MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is entered into between you (“Customer”) and Heap Inc. (“Heap”), a Delaware corporation, for Customer’s purchase of Services and, where applicable, Professional Services, from Heap.
1. LICENSE GRANT; RESTRICTIONS; NO-FEE ACCESS.
1.1 License Grant. Heap will make the Services available to Customer as a software-as-a-service (“SaaS”), and grants Customer a license to access the Services through its documented access points and to use its documented functionality for its internal operations for the duration of the subscription term and to the limits of the subscription scope described in the Order Form.
1.2 Restrictions. Except as expressly authorized in the Agreement, Customer will not, and will ensure that Users do not, directly or indirectly:
(i) reverse engineer, obtain, or attempt to create or derive, the source code of the Services;
(ii) modify, translate, enhance or otherwise change the Services or prepare derivative works of the Services, including creation and distribution of add-ons or enhancements or incorporation either independently or into another product unless expressly agreed between the parties;
(iii) use the Services for any purpose other than the purpose outlined in Section 1.1, including for: benchmarking, competitive analysis, or the development of a competing software product; or
(iv) use the Services to violate third party rights or applicable laws or to store or transmit infringing, libelous, unlawful, or tortious material or store material in violation of third party rights or applicable laws.
1.3 No-Fee Access. Heap may provide Services for evaluation, beta, trial, or free purposes solely for Customer’s internal evaluation (“Trial Services”). Customer’s access and use to Trial Services will terminate on the end date set forth in the applicable Order Form or immediately upon notice from Heap in its sole discretion. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL SERVICES PROVIDED UNDER THIS SECTION ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT ANY INDEMNIFICATION, SUPPORT, OR WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. Except to the extent such terms conflict with this Section, all other terms of this Agreement apply to the Trial Services.
1.4 Professional Services. If Heap provides Professional Services to Customer, the scope and fees for such services will be described on an Order Form or Statement of Work, which will be governed by this Agreement. All Professional Services will be performed in a manner consistent with industry standards.
1.5 Security and Privacy. The Services will be hosted on enterprise-grade cloud infrastructure that provides industry-standard security and privacy controls. Heap will further maintain and adhere to a security and privacy plan that provides for no less than industry standard processes and controls for the development and maintenance of the Services and for the collection and storage of all data held within the Services.
1.6 Business Continuity Plan. Heap will maintain a business continuity plan, infrastructure, and processes that conform to the industry standards for enterprise SaaS providers.
2.1 Mutual Obligations. Both parties will comply in all material respects with applicable laws, regulations, rules, orders, and other requirements of any governmental authority.
2.2 Customer Obligations. Customer agrees that:
(i) it will be responsible for all Customer’s Users’ activity and compliance with this Agreement, and if Customer becomes aware of any violation, Customer will immediately terminate the offending party’s access to the Services and notify Heap; and
(ii) it is legally able to: (a) process Customer Data and (b) provide Customer Data to Heap and its Affiliates, including obtaining appropriate consents or rights for such processing.
3. OWNERSHIP; FEEDBACK; CUSTOMER DATA; PROTECTION.
3.1 Ownership. Heap is the sole and exclusive owner of all rights, title and interest in and to the Services and Heap’s proprietary property and, unless expressly granted, reserves all right, title, and interest in and to the same.
3.2 Feedback. Customer may provide suggestions, comments, or other feedback to Heap regarding the Services (“Feedback”). Customer grants to Heap a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use Feedback for any purpose.
3.3 Customer Data. Customer Data is and will remain the property of Customer, and Customer is solely responsible for the procurement, accuracy, legality, and content of Customer Data. Customer hereby grants Heap the right to host and process Customer Data for providing and improving the Services and to support Customer under this Agreement.
3.4 Protection. Each party will: (i) comply with its obligations under applicable data protection and privacy laws, and (ii) maintain a security program in accordance with industry standards that protects the security of Confidential Information. Such security program will include appropriate administrative, technical, and physical safeguards. The parties will process personal data in accordance with the Data Processing Addendum, which is incorporated by reference.
4.1 Definition. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including, without limitation: Customer Data, the terms and conditions of the Agreement (including pricing), business and marketing plans, technology and technical information, product plans and designs, and business processes.
4.2 Confidentiality Obligations. The Receiving Party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the Disclosing Party’s prior written consent. The Receiving Party will only use the Confidential Information for the purposes of this Agreement and will use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect its own confidential information. The obligations in Section 4 will continue for three (3) years following the Disclosing Party’s initial disclosure of the Confidential Information, except for Confidential Information that is considered trade secret, which will be subject to these confidentiality obligations for so long as the Confidential Information remains a trade secret.
4.3 Exceptions. The obligations in this Section will not apply to any information that: (a) is or becomes publicly available without breach of this Agreement; (b) is independently developed by the Receiving Party without using the Confidential Information; (c) is disclosed to the Receiving Party from a third party not under an obligation of confidentiality; or (d) was in the Receiving Party’s lawful possession before the Disclosing Party’s disclosure.
4.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information if required by law or any judicial or government order, but where legally permissible, the Receiving Party will notify the Disclosing Party of such disclosure and will work with the Disclosing Party to limit such disclosure.
4.5 Remedies. Breach of Section 4 may cause substantial harm for which monetary damages may be an inadequate remedy. Upon breach of Section 4, the Disclosing Party may seek equitable relief, including an injunction, and no bond or other security will be required in obtaining such equitable relief.
5. TERM; TERMINATION; EFFECT OF TERMINATION; SURVIVAL.
5.1 Term. This Agreement will begin on the date executed by both parties (“Effective Date”) and, unless terminated earlier in accordance with this Agreement, will continue for the period specified in the applicable Order Form (“Term”).
5.2 Termination for Breach. Either party may terminate this Agreement upon written notice to the other party if such other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) calendar days following such notice; or immediately if either party becomes insolvent, has ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
5.3 Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately stop using the Services and (i) may download its Customer Data prior to termination or expiration or (ii) request a copy of its Customer Data in an industry-standard format within thirty (30) calendar days following termination or expiration. Following termination or expiration, Heap will have no obligation to store Customer Data and may permanently delete Customer Data. If Customer has prepaid fees and terminated the Agreement in accordance with Section 5.2, Heap will refund Customer any prepaid but unused fees covering the remainder of the subscription term. Any termination or expiration will not relieve Customer of its obligation to pay all fees.
5.4 Survival. Sections 3.1 (Ownership), 3.2 (Feedback), 4 (Confidentiality), 5.3 (Effect of Termination), 5.5 (Survival), 6 (Fees, Late Fees, Billing Disputes), 9 (Indemnification), 10 (Limitation of Liability), Section 11 (Miscellaneous), 12 (Definitions) and any remedies for breach of this Agreement will survive any termination or expiration.
6. FEES; LATE FEES; BILLING DISPUTES.
6.1 Fees. Customer will pay Heap in accordance with the applicable Order Form(s).
6.2 Late Fees. In the event of Customer’s late payment of undisputed fees, Heap will be entitled to interest on the amount owing at a rate of 1.5% per month or the maximum allowed by applicable law, whichever is less. If Heap initiates legal action due to nonpayment of fees, Customer will bear all costs resulting from the collection of such fees.
6.3 Billing Disputes. If Customer reasonably disputes any invoiced amounts prior to payment, it will timely pay the undisputed portion and notify Heap in writing at email@example.com of the disputed amount within thirty (30) business days.
7. SUPPORT SERVICES.
During the Term, Heap will provide Customer with Support Services as described at: https://help.heap.io/getting-started/getting-started-faqs/heap-support-offerings/.
8.1 Warranty. Heap warrants to Customer that the Services will conform, in all material respects, to the official Heap documents (“Documentation”), and the Services will be performed in a professional and workmanlike manner.
8.2 Exceptions. The limited warranty in Section 8.1 will not apply to issues related to:
(i) modification of the Services, unless such modification was made pursuant to the Documentation;
(ii) any unauthorized third-party software or hardware that are operated with or incorporated into the Services;
(iii) negligence, abuse, or misapplication of the Services, including use of the Services other than as set forth in the Documentation;
(iv) failure to comply with any minimum system requirements specified in the Documentation; or
(v) failure in Customer’s infrastructure or network used to access the Services.
8.3 Remedial Efforts. Customer may provide notice of a warranty failure, including a reasonably detailed description of the observed failure, and upon receiving such notice, Heap will have 30 days to correct the failure. If Heap cannot do so, Customer may terminate the Order Form immediately upon written notice and receive a prorated refund for its unused subscription, measured from the date of the warranty failure notice.
8.4 DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 8.1, HEAP MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, AND THE SERVICES ARE PROVIDED “AS IS.” HEAP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO: IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. HEAP DOES NOT WARRANT THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
9.1 Definition. To “Indemnify” is defined as to: (i) defend against all third party claims (including, for example, complaints and causes of action both when filed and when threatened) and regulatory actions (including investigations and disciplinary actions by any government entity with the power to investigate or impose a penalty of any kind) and (ii) to pay all amounts under all theories of liability and damages awarded to such third party or accepted in settlement or imposed as fines of any kind.
9.2 Indemnification by Customer. Customer will Indemnify from claims with respect to infringement or misappropriation of rights resulting from Heap’s use of Customer Data.
9.3 Indemnification by Heap. Heap will Indemnify Customer for the infringement of a patent or copyright, provided that the infringement arises through Customer’s use of the Service or Services according to the Documentation, either alone or (when Heap would be liable for indirect or contributory infringement) in combination with other Customer technology or processes.
In the event of an injunction on the Services, Heap, at its sole discretion, will either: (i) procure for Customer the right to continue to use the Software Services; (ii) replace or modify the Services to make their use non-infringing and without degrading the integrity of the Services; or (iii) Heap may terminate the Agreement or applicable Order Form upon written notice to Customer, and Customer may receive a pro rata refund for the remainder of the term.
9.4 Indemnification Procedure. A party seeking to be indemnified will provide timely notice to the indemnifying party, although untimely notice will relieve the indemnifying party of its obligations only to the extent that the delay has prejudiced its ability to defend the claim. The indemnifying party will have the right to control the defense, including the right to reach a settlement with the claimant; however, the indemnified party will have a right to participate through its own counsel at its own expense and the indemnifying party will not enter into a settlement that requires the indemnified party to pay any amount, take any action, or admit to any liability without the written consent of that party.
10. LIMITATION OF LIABILITY.
EXCEPT FOR A PARTY’S OBLIGATIONS TO INDEMNIFY AND CLAIMS AND RESULTING DAMAGES ARISING OUT OF: SECTION 4 (CONFIDENTIALITY), BUT EXCLUDING DATA PRIVACY CLAIMS, AND A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
A. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES AS TO CLAIMS OF ANY KIND ARISING OUT OF, OR RELATED, THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. EACH PARTY’S AGGREGATE LIABILITY, ITS AFFILIATES, DIRECTORS, EMPLOYEES, AND AGENTS WILL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND DAMAGES NOT TO EXCEED THE TOTAL AMOUNT PAYABLE OR PAID TO HEAP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO TERMINATION.
11.1 Export Control. The Services that Heap provides under this Agreement may be subject to export laws, rules, and regulations of the United States and other jurisdictions. Customer will comply with all export laws, rules, and regulations and hold Heap harmless from any liability for Customer’s violation of U.S. Export Control laws.
11.2 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition or sale of all or substantially all of its assets.
11.3 Force Majeure. Neither party will be responsible for failure or delay in performance by events out of their reasonable control, including, but not limited to: acts of God, Internet outage, terrorism, war, fires, earthquakes, pandemics, and other disasters (each a “Force Majeure”). Notwithstanding the foregoing, Customer shall be liable for payment obligations for Services rendered.
11.4 Independent Contractors. Heap and Customer are independent contractors and nothing in this Agreement creates an employment, partnership, or agency relationship between the parties or any Affiliate. Each party is solely responsible for the supervision and payment of its personnel.
11.5 Publicity. Customer grants Heap the right to identify Customer as a Heap customer, and use Customer’s name, mark, or logo on Heap’s website and marketing materials.
11.6 Notices. Any notice or other communications will be in writing and will be given: (i) one (1) business day after sending by email that provides confirmation of transmission (except notices of termination, intention not to renew, a dispute, or indemnification which must be sent to Heap Accounts Receivable at firstname.lastname@example.org); or (ii) three (3) business days after mailing by first class certified mail, postage prepaid, in each case to the following address (or as otherwise designated by the party):
225 Bush Street, Suite 200
San Francisco, CA 94104
See Order Form
11.7 Governing Law. This Agreement, and any applicable Order Form, will be construed and governed exclusively according to the laws of the State of California, without regard to conflict of law provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California will have exclusive jurisdiction to adjudicate disputes arising out of or relating to this Agreement. Each party consents to the jurisdiction of such courts and waives any right it may have to challenge the appropriateness of such forums. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or any Order Form.
11.8 Entire Agreement; Amendments. This Agreement, along with any Order Form, constitutes the parties’ complete and mutual understanding and supersedes all previous written and oral communications. In the event of any conflict between the Order Form and the Agreement, the Agreement will take precedence, unless expressly set forth in the Order Form. There are no representations, agreements, arrangements, or understandings between the parties relating to the subject matter of this Agreement that are not fully expressed herein. All amendments must be in writing signed by both parties’ authorized representatives.
11.9 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
“Affiliate” means any company or entity that directly or indirectly, controls, is controlled by, or is under common control with such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities or other ownership interest of an entity. Affiliates of either party may conduct business under this Agreement by signing an Order Form.
“Customer Data” means any data, information, or material that Customer makes available to Heap by using the Services.
“Order Form”means the document specifying the Services or Professional Services to be provided by Heap and the fees to be paid by Customer.
“Professional Services” means consulting services offered by Heap.
“Services” means the online software-as-a-service platform and APIs that Heap provides.
“Support Services” means maintenance and support services outlined by Heap.
“User(s)” means Customer, an authorized employee, independent contractor, or agent who uses the Services and Documentation pursuant to the Agreement.
Last updated: June 2023