Customer Master Services Ageement

This Prophecy Master Service Agreement (the Agreement) is made between Prophecy, Inc. (Prophecy) and each party (a Customer) that executes an Order Form for the Software subscription or Services (Services), as defined below.

Between Prophecy and each Customer, the Agreement consists of these terms, each Order Form, including any exhibits, and each amendment of any of the foregoing. This Agreement is effective as of the date of Customers initial Order Form (the Effective Date). By executing the initial Order Form, Customer agrees to all the terms set forth below.

In certain cases, Prophecy may provide a trial version of the Services. In that case each Customer consents to this Agreement by clicking Agree or using the Services. If Customer and Prophecy execute a subsequent agreement regarding commercial use of the Services, its terms will supersede the terms here to the extent of any conflict.

1. Software subscription, delivery, restrictions

1.1. License grants

Prophecy hereby grants to Customer, solely for Customer’s and Affiliates’ internal business operations, a limited, non-exclusive, non-transferable right and license to: (a) Use the Prophecy Software during the Subscription Term, subject to the applicable License Type restrictions (as specified on an Order Form); (b) Use any Generated Code in perpetuity subject to the restrictions set forth below in Section 1.2; (c) Permit Affiliates or third party contractors performing services on Customer’s behalf to use the Prophecy Software and Documentation in accordance with the terms and conditions of this Agreement provided that (i) such use must be solely for the benefit of Customer or Affiliates; and (ii) Customer shall be responsible for all acts and omissions of such third parties.

1.2. Reservation of rights, restrictions

Prophecy owns all right title and interest in and to the Prophecy Software and any derivative works thereof, and no other license to the Prophecy Software is granted to Customer by implication, estoppel or otherwise. Customer understands and agrees that Customer’s ability to use the Prophecy Software is determined by the Software Subscription Key provided to the Customer. Customer agrees not to: (i) use the Prophecy Software other than for licensed purposes, such as for the processing of Unsupported Code other than Generated Code; (ii) prepare derivative works from, disassemble, reverse compile, reverse engineer, modify, copy or use the Prophecy Software in any manner except as expressly permitted in this Agreement; (iii) attempt to circumvent, disable or defeat the limitations on Customer’s use of the Prophecy Software encoded into the Software Subscription Key, including without limitation any restrictions on the ability to process or utilize binary code artifacts that were created using TOS; (iv) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Prophecy Software or the Generated Code in whole or in part to any third party; (v) use the Prophecy Software or the Generated Code for providing time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or as a service offering; (vi) alter or remove any proprietary notices in the Prophecy Software or the Generated Code; and (vii) make available to any third party any analysis of the results of operation of the Prophecy Software, including benchmarking results, without the prior written consent of Prophecy. Notwithstanding the foregoing restrictions, in the event Customer has purchased a Software Subscription license for Commercial Use (as such term is defined below), Customer shall be permitted to use the Prophecy Software to provide third party services in cases where such third parties access the Customer provided applications or services, but where such third parties do not have the ability to install, configure, manage or have direct access to the Prophecy Software. Prophecy hereby agrees, subject to payment of the applicable fees, to permit such use and the terms of this Agreement, including references to“internal use” and/or “internal business operations” shall be deemed to include and permit such use (hereafter referred to as “Commercial Use“). 

1.3. Delivery, software subscription keys and use manager

The Prophecy Software is only available electronically via download and will not be available in any other format. Prophecy Software shall be deemed delivered to Customer upon Prophecy making available to Customer the Software Subscription Key. Customer understands and agrees that a Software Subscription Key provided by Prophecy is required to enable the Prophecy Software and that Software Subscription Keys are valid only during the Subscription Term. Customer further understands and agrees that: (i) in case of breach by Customer of the payment terms stipulated in this Agreement, Prophecy will have the right to suspend the Software Subscription and such suspension will not give rise to any modification of the amount of the Software Subscription fee or to any extension of the Subscription Term; (ii) the Prophecy Software will, in the absence of any renewal of the Subscription Term, be disabled automatically upon the expiration of the Subscription Term and (iii) the Software Subscription Key will automatically prevent the use of the Prophecy Software in violation of the applicable License Type restrictions, as set forth in the Order Form. Finally, Customer understands and agrees that upon activation of the Prophecy Software, a software module (“Use Manager”) will provide certain information to Prophecy regarding the system environment in which the Prophecy Software is operating and will monitor the use and security of the Prophecy Software. For example, the Use Manager uses HTTP protocol and encryption to provide information about the Operating System, amount of RAM, type and number of CPUs and MAC address, as well as the Customer name, license type, version of the Prophecy Software being used, start and end date of the Software Subscription, and number of active users, provided, however, that under no circumstances does the Use Manager capture or transmit to Prophecy any Customer data being processed by the Prophecy Software. Use Manager may optionally provide statistics that can help our support team proactively reach out and suggest fixes. Use Manager may also optionally receive version upgrade instructions from Prophecy and suggest upgrades to the administrator of Prophecy software for the customer.

2. Services

2.1. Support services

Subject to the payment by Customer to Prophecy of applicable fees, Prophecy will provide Customer with the Support Services specified in the Order Form. Support Services are provided to Customer solely for Customer’s internal use and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Prophecy reserves the right to modify reasonably its Support Services Policy from time to time, provided that in no event will Prophecy materially degrade or diminish the level and quality of Support Services provided under its Support Services Policy during the term of this Agreement. Prophecy shall have no obligation to support versions of the Prophecy Software that have been modified by Customer or used to process, manipulate, or otherwise utilize Unsupported Code.

2.2. Consulting services

Subject to the payment by Customer to Prophecy of applicable fees, Prophecy agrees to make commercially reasonable efforts to provide Customer with consulting services (“ConsultingServices”), if any, set forth on an applicable Order Form, or as may be further described in an applicable Statement of Work. Unless expressly specified in the applicable Order Form, Consulting Services are provided on a time and material (“T&M”) basis pursuant to the T&M rates specified in the applicable Order Form. Any hour worked during a weekend (Saturday, Sunday) or Bank/National Holiday will be charged at 1.5 times the agreed hourly rate. Any estimate of time or number of days or hours required to perform Consulting Services or any monetary amount stated in the applicable Order Form or Statement of Work for T&M Services, shall be deemed an estimate for Customer’s budgeting and Prophecy resource scheduling purposes.

2.3. Subcontractors

Prophecy reserves the right to use subcontractors to perform Services on Prophecy’s behalf, and Customer hereby consents to such use, provided that Prophecy shall remain solely responsible to Customer for the provision of all applicable Services.

2.4. Customer policies

While on premises owned, controlled or hired by Customer, all Prophecy personnel shall conduct themselves in accordance with the standard health, safety and security policies of Customer.

2.5. Ownership of work products and other materials

In the course of performing the Services, Prophecy may create derivative works of the Prophecy Software, new software or other works of authorship (collectively “Work Product”). Subject to Customer’s ownership interest in, and Prophecy’s obligations with respect to, Customer’s Confidential Information, Prophecy shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. Prophecy hereby grants to Customer a license to such Work Product under the same terms and conditions as Customer’s license to the Prophecy Software set forth in Section 1.1 above. Notwithstanding the foregoing, and for the avoidance of doubt, in the case of Work Product that are Generated Code, Prophecy shall retain ownership of the Generated Code unless the code is customer business logic. Nothing in this Agreement shall be deemed to prohibit Prophecy from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Services. Customer shall be entitled to keep and use all Materials provided by Prophecy to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Prophecy. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archival purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. All Prophecy trademarks, trade names, logos and notices present on the Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any Prophecy trademarks withoutProphecy’s express written authorization.

2.6. Customer obligations

Customer agrees to provide Prophecy with such cooperation, materials, information, access and support which Prophecy deems to be reasonably required to allow Prophecy to successfully provide the Services. Customer understands and agrees thatProphecy’s obligations to provide Services are expressly conditioned uponCustomer providing such cooperation, materials, information, access and support.

3. Confidentiality

3.1. Confidential Information

Subject to the limitations set forth in Section 3.2, all information disclosed by one party to the other party during the term of thisAgreement, whether in oral, written, graphic or electronic form, shall be deemed to be Confidential Information. Confidential Information of Prophecy includes non-public information regarding features, functionality and performance of the Services and Software. Confidential Information of Customer includes all data provided by Customer to Prophecy to enable the provision of the Services (Customer Data).

3.2. Exceptions

Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on anon-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party's ConfidentialInformation; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.

3.3. Non disclosure

Each party covenants that it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party's Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.

3.4. Return; destroy; protect

On the disclosing party’s request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains information disclosed by the disclosing party, the receiving party will continue to protect such information in accordance withSection 3.3: (x) for so long as it meets the definition of ConfidentialInformation above; (y) if it constitutes a trade secret for so long as required under applicable law, and/or (z) if it constitutes personal data received from the disclosing party for so long as required by applicable law.

3.5. Customer identification

Prophecy may identify Customer as a user of the Services and may use Customers name and logo in Prophecy’s customer list, press releases, blogposts, advertisements, and website.

4. Proprietary rights

4.1. Ownership rights

Customer owns all right, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and all intellectual property rights related to any of the foregoing. Prophecy owns and retains all right, title and interest in and to (a) the Services and Software, all improvements ,enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.

4.2. Protection of customer data

Prophecy will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure ofCustomer Data by Prophecy personnel except (a) to provide the Services and to prevent or address service or technical problems, or (b) as Customer expressly permits in writing.

4.3. Removal of customer data

Upon termination or expiration of this Agreement, in the event Prophecy has any Customer Data, Prophecy shall delete all such Customer Data from its systems without retaining any copies thereof.

5. Fees, payments and taxes

5.1. Fees

Customer agrees to pay Prophecy the applicable Software Subscription, Services and CloudSubscription fees stated on the Order Form.

5.2. Invoicing

Unless otherwise specified on an Order Form or Addendum, the fees for the Services, Software Subscription and/or Cloud Subscription shall be invoiced upon execution of the applicable Order Form by both Parties. If no Order Form is executed, then upon receipt and acceptance of a valid Purchase Order byProphecy.

5.3. Payment terms

Unless otherwise specified on an Order Form all invoices will be paid in the USD and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. Any amount not paid when due may be subject to interest at the rate of one and one-half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Prophecy’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Prophecy hereunder. If an applicable tax authority requires Prophecy to pay any taxes that should have been payable by Customer, Prophecy will advise Customer in writing, and Customer will promptly reimburse Prophecy for the amounts paid. If Customer believes that Prophecy has billed Customer incorrectly, Customer must contact Prophecy no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Prophecy’s customer support department. Without limiting its other remedies, Prophecy may suspend Services for nonpayment of fees.

6. Term and termination

6.1. Term

This Agreement will continue from the Effective Date until the earlier of: (a) the expiration of all Services subscriptions, or (b) termination pursuant to Section 6.2 below (the Term). Each Services subscription will run for the subscription term specified in the applicable Order Form and will renew automatically for additional one-year periods unless a party provides notice of non renewal to the other party at least 30 days prior to expiration of the applicable term.

6.2. Termination for cause

In addition to any other remedies it may have, either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party (a) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets (Termination for Cause). If Prophecy terminates this Agreement forCustomers breach, Customer remains obligated to pay the balance due onCustomers account for the remainder of the Term, computed in accordance with the applicable Order Form(s), and will be billed for such unpaid fees.

6.3. Survival

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. Warranties and disclaimer

7.1. Authority

Each of Prophecy and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.

7.2. Services Warranty

Prophecy shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform implementation and support Services in a professional and workmanlike manner.

7.3.

PROPHECY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OFTHE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED AS IS AND PROPHECY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. Indemnification

8.1. By Prophecy

Prophecy will defend or settle any claims, actions and demands brought by third parties against Customer and Customers subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively Indemnified Parties) where the third party expressly asserts that the Software: infringes such third party’s trademark or copyright arising under the laws of the United States, or Prophecy misappropriated such third party’s trade secrets in the development of the Software (collectively, Claims). Customer must give written notice of the Claim to Prophecy promptly after Customer becomes aware of the Claim, and Prophecy’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Prophecy, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Prophecy or combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customers use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Prophecy to be infringing, Prophecy may, at its option and expense (x) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid, unused fees for the Services.

8.2. By customer

Customer will indemnify, defend and hold harmless (by counsel reasonably satisfactory to Prophecy) Prophecy and its Indemnified Parties against all liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) alleging that the Customer Data or its use has infringed the rights of or otherwise caused harm to a third party, or violated applicable law; provided that in any such case Prophecy gives written notice of the Claim to Customer promptly after Prophecy becomes aware of such Claim, and Customers indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice.

9. Limitation of Liability

9.1. No consequential damages

IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS AND SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES ORLOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF PROPHECY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMERS LIABILITY FOR MISAPPROPRIATION OF PROPHECY'S INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND SERVICES.

9.2. Direct damages

THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO PROPHECY DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TOANY CLAIM, OR $100 IF CUSTOMER IS USING A TRIAL OF THE SERVICES. THE FOREGOING SHALL NOT LIMIT CUSTOMERS PAYMENT OBLIGATIONS UNDER SECTION 5.

10. Miscellaneous

10.1. No agency

No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.

10.2. Notices

All notices under this Agreement must 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 facsimile or 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 to each party at its respective address provided on the initial Order Form.

10.3. Enforceability

If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.

10.4. Force Majeure

If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.

10.5. Assignment

This Agreement may not be assigned by either party without the other party’s consent, whether by operation of law or otherwise; provided that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party.Any other purported assignment shall be void.

10.6. Integration

This Agreement is the complete 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 this Agreement. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Prophecy in lieu of or in addition to Prophecy’s Order Form, Customers purchase order shall be binding only as to the following terms: (a) the Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.

10.7. Amendment;

Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conductor failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.

10.8. Governing law and jurisdiction; Attorney fees

This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for theInternational Sale of Goods or the Uniform Computer Information TransactionsAct. Any legal action relating to this Agreement must be brought in the federal or state courts in the Northern District of California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.

11. Effective Date

This Terms of Service is effective as the date listed in the title.