PATHLIGHT MASTER SERVICES AGREEMENT TERMS AND CONDITIONS
The following terms and conditions together with the order form attached hereto (collectively, this “Agreement”) govern the access and use of the Pathlight Service described in the Order Form (the “Service”).
1. PATHLIGHT SERVICE. Subject to the terms and conditions of this Agreement, during the Subscription Term Customer may access and use the Service for its internal business purposes, and Pathlight will use commercially reasonable efforts to provide the Service.
2. SERVICE CAPACITY. The Service may only be accessed and used by the number of Customer’s employees or contractors stated in this Order Form (the “Service Capacity”) who may only access and use the Service for the purposes of performing services or their job functions for Customer. Additional user seats may be purchased upon payment of corresponding additional Subscription Fees. Customer is responsible for the use of the Service by its users (and their compliance with this Agreement), and for the protection of secrecy of log-in credentials and passwords. Without limiting the foregoing, Customer is responsible for all activities that occur under its account(s), whether or not Customer knows about them.
3. USE OF THE SERVICE. Customer agrees not to: (1) use the Service other than as authorized in this Agreement; (2) modify, alter, decompile or reverse engineer the Service; (3) resell, sublicense, or otherwise make the Service available to any third party; (4) use the Service either directly or indirectly to support any activity that is illegal or that violates the proprietary rights of others; (5) interfere with or disrupt the integrity or performance of the Service; (6) deactivate, impair, or circumvent any security or authentication measures of the Service; (7) access the Service for purposes of benchmarking or monitoring its performance or functionality; or (8) authorize any third parties to do the above. Although Company has no obligation to monitor Customer’s use of the Service, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4. DATA AND CONTENT
4.1 “Customer Data” means all content and data submitted through the Service by Customer or its users. As between Pathlight and Customer, Customer shall own the Customer Data. Customer shall be responsible to obtain all necessary consents for the disclosure of Customer Data to Pathlight via the Service. Customer represents and warrants that it has the right to share Customer Data with Pathlight and that the Customer Data does not and will not misappropriate or infringe any third party proprietary or personal rights.
4.3 Pathlight will store the Customer Data for the period of time required by Pathlight’s data retention policy. Thereafter, Pathlight reserves the right to delete the Customer Data and any such statistical data.
Should Customer wish to retain data made available to it via the Service, Customer acknowledges and agrees that Customer is solely responsible for accessing, downloading and retaining any such data and that Pathlight shall not have any obligations in this regard. In the event of any loss or corruption of Customer Data, Pathlight shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Pathlight. Pathlight shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by Customer or any third party. PATHLIGHT’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 4.3 SHALL CONSTITUTE PATHLIGHT’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA AND ANY DATA MADE AVAILABLE TO CUSTOMER VIA THE SERVICE.
Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked or identified as “confidential” at the time of disclosure, or that is of any nature described in this Agreement as confidential (“Confidential Information”) in connection with the use and/or performance of the Service. Customer Data is the Confidential Information of Customer. Pathlight Confidential Information includes the Service and any business or technical information of Pathlight, including any information relating to Pathlight’s product plans, designs, costs, pricing, finances, marketing plans, business opportunities, personnel, research, development or know-how, and the results of any performance tests of the Service. During the term of this Agreement and for three (3) years thereafter, the receiving party agrees to take reasonable precautions to protect such Confidential Information from unauthorized disclosure, not to use such Confidential Information except as authorized or as necessary to perform its obligations under this Agreement and to not disclose (without the disclosing party’s prior authorization, including any such authorization given under this Agreement) to any third person any such Confidential Information (other than on a need to know basis to the receiving party’s employees, consultants and service providers who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as this Agreement) or as specifically permitted under this Agreement. Confidential Information does not include any information that the receiving party can show: (1) through no fault of the receiving party, is or becomes generally available to the public, or (2) was in its possession or was known prior to receipt from the disclosing party, or (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed without use of any Confidential Information of the disclosing party. The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed).
6. SUBSCRIPTION FEES
6.1 Customer will pay the fees or charges for the Service as specified in the Order Form (“Subscription Fees”). Subscription Fees are due for the entire Subscription Term, although they may be collected monthly for Customer’s convenience. All fees are non-refundable except as specified herein. If Customer’s use of the
Service exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. All Subscription Fees are quoted and shall be paid in United States dollars. Unless otherwise set forth in the applicable Order Form, Subscription Fees are due within 30 days after the date of receipt by Customer of the invoice. Invoiced amounts not disputed by Customer within such 30 day period shall be deemed fully and finally accepted by Customer and Customer waives its right to dispute any invoice after such 30 day period. All amounts payable by Customer under this Agreement will be made without the right of setoff or counterclaim, and without deduction or withholding. All payment obligations are non-cancelable and once paid are nonrefundable. Pathlight reserves the right to modify its fees and charges and to introduce new fees and charges at any time, upon at least 45 days prior notice to Customer, provided that such fees or charges will not become effective until the beginning of the next Subscription Term.
6.2 Without prejudice to other remedies such as suspending or disabling access to the Service or termination of the Agreement under Article 7, late payments will bear interest at 1.5% per month or the maximum rate permitted by law, whichever is less, calculated from the date such amount was due until the date that payment is received by Pathlight. In addition, Customer will reimburse Pathlight out of pocket collection expenses (including reasonable attorneys’ fees) for late payments. Subscription Fees are exclusive of all taxes, levies, duties or other charges imposed by taxing authorities, and Customer is responsible for payment of all such amounts, excluding only taxes based solely on Pathlight’s income. If Pathlight has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Pathlight with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. SUBSCRIPTION TERM AND RENEWAL; TERMINATION
7.1 Unless otherwise set forth in an applicable Order Form, the Initial Subscription Term (as set forth in the Order Form) will automatically renew for successive additional renewal terms of the same duration as the Initial Subscription Term, unless either party notifies the other party of its intent not to renew, at least 30 days prior to the end of the then current Subscription Term. The Initial Subscription Term and each renewal term are each individually referred to herein as a “Subscription Term.”
7.2 Without limiting other available remedies, Pathlight reserves the right to suspend or disable Customer’s access to the Service if Customer has undisputed amounts more than 30 days past due. Pathlight also reserves the right to suspend or disable access to the Service if Pathlight determines Customer has used, or is using, the Service in breach of this Agreement.
7.3 A party may terminate this Agreement with written notice if the other party breaches a material term of this Agreement and fails to correct the breach within 30 days following written notice specifying the breach. If Customer terminates this Agreement for cause, Pathlight will refund the unused portion of the Subscription Fees that Customer had paid for the Service for the remainder of the Subscription Term. In no other circumstance will a refund be made upon termination or expiration.
7.4 Upon any expiration or termination of this Agreement, Customer’s right to access and use the Service will automatically terminate, and Customer may not continue to access or use the Service. Pathlight will have no liability for any costs, losses, damages, or liabilities arising out of or related to Pathlight’s exercise of its termination rights under this Agreement. Any payment obligations as of the expiration or termination (or that relate to activity during the Subscription Term) will remain in effect. The obligations and provisions of Sections 3, 4, 5, this Section 7.4, 8, 9.2, 10, 11 and 12 will survive any expiration or termination of this Agreement.
8. OWNERSHIP RIGHTS
8.1 Pathlight and its licensors own all worldwide right, title and interest in and to the Service, including all worldwide intellectual property rights therein (collectively, the “Pathlight IP”). Customer owns all Customer Data. This Agreement does not convey any proprietary interest in or to any Pathlight IP or any Customer Data or rights of entitlement to the use thereof except as expressly set forth herein. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Order Start Date, and Customer otherwise agrees to reasonably cooperate with Pathlight to serve as a reference account upon request and to document a case study of its use of the Service, and authorizes Pathlight to use its name (and the corresponding trademark or logo) on Pathlight’s website and marketing materials to identify Customer as a customer.
8.2 If Customer provides any ideas, suggestions, or recommendations regarding the Service (“Feedback”) Pathlight will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, Customer grants Pathlight a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit in any manner such Feedback.
9.1 During the term of the Agreement, Pathlight will maintain the Service for Customer at the same level as Pathlight generally maintains it for its other subscribers at no additional charge. Pathlight will use its commercially reasonable efforts to cause the Pathlight Service to be available to Customer during the same time periods that the Pathlight Service is available to Pathlight’s other subscribers generally.
9.2 Customer assumes sole responsibility and liability for results obtained from the use of the Service and for conclusions drawn from such use. Customer is responsible for all management functions and decisions relating to the Service, including without limitation, evaluation and acceptance of the suggestions or information available from Services. Customer also is responsible for the business results achieved from using the Services. Pathlight shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Pathlight by Customer or suggestions or information generated by the Service. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, PATHLIGHT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, PATHLIGHT DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. PATHLIGHT FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO
THE SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PATHLIGHT FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PATHLIGHT OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. LIMITATION OF LIABILITY
EXCEPT FOR INDEMNIFICATION OBLIGATIONS AND BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER:
(A) IN NO EVENT WILL PATHLIGHT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY INFORMATION OR DATA TRANSMITTED OR OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, AND WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT WILL THE TOTAL LIABILITY OF PATHLIGHT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE FOREGOING WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
11.1 Pathlight will: (1) defend Customer against any third party suit, claim, action or demand (a “Claim”) alleging that the Service infringes any copyright or trademark or misappropriates a trade secret of a third party; and (2) indemnify and hold Customer harmless from any final award of damages or settlement amount arising in connection with any such Claim. In the event that Pathlight’s right to provide the Service is enjoined or in Pathlight’s reasonable opinion is likely to be enjoined, Pathlight may obtain the right to continue providing the Service, replace or modify the Service so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF PATHLIGHT AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. Pathlight shall have no liability under this Section 11.1 to the extent that any third-party claims described herein are based on use of the Service in a manner that violates this Agreement or the instructions given to Customer by Pathlight.
11.2 Customer will: (1) defend Pathlight against any Claim (including Claims asserted by Customer’s vendors or customers) arising out of or related to (a) any injury, damage or loss resulting from Customer’s use of the Service (other than any Claim for which Pathlight is responsible under Section 11.1), (b) use of the Service by Customer in a manner that violates this Agreement, or (c) Pathlight’s use of the Customer Data in accordance with this Agreement; and (2) indemnify and hold Pathlight harmless from any final award of damages or settlement amount arising in connection with any such Claim.
11.3 The foregoing indemnity obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of any actual or threatened Claim, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense.
12.1 The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
12.2 This Agreement is governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in California and the parties hereby consent to personal jurisdiction and venue therein.
12.3 Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent. Notwithstanding the foregoing, either party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such party, may assign this Agreement in its entirety to such party’s successor without the other party’s consent. Any attempt to assign this Agreement other than as permitted above will be null and void.
12.4 Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include denial-of-service attacks, unavailability or failures of equipment or services not under control of the party, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
12.5 All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery services, by certified mail or by email, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section.
12.6 This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding this subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to this subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. If any portion of this Agreement is held to be void or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Security is at the forefront of everything we do at Pathlight – we take security very seriously. This is not just about securing our customers, it is also about securing our platform and our customers’ data. It is everyone’s role at Pathlight to make sure we are as secure as possible.
Our service runs 100% on Amazon Web Services’ highly secured data centers which have several certifications, including SOC II, PCI DSS, and HIPAA. We deploy and maintain best practices to secure that infrastructure including network and data security, and customer data segregation.
By default, Pathlight does not store any data from our customers' integrated systems. The only data we store are the aggregated performance metrics and any related metadata. Combined with our advanced sync schema controls, the vast majority of PII never touches our servers.
Pathlight Enterprise customer’s data is siloed in their own single-tenant data warehouse and Virtual Private Cloud. Customers have the option of fully owning and controlling their VPC.
As a customer-first organization, we are committed to not breaking trust with our prospects, customers, or business partners by publicly releasing information about their data, their security, their vulnerabilities, or any proprietary information without their consent. We take the confidentiality of that information seriously.
From stringent employee recruiting and onboarding to office security, access privileges, and infrastructure change management, we ensure industry best practices are being followed by every team member, every day.
We believe in the responsible disclosure of vulnerabilities to our service and will reply to all reported vulnerabilities