the Third Party Service). Customer understands and agrees that the availability of these optional features may be dependent on the corresponding availability of the applicable Third Party Service. Watershed is not responsible for any interruptions or issues with the Software Services caused by Third Party Services or for any loss or damage of any sort relating to Customer’s dealings with Third Party Services, and makes no representation or warranty regarding Third Party Services, whether or not Watershed recommends, certifies, or otherwise approves a Third Party Service for use with the Software Services; provided, however, that to the extent Watershed enables a connection between the Watershed Platform and a Third Party Service, Watershed will use commercially reasonable efforts to support and maintain such connection. Third Party Services are subject to (a) the relevant third party’s requirements, e.g., establishing an account and paying applicable fees for the Third Party Service; and (b) the third party’s terms of service or other terms for the Third Party Service agreed to by Customer.
- Support and Service Levels. During an Order Term, Watershed will provide Customer with the maintenance and support services specified in Exhibit A for the Services described in an Order.
- Data Security. Watershed will maintain an industry standard information security program, including appropriate administrative, physical and technical safeguards in accordance with Exhibit B (Information Security Addendum). Customer agrees to assist Watershed in such efforts by making commercially reasonable efforts to prevent unauthorized access to or use of the Services, and agrees to notify Watershed promptly of any such unauthorized access or use of which Customer becomes aware.
- USE RESTRICTIONS
- General Use Restrictions. Customer must not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer agrees not to, nor permit any other party to: (a) use, or cause others to use, any automated system or software to extract or scrape content from the Watershed Platform, other than as authorized by Watershed, e.g., through provision of a Watershed API; (b) interfere with or disrupt the Services or servers or networks connected to the Watershed Platform; (c) take any action that negatively affects the ability of others to access or use the Watershed Platform; (d) use the Services for any illegal or unauthorized purpose; (e) provide access to the Services to anyone but Authorized Users; (f) rent, lease, lend, sell or sublicense the Services or otherwise provide access to the Services as part of a service bureau or similar fee-for-service purpose; (g) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or underlying methodology of the Watershed Platform, or any other part of the Services; (h) use web crawlers, scraping techniques, or other indexing or downloading technology to obtain data or information from the Services; (i) introduce any viruses to the Services; (j) remove any proprietary notices from the Services; (k) assign any sublicensing rights to any third party; or (l) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right (including, but not limited to, any patent improvements or derivatives related thereto) or other right of any person, or that violates any applicable provisions of foreign, federal, state or local laws, rules, regulations or orders of all governmental bodies, courts, tribunals and arbitrators (“Applicable Law”).
- Data Use Restrictions.In addition to the use restrictions set forth in Section 2.1 (General Use Restrictions) above, Customer shall not at any time, directly or indirectly, nor permit any Authorized Users to: (a) create databases that compete with the Data Services during the applicable Order Term plus one year following the termination or expiration of the Order Term; or (b) expose or distribute, or allow third parties to reproduce, any portion of the original data from the Data Services or any Emissions Factors, except to the parties permitted under Section 7.2 (Non-Disclosure) solely as strictly necessary to verify Customer’s sustainability impacts in internal reports. Third party publishers or owners of Emissions Factors may enforce the restrictions in this Section 2 (Use Restrictions) directly against Customer to the extent that Customer’s breach of these restrictions impacts such data.
- SOFTWARE SERVICES: CUSTOMER CONTENT
- Responsibility for Customer Content. As between Watershed and Customer, Customer is solely responsible for and assumes all risk associated with all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted to the Services by or on behalf of Customer or an Authorized User, including through Third Party Services providers (“Customer Content”), including anyone’s reliance on the quality, accuracy, or reliability of the Customer Content. Customer represents and warrants that it has obtained the necessary disclosures, permissions and consents to provide Customer Content to Watershed and the Services.
- License to Customer Content. Customer hereby grants to Watershed a revocable, nonexclusive, non-transferable (except in compliance with Section 13.2 (Assignment)), royalty-free, limited license to use and display the Customer Content and perform all acts with respect to the Customer Content solely as necessary for Watershed to provide the Software Services to Customer, solely for Customer’s benefit and subject to the terms of this Agreement. Except for any sublicense necessary to provide the Services, Watershed will not sell, disclose, or share any Customer Content (or any part or product thereof) with any third party.
- Prohibited Content. Unless expressly agreed in an Order with respect to a certain type of content, Customer must not nor permit others to submit, upload, email, transmit or otherwise make available through the Watershed Platform (a) any content not owned by Customer or for which Customer does not have all necessary authorization to make available through the Watershed Platform, including in accordance with all applicable intellectual property laws and data laws, regulations and privacy standards; (b) sensitive financial data (e.g., bank account numbers, credit card or debit card numbers, passwords, and other access codes for financial accounts); (c) personal health information subject to protection under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); (d) content that violates Applicable Law; or (e) content that a reasonable person would find abusive, harassing, threatening, defamatory, libelous, obscene, or otherwise objectionable. Watershed reserves the right to reject and/or remove any Customer Content that Watershed believes, in its reasonable discretion, violates this Section 3.3 (Prohibited Content), or as otherwise needed to ensure compliance with the Agreement or Applicable Law.
- Aggregated Statistics. Watershed may collect, analyze and use Customer Content in de-identified form, in which all personally identifiable information, including direct and indirect identifiers, has been removed or obscured so the remaining information does not reasonably identify an individual or Customer and there is no reasonable basis to believe that the information can be used to identify an individual or Customer, for (a) generating aggregated information related to customers’ use of the Services (“Aggregated Statistics”); (b) developing and training predictive models; and (c) conducting internal research, development, and benchmarking. As between Watershed and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights (as defined in Section 5.1 (Watershed Intellectual Property) below) therein, belong to and are retained solely by Watershed.
- FEES AND PAYMENT TERMS
- Fees. Customer agrees to pay Watershed the fees stated in the applicable Order, in U.S. dollars, unless another currency is specified in the Order.
- Payment Terms. Invoices submitted by Watershed are due thirty (30) days from receipt of invoice unless otherwise specified in the applicable Order. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If Customer disputes any charges, Customer must let Watershed know within thirty (30) days after the date that Watershed invoices Customer. The provision of Services under an Order is subject to timely payment.
- Taxes. Customer is responsible for all taxes, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (“Taxes”) imposed on the transaction or the delivery of Services (except Taxes based on Watershed’s net income or otherwise statutorily imposed on Watershed).
- Watershed Intellectual Property. As between Watershed and Customer, Watershed owns all right, title and interest, including all rights associated with patents and inventions, copyrights, and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets (collectively, “Intellectual Property Rights”) in and to (a) the Services; and (b) all methodology, information, text, links, graphics, photos, audio, video, and other forms of data or communication that users can view, access or otherwise interact with through the Services. With respect to Third Party Services, the applicable Third Party Services provider owns all Intellectual Property Rights in and to their Third Party Service.
- Customer Intellectual Property. As between Watershed and Customer, Customer owns all Intellectual Property Rights in and to the Customer Content. Additionally, as between Customer and Watershed, with the exception of the Watershed Intellectual Property underlying the calculations provided in such reports, Customer owns all Intellectual Property Rights in and to any customized reports generated through analysis of the Customer Content by the Software Services (the “Results”)).
- Feedback. Customer need not provide Watershed with any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”). That said, if Customer (including Authorized Users) provides Feedback to Watershed, (a) Customer acknowledges that Feedback is non-confidential and provided voluntarily by Customer; and (b) Customer grants to Watershed a worldwide, perpetual, irrevocable, royalty-free license to any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback for any purpose whatsoever, including, without limitation, for the improvement, marketing, and promotion of the Services; provided, however, that Watershed agrees that it may not attribute Feedback to Customer or any of its Authorized Users and that this license does not apply to Customer’s Confidential Information or Customer Content.
- Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
- TERM AND TERMINATION
- Term and Order Term. This MSA is effective on the Effective Date and will remain in effect until terminated in accordance with the terms of this MSA (the “Term”). An Order will have the term set forth in the Order (the initial term of the Order and any subsequent renewal terms, the “Order Term”).
- Suspension. Watershed reserves the right to suspend Customer’s access to the Services or a portion of the Services: (a) in the event of Customer’s breach of Section 2 (Use Restrictions) or Customer’s failure to pay undisputed fees when due; (b) to prevent damage to, or degradation of, the Services, or unauthorized access to Customer Content; or (c) to comply with Applicable Law (any such suspension, a “Service Suspension”). Watershed shall promptly provide written notice of any Service Suspension to Customer and shall provide regular updates regarding resumption of access to the Services following any Service Suspension. Watershed shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Watershed will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- Termination for Cause. This MSA or an Order may be terminated (a) by the non-breaching party upon a material breach of this Agreement by the other party, which breach, if curable, is not cured within thirty (30) days after receipt of written notice from the non-breaching party; or (b) by either party if the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any Applicable Law in force for the winding up or liquidation of such party’s business.
- Effect of Termination. Termination of an Order does not terminate this MSA or any other Order; however, termination of this MSA will result in the immediate termination of all Orders. Upon termination, any unpaid balance under any Order will immediately become due and payable and all remaining credits (if any) under any Order will expire; provided, however, that if this Agreement is terminated by Customer for Watershed’s uncured material breach under Section 6.3(a) above, Watershed will refund Customer any prepaid fee for the applicable Order Term prorated from the date of termination.Upon request by Customer made within thirty (30) days after the effective date of the termination or expiration of the Agreement, Watershed will make available the Customer Content to Customer for export or download and thereafter delete or destroy all Customer Content in Watershed’s possession or control. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement will survive such expiration or termination, including Sections 2 (Use Restrictions), 3.4 (Aggregated Statistics), 5 (Ownership), 6.4 (Effect of Termination), 7 (Confidential Information; Data Protection), 8 (Warranty), 9 (Indemnification), 10 (Limitation of Liability); 12 (Publicity) (in accordance with the limitations therein) and 13 (Governing Law; General).
- CONFIDENTIAL INFORMATION; DATA PROTECTION
- Definition. “Confidential Information” means any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by the disclosing party (“Discloser”)at the time of disclosure and confirmed in writing to the receiving party (“Recipient”) as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by Recipient to be confidential (e.g., pricing, personal data, etc.). Confidential Information does not include information that: (i) was available to the Recipient before disclosure of such information to the Recipient and free of any confidentiality obligation in favor of the Discloser and known to the Recipient at the time of disclosure; (ii) is made available to the Recipient from a third party not known by the Recipient at the time of such availability to be subject to a confidentiality obligation in favor of the Discloser; (iii) is made available to third parties by the Discloser without restriction on disclosing such information; (iv) is or becomes available to the public other than as a result of disclosure by the Recipient prohibited by this Agreement; or (v) is developed independently by or on behalf of the Recipient without reference to the Discloser’s Confidential Information.
- Non-Disclosure. Recipient must (a) use Confidential Information only for the purposes of furthering the business relationship between the parties; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) not disclose Confidential Information to any third party except its personnel, consultants, subcontractors, and professional advisors who have a need to know in order to carry out their obligations under the Agreement and who are bound by agreements limiting use of third party confidential information to the provision of services to Customer; and (d) not expose or distribute, or allow third parties to reproduce, any portion of the original data from the Data Services or any Emissions Factors, except as strictly necessary to verify Customer’s sustainability impacts in internal reports by the parties permitted under Section 7.2(c) above. If Recipient receives a court subpoena, request for production of documents, court order or requirement of a government agency to disclose any Confidential Information, the Recipient will give prompt written notice to the Discloser so that the request can be challenged or limited in scope by the Discloser.
- Data Protection. In the event that Watershed processes Personal Data (as defined in Section 1 of the Watershed Data Processing Addendum located at watershed.com/dpa (“Data Processing Addendum” or “DPA”)) on behalf of Customer pursuant to this Agreement as necessary to provide the Software Services, Watershed and Customer will comply with the DPA, the terms of which are incorporated into this Agreement.
- Mutual Warranties. Each party represents and warrants that (a) it is duly organized and validly existing under the laws of its governing jurisdiction and is qualified to conduct its business in that jurisdiction; (b) it has the power and authority to execute and deliver this Agreement and to perform its obligations under it; (c) it will comply with all Applicable Laws; and (d) in entering into the Agreement it does not rely on any promise, statement, representation or warranty (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as stated in the Agreement.
- Software Services Warranty. Watershed represents and warrants that Watershed will make commercially reasonable efforts to perform the Software Services in a professional and workmanlike manner with a level of care, skill, practice and judgment consistent with generally recognized industry standards and practices for similar services. Watershed will use commercially reasonable efforts to remedy any material breach of this Section 8.2 (Software Services Warranty) by promptly re-performing the Software Services, as long as Customer gives Watershed notice specifying the breach within a commercially reasonable period after discovering the breach.
- Data Services Warranty. Watershed represents and warrants that it will use commercially reasonable efforts to provide accurate, complete, usable and timely information with the Data Services. However, some data and information contained in the Data Services may, of necessity, involve statistical and systematic uncertainties. Watershed warrants it will correct any errors in the Data Services of which Watershed becomes aware as soon as commercially reasonable.
- DISCLAIMER. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH THE EXCEPTION OF THE WARRANTIES PROVIDED BY WATERSHED IN THIS SECTION 8 (WARRANTY), WATERSHED HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE WATERSHED PLATFORM AND SERVICES OR ANY RESULTS OBTAINED THROUGH THE SERVICES, OR THAT USE OF THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S OR AUTHORIZED USERS’ REQUIREMENTS.
- Watershed Indemnification. Watershed will defend, indemnify and hold harmless Customer, Customer’s Affiliates and each of their directors, officers, employees, contractors, agents, or affiliated entities (the “Customer Indemnified Parties”) from and against claims, demands, liabilities, losses, causes of action, damages, fines, judgments, and settlements brought by a third party (a “Claim”), including reimbursement of all reasonable legal fees and expenses, made or brought against a Customer Indemnified Party to the extent resulting from, or alleged to have resulted from, the infringement by the Services of a third-party Intellectual Property Right, except that Watershed will have no obligations pursuant to this Section for any combination, operation or use of the Services with other applications, portions of applications, data, product(s) or services not provided by Watershed where the Services would not by itself be infringing. If the use of the Services by Customer has become, or in Watershed’s opinion is likely to become, the subject of any claim of infringement, Watershed may at its option and expense (a) procure for Customer the right to continue using and receiving the Services as set forth hereunder; (b) replace or modify the Services to make them non-infringing (with comparable functionality); or (c) if the options in clauses (a) or (b) are not reasonably practicable, terminate this Agreement in exchange for a prorated refund under the applicable Orders.
- Customer Indemnification. Customer will defend, indemnify, and hold harmless Watershed, its Affiliates, and each of their directors, officers, employees, contractors, agents, or affiliated entities (the “Watershed Indemnified Parties”) from and against any Claim, including reimbursement of all reasonable legal fees and expenses, made or brought against a Watershed Indemnified Party to the extent resulting from or alleged to have resulted from (a) Customer’s breach of Section 2 (Use Restrictions); (b) the Customer Content; (c) Customer’s use of or access to Third Party Services; or (d) the combination, operation or use of the Services with other applications, portions of applications, data, product(s) or services provided by Customer where the Services would not by itself be infringing.
- Indemnification Procedures. Each party will promptly notify the other in writing of any Claim; provided, however, that failure of the indemnified party to give such prompt written notice will not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 9 (Indemnification), except to the extent the indemnifying party has been materially prejudiced as a direct result of such failure. The indemnifying party will (a) control the defense of the Claim; and (b) obtain the other party’s prior written approval of the indemnifying party’s settlement or compromise of a Claim to the extent such settlement or compromise would materially adversely impact the indemnified party’s rights, obligations, or business operations. The indemnified party will (i) not unreasonably withhold or delay its approval of the request for such settlement or compromise; and (ii) assist and cooperate in the defense as reasonably requested by the indemnifying party at the indemnifying party’s expense.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, (A) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF SUCH OTHER PERSON, INCLUDING, WITHOUT LIMITATION, LOSS OF FUTURE REVENUE, INCOME OR PROFITS, DIMINUTION OF VALUE, OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO THE OTHER PARTY IN ADVANCE OR COULD REASONABLY HAVE BEEN FORESEEN BY SUCH OTHER PARTY; OR (B) FOR AN AMOUNT THAT EXCEEDS THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO WATERSHED IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT(S) THAT FIRST GAVE RISE TO THE CLAIM. The limitations of liability stated in this Section 10 (Limitation of Liability) do not apply to: (i) a party’s indemnification obligations; (ii) a party’s liability for fraud, gross negligence or intentional misconduct; (iii) a party’s liability for death or personal injury; (iv) a party’s confidentiality obligations; or (v) Customer’s obligations with respect to fees due for Services hereunder (except as otherwise provided in this Agreement, e.g., in the event of early termination due to Watershed’s breach of this Agreement).
- INSURANCE. During the Term of this Agreement, Watershed will maintain commercially reasonable insurance coverage as required by law in connection with its performance under the Agreement. Watershed will provide a copy of Watershed’s certificate of insurance upon request.
- PUBLICITY. Watershed may identify Customer (including through use Customer’s logo) as a Watershed customer on Watershed’s digital properties and marketing materials in substantially the same way that it identifies other customers (e.g., as shown at watershed.com). Customer may request at any time that Watershed remove any mention of Customer from Watershed materials, and Watershed will do so as soon as possible. Other than such identification, each party and its representatives shall not: (a) issue or cause to be issued or published any press release, public announcement or public statement with respect to the terms hereof, the transactions contemplated by this Agreement or the termination hereof, without the prior written consent of the other party; and (b) use the name or any trademark or logo of the other party without the prior written consent of the other party, unless otherwise agreed in writing.
- GOVERNING LAW; GENERAL
- Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A. without regard to conflicts of law principles. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and County of San Francisco, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. Notwithstanding the foregoing, for Customers who have their registered office within the European Union or United Kingdom, this Agreement shall be governed by and construed in accordance with English law, and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this section.
- Assignment. Either party may assign this Agreement to an Affiliate or a successor-in-interest that is not a competitor of the non-assigning party in connection with (a) the sale of all or substantially all of the assigning party’s assets; (b) any change in the ownership of more than fifty percent (50%) of the assigning party’s voting capital stock in one or more related transactions; or (c) the assigning party’s merger with or acquisition by such successor-in-interest. Except for the assignments set forth in the foregoing sentence, neither party will assign the Agreement in whole or in part without the other party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned). Any attempted assignment in violation of this restriction is void. The Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Entire Agreement.This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter, including any confidentiality agreement entered into prior to the date of Customer’s first Order. If a conflict exists between any of the terms in the Agreement, the Order will govern, followed by the MSA, and then the DPA. It is expressly agreed that the terms of this Agreement and any Order supersede the terms in any Customer purchase order, procurement internet portal or other similar document, and no terms included in any such purchase order, portal or other document will apply to the Services ordered.
- Amendment. The parties may amend the Agreement, including any Order, only in a written amendment signed by both parties. Any attempt to amend, modify or vary the terms of this Agreement through a purchase order or invoice, or other document or communication not signed by the authorized representatives of both parties and referencing this Agreement will be void.
- Independent Contractors. The relationship between Watershed and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
- Notices. A notice regarding termination of the Agreement for breach, indemnification, or other legal matter must be sent by electronic mail or overnight postal or courier service, if to Customer at the billing address or email address set forth on the Order or the address in Customer’s account records with Watershed, and if to Watershed at firstname.lastname@example.org. Watershed’s routine communications regarding the Services and legal notices will be posted on Watershed’s customer portal or sent by email or post to the individual(s) Customer designates as contact(s) on Customer’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a business day, as of the beginning of the first business day following the time posted or delivered. To count days for notice periods, the business day on which the notice is deemed received counts as the first day.
- No Waiver. The failure of either party to require strict performance by the other party of any provision of this document will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision of this document be taken or held to be a waiver of the provision itself.
- Interpretation. In the Agreement, the words “include” and “including” will not be construed as terms of limitation. The titles, headings and subheadings used throughout this Agreement are intended solely for convenience of reference and form no part of the terms of this Agreement.
- Severability. If any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intentions and the remaining provisions will not be affected.
- Force Majeure. Neither party will be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, outages or slow-downs of the internet, outages at any of Watershed’s critical infrastructure providers, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, pandemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.
Support and Service Levels
- Support Hours. In general, Watershed will provide Customer with support via electronic mail on weekdays, during the hours of (a) 9:00 A.M. through 5:00 P.M. in all United States time zones, with the exclusion of U.S. federal holidays (“Support Hours”); and (b) 9:00 am through 5:00 pm Universal Time Coordinated (UTC), with the exclusion of U.K. federal holidays.
- Support Contacts. Customer may initiate support requests by emailing these contacts, in order of escalation:
- General support email: email@example.com.
- Account team for the Services ordered by Customer: Contact details will be made available after execution of the applicable Order.
- Emergency support: firstname.lastname@example.org, which pages Watershed’s on-call staff.
- Software Services Support Response Times. Watershed will make commercially reasonable efforts to respond to Software Services support requests within the following timeframes. Watershed will treat all Customer support requests as Level 3 (General) unless otherwise specified by Customer.
|Priority ||Description||Response Time|
|Level 1 (Critical)||Services outage or loss of access; critical business support requests||Four (4) business hours|
|Level 2 (High)||Services degradation; high-priority business support requests||One (1) business day|
|Level 3 (General)||Feature requests and minor bugs; general business support requests||Two (2) business days|
- Services Availability. Watershed will make commercially reasonable efforts to ensure the Software Services are available for Customer access 99.0% of the time, year-round (the “Availability”). Availability excludes (a) periods of scheduled maintenance; (b) issues caused by factors outside Watershed’s reasonable control; (c) issues resulting from Customer’s actions or inactions, or the actions or inactions of a third-party, including, without limitation, Watershed’s suppliers or Third Party Services; or (d) issues that result from Customer’s equipment or third-party equipment.Watershed shall provide at least forty-eight (48) hour notice of any scheduled downtime. Such scheduled downtime shall not exceed more than twenty-four (24) hours in any twelve (12) month period.
- Services Credit. Should Watershed fail to maintain Availability over an Order Term, Customer shall receive a credit (“Services Credit”) as defined below. Watershed will calculate any Services Credit on a trailing annual basis and apply it to the next renewal year of the Order Term, if applicable, or, if no renewal is provided for, issue Customer a refund. In no event shall the total Service Credit in any twelve (12) month period exceed ten percent (10%) of the applicable annual fees.
|More than 99.0%||None.|
|Between 95.0% and 99.0%||One percent (1%) of the total annual fees for each full percentage point of unscheduled downtime.|
|Less than 95.0%||Two percent (2%) of the total annual fees for each full percentage point of unscheduled downtime.|
Information Security Addendum
Watershed will implement and maintain the following administrative, technical, physical, and organizational security measures:
- Use Restrictions
Watershed shall only access and use Customer Data in accordance with Applicable Laws and the DPA, to fulfill its obligations under the Agreement or as explicitly directed by Customer, and for no other purposes.
- Information Security Management
Watershed agrees to establish and maintain a written information security and privacy program (“Information Security Program” or “ISP”) containing policies, procedures and controls to manage access to systems and data that are no less rigorous than accepted industry practices, including the following:
- Restriction of access to Customer Data to only those personnel, subcontractors or agents (“Data Personnel”) requiring access to fulfill Watershed’s obligations under the Agreement, consistent with the concepts of least privilege and need-to-know. Additional measures with respect to Data Personnel include:
- promptly terminating access privileges to systems and data for any Data Personnel that no longer need such access, and conducting reviews of access lists to ensure that access privileges have been appropriately provisioned and terminated no less than quarterly;
- providing ongoing training and awareness materials on the Information Security Program to all Data Personnel, including on the topics of phishing and social engineering; and
- applying the concept of separation of duties for all Data Personnel roles with access to Personal Data.
- Maintenance of appropriate network security measures, including but not limited to firewalls to segregate internal networks from the internet, risk-based network segmentation, and intrusion prevention or detection systems to alert Watershed to suspicious network activity.
- Performance of security testing on any applications or application code provided to or developed on behalf of Watershed to ensure that the application or application code is secure against any vulnerabilities that are identified through industry standard testing, and any vulnerabilities reported to Watershed by any third party.
- Performance of regular vulnerability scans and assessments on all systems storing, processing, or transmitting Customer Data to identify all potential vulnerabilities on such systems.
- Risk-prioritized remediation of identified vulnerabilities in a timely manner, including timely implementation of all manufacturer- and developer-recommended security updates and patches to operating systems and third-party software storing, processing, or transmitting Customer Data, or otherwise installed on Watershed systems.
- Performance of periodic penetration tests as needed.
- Use of antivirus and malware protection software with up-to-date definitions and signatures on all Watershed workstations.
- Enforcement of complex password requirements on all Watershed systems that use passwords for authentication.
- Use of strong encryption for all authentication credentials to prevent unauthorized account access.
- Implementation of secure workstation protection policies for Watershed systems.
- Encryption of all Customer Data in transit and at rest using robust encryption algorithms and in accordance with industry standards for secure key and protocol negotiation and key management, including full disk encryption for all Watershed workstations.
- Requirement that all remote network and system access to Watershed systems utilize multi-factor authentication.
3. Physical Security
- Access to Watershed facilities (including offices and coworking spaces) shall be restricted to personnel with authorized access. Restricted areas of facilities, such as server rooms if applicable, shall be subject to risk-appropriate access controls, such as by requiring key cards and/or PINs for entry. Watershed shall regularly review audit trails of access to these restricted areas.
- Watershed shall identify and log all visitors to its facilities and ensure that visitors to restricted areas are escorted by Watershed personnel at all times.
- Watershed shall implement and enforce “clean desk” (i.e., prohibiting documents with sensitive data from being left on desks, tables, etc. after work hours or for prolonged periods) policies throughout its facilities.
4. Business Continuity & Disaster Recovery
Watershed shall maintain appropriate business continuity and disaster recovery procedures to ensure prompt resumption and continuation of Watershed services in the event of a disruption. Watershed shall periodically test these procedures and provide information about them to Customer upon request.
- Watershed shall implement and maintain a documented vendor risk management program to ensure that:
- reasonable due diligence is conducted on any prospective subcontractor to ensure that they are capable of meeting the security standards outlined in the ISP; and
- the subcontractor is contractually required to comply with the terms of the ISP.
6. Compliance Monitoring
- Watershed shall regularly test and monitor the effectiveness of the security practices and procedures in the ISP, and will evaluate and adjust the ISP and information security safeguards in light of the results of the testing and monitoring, any material changes to its operations or business arrangements, or any other circumstances that Watershed knows or reasonably should know may have a material effect on its ISP and information security safeguards.
- Upon request of Customer, Watershed shall provide a copy of its most current third-party information security audit report and/or certification, if any.
7. Security Breach Notification
- Watershed will notify Customer promptly, and in any event within seventy-two (72) hours, of any Security Breach that compromises the availability, security, or integrity of Customer Data. “Security Breach” means any accidental or unlawful acquisition, destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data. Notification shall not be deemed to constitute an admission of fault or liability by Watershed for the Security Breach. Watershed will comply with the Security Breach-related obligations directly applicable to it under Applicable Law and will assist Customer in Customer’s compliance with its Security Breach-related obligations, including without limitation by:
- At Watershed’s own expense, taking steps to mitigate the effects of the Security Breach and reduce the risk to Data Subjects whose Personal Data was involved; and
- Providing Customer with the following information, to the extent known:
- The nature of the Security Breach, including, where possible, how the Security Breach occurred, the categories and approximate number of Data Subjects concerned, and the categories and approximate number of Personal Data records concerned;
- The likely consequences of the Security Breach; and
- Measures taken or proposed to be taken by Watershed to address the Security Breach, including, where appropriate, measures to mitigate its possible adverse effects.
8. Deletion of Data
At Customer’s direction at any time, and in any event upon termination or expiration of the Agreement, except to the extent required by applicable laws, Watershed shall, and shall cause its representatives to, promptly return to Customer or, if so directed by Customer, securely destroy any and all Customer Data.