Last updated: March 13, 2025

This CaptivateIQ Master Subscription Agreement (the “MSA”) and accompanying Order and applicable statements of work and addenda (collectively, the “Agreement”), constitute a binding agreement between CaptivateIQ, Inc. (“CaptivateIQ”) and the party named as Customer in the Order (“Customer”). This Agreement governs Customer’s access to and use of the Services and any associated Professional Services (defined below). Please refer to Section 15 (Definitions) for certain capitalized terms used in this Agreement.

1. THE SERVICES; PROFESSIONAL SERVICES.

1.1. Subscriptions. Subject to Customer’s compliance with the terms of this Agreement and for the duration of the Subscription Term, CaptivateIQ grants to Customer a non-exclusive and non-transferable right to access and use the Services, for internal purposes only, and only in accordance with applicable user documentation. 

1.2. Updates. CaptivateIQ may modify the Services from time to time without notice to Customer, but CaptivateIQ will not modify the Services to materially reduce its functionality during a Subscription Term without Customer’s prior consent.

1.3. Unpaid Subscription. CaptivateIQ may offer Customer an Unpaid Subscription. Customer’s use of the Unpaid Subscription is subject to any additional terms that CaptivateIQ may specify and is only permitted during the term CaptivateIQ designates. CaptivateIQ may modify or terminate Customer’s Unpaid Subscription at any time and for any reason in its sole discretion, without obligation or liability to Customer. Customer understands that any pre-release version that CaptivateIQ makes available to Customer in an Unpaid Subscription is still under development, may be inoperable or incomplete, and is likely to contain more errors and bugs than generally available in the Services. CaptivateIQ makes no promises that any pre-release version will ever be made generally available. All information regarding the characteristics, features, or performance of any pre-release version is considered CaptivateIQ’s Confidential Information. To the maximum extent permitted by applicable law, CaptivateIQ disclaims all obligations or liabilities with respect to the Unpaid Subscription, including any support, warranty, and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, CAPTIVATEIQ’S MAXIMUM AGGREGATE LIABILITY WITH RESPECT TO AN UNPAID SUBSCRIPTION WILL BE $100.

1.4. Support. During the Subscription Term, CaptivateIQ will provide support services to Customer in accordance with the SSLA.

1.5. Professional Services. If CaptivateIQ and Customer enter into any SOW for Professional Services, CaptivateIQ will provide such Professional Services in accordance with the terms described in the SOW. CaptivateIQ will have no obligation to perform any Professional Services that are not specified in a SOW signed by both Parties.

1.6. Developer Assets. Access to any of our Application Program Interfaces (APIs) is governed by the CaptivateIQ API Terms and Conditions, which is a separate agreement.

2. ACCEPTABLE USE POLICY.

2.1. Customer Obligations. Customer: (i) agrees that it is solely in control of and responsible for the individual permissions and the Authorized Users on its Account; (ii) must suspend an Authorized User’s access to the Services if it reasonably determines that an Authorized User’s use of the Services disrupts or creates a security risk to the Services or CaptivateIQ systems or an Authorized User is using the Services in violation of any applicable law or this Agreement; (iii) agrees not to access the Services by any means other than through the interface that is provided by CaptivateIQ; and (iv) ensures that each username, password, and account will be used by one Authorized User. Customer will notify CaptivateIQ promptly of any unauthorized use of any password or account or any known or reasonably suspected breach of security or misuse of the Services.

2.2. Customer Restrictions. Customer must ensure that Customer and its Authorized Users will not: (i) interfere or attempt to interfere with the proper working of the Services; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Services; (iii) modify, translate, or create derivative works based on the Services; (iv) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (v) use the Services for time sharing or service bureau purposes or otherwise for the benefit of a third party (except for the benefit of the Authorized Users as part of the purpose contemplated in the Agreement); (vi) use the Services for competitive research or for scoping, benchmarking, developing, or providing any similar or competitive product or services; (vii) remove or otherwise alter any proprietary notices or labels from the Services; (viii) use the Services to create any other product or service; or (ix) scan or test vulnerability of the Services without CaptivateIQ’s prior written consent. Customer will use the Services in compliance with the rights granted under this Agreement and all applicable laws or regulations.

2.3. Prohibited Content. Customer must ensure that it and its Authorized Users will not upload or input any content to the Services that: (i) infringes or misappropriates any Intellectual Property Rights or proprietary or privacy rights of any party; (ii) is considered Sensitive Personal Information; (iii) it does not have a right to upload or input under applicable law or under contractual or fiduciary relationships; (iv) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; or (v) is unlawful, harmful, or otherwise objectionable.

3. INTELLECTUAL PROPERTY RIGHTS.

3.1. CaptivateIQ Intellectual Property. Except for the rights explicitly granted in this Agreement, CaptivateIQ retains all right, title, and interest in and to the Services, the De-Identified Data, and all data (but excluding Customer Content), software, products, works, and other intellectual property created, used, or provided by CaptivateIQ for the purposes of this Agreement.

3.2. Feedback Disclaimer. To the extent Customer provides CaptivateIQ with any Feedback, nothing in this Agreement will restrict CaptivateIQ’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit the Feedback, without compensating or crediting Customer.

3.3. Marketing Rights. Unless otherwise agreed to in the Order, CaptivateIQ may: (i) use Customer’s name, trademarks, and logo in its marketing materials for CaptivateIQ’s business purposes; (ii) use Customer as a reference for CaptivateIQ; and (iii) request Customer provide a testimonial to CaptivateIQ for use in CaptivateIQ’s marketing materials.

4. PAYMENTS.

4.1. Fees. Customer will pay CaptivateIQ the fees for the Services and any Professional Services described in any Order and any SOW. Unless otherwise stated in the Order or SOW, fees are based on the Services or Professional Services purchased and not actual usage. CaptivateIQ will not refund any fees for unused Services or Professional Services. Except as otherwise specified in an applicable Order or SOW, all fees are in U.S. Dollars, will be invoiced in advance, and are due within 15 days of the date of invoice. All payments are final, non-cancelable, and non-refundable, provided that if CaptivateIQ terminates an Order, SOW, or Agreement, without cause, Customer will be entitled to a prorated refund of prepaid amounts. 

4.2. Fee Adjustments. The fees for each Renewal Term are subject to change at the beginning of the applicable Renewal Term, provided that CaptivateIQ notifies Customer of any such changes to the fees at least 45 days prior to start of the applicable Renewal Term. 

4.3. Late Charges. Late payments are subject to interest charges equal to the lesser of 1.5% per month or the maximum amount allowed by law.

4.4. Taxes. Unless otherwise specified on the applicable invoice, the fees paid by Customer are exclusive of all taxes, levies, or duties imposed by relevant taxing authorities, if any, and Customer is responsible for payment of all such taxes, levies, or duties, excluding taxes based on CaptivateIQ’s income.

4.5. Usage Review. Customer agrees to allow CaptivateIQ to review the number of Seats, the number of Records, and the amount of data stored to determine Customer’s actual use. In the event Customer’s actual usage of the Seats or the Records in the Integration Platform exceeds the amount or the data limits listed on the Order, Customer and CaptivateIQ agree to enter into a new Order for additional Seats or Records or different data limits. If Customer does not agree to enter into a new Order, CaptivateIQ will limit the usage of the Services to the Seats, Records, or data limitations listed in the applicable Order.

5. CUSTOMER CONTENT.

5.1. Ownership & License. Customer owns and retains the rights in Customer Content. Customer is solely responsible for: (i) the accuracy, quality, and legality of Customer Content; (ii) how Customer acquired Customer Content; and (iii) correcting errors and omissions in Customer Content. Customer grants CaptivateIQ a worldwide, limited, revocable, non-exclusive right, and license to use and reproduce Customer Content solely for the purposes of providing Customer with the Services, any Professional Services, and Support Services during the Subscription Term. Customer acknowledges that CaptivateIQ has no obligation to monitor the information its Authorized Users submit to the Services and CaptivateIQ. 

5.2. De-Identified Data. In providing the Services, CaptivateIQ may compile and use De-Identified Data and CaptivateIQ may use such De-Identified Data for its lawful business purposes, including analyzing, improving, and enhancing the quality and nature of the Services.

5.3. Disclosure; Responsibility. If Customer or its Authorized Users choose to use the Services to share Customer Content with a third party, Customer is solely responsible for that disclosure, and what any third parties do with the shared Customer Content. Likewise, Customer is solely responsible for any actions its Authorized Users take with respect to: (i) Customer Content, including deleting, changing, or corrupting Customer Content; and (ii) Customer’s Account. 

6. CONFIDENTIALITY.

The Receiving Party will only use the Disclosing Party’s Confidential Information to exercise its rights and fulfill its obligations under this Agreement, and will use reasonable care to protect against the disclosure of the Disclosing Party’s Confidential Information. The Receiving Party must maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the Disclosing Party. The obligations in this Section 6 do not apply to information that: (i) is made generally available to the public without breach of this Agreement; (ii) is developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is disclosed to Receiving Party by a third party without restriction; or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that Receiving Party promptly notifies Disclosing Party, in writing, if legally permissible to do so. The Receiving Party will comply with the Disclosing Party’s reasonable requests to oppose and narrow the scope of disclosure of its Confidential Information at the Disclosing Party’s cost. Upon Disclosing Party’s request, Receiving Party will return to the Disclosing Party all Disclosing Party’s Confidential Information in its possession. The Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that all such third parties are bound by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as this Agreement. Upon termination of this Agreement, the Receiving Party will continue to maintain the confidentiality of the Disclosing Party’s Confidential Information for 3 years. The terms of this confidentiality provision supersede any non-disclosure and confidentiality agreement entered into by the parties prior to the Effective Date of this Agreement.

7. DATA PRIVACY.

7.1. Security. CaptivateIQ will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Content; and notify Customer within 72 hours upon becoming aware of unauthorized access to Customer Content. 

7.2. DPA. To the extent Customer’s use of the Services involves the processing of personal data, CaptivateIQ and Customer agree to the terms of the DPA. 

8. THIRD PARTY SERVICES; INTEGRATION PLATFORM.

8.1. Third Party Services. Customer may connect the Services to Third Party Services in its sole discretion. To take advantage of the connection, Customer may be: (i) charged connector fees as described in the Order; and (ii) required to authenticate, register for, or log into Third-Party Services through the Services or on the websites of the Third Party Services. By enabling the connection, Customer authorizes CaptivateIQ to access Customer’s accounts on the Third-Party Services on Customer’s behalf for the purpose of integrating Customer’s experience on the Services with such Third Party Services. Customer’s use of the Third-Party Services and the processing of any personal data or personal information by the Third-Party Services are governed solely by the agreement between Customer and the provider of such Third-Party Services. Customer agrees that CaptivateIQ will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods, or services available on or through any such Third-Party Services. CaptivateIQ does not make any warranties or representations regarding security, confidentiality, or performance of any Third-Party Services. To the extent any Third-Party Services processes personal data or personal information, the third party is Customer’s data processor and is not CaptivateIQ’s data sub-processor. 

8.2. Integration Platform. The terms of this Section 8.2 only apply if an Order or SOW between the Parties includes the Integration Platform. If an Order or SOW includes the Integration Platform, the Services will include an embedded version of Workato’s hosted platform which uses Recipes and Connectors. Accordingly, Customer grants Workato a worldwide, royalty-free, non-exclusive license to use the Customer Content solely for the purposes of providing the Integration Platform. CaptivateIQ and Workato may compile Integration Usage Data and may use such Integration Usage Data for the purposes of implementing, maintaining, and improving the Services, the Integration Platform and related products and services. CaptivateIQ may share any Feedback Customer provided to CaptivateIQ regarding the Integration Platform with Workato. Customer grants Workato a royalty free, worldwide, perpetual, and irrevocable license to use such Feedback without the obligation to report on such use and without any other restrictions. Customer agrees that the limitations of liability in Section 10 apply to Workato, as logic requires, with respect to the Integration Platform. NOTWITHSTANDING ANYTHING ELSE IN THIS MSA, INTEGRATION PLATFORM IS PROVIDED TO CUSTOMER ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER WORKATO NOR CUSTOMER WARRANTS TO THE OTHER WITH RESPECT TO THE SECURITY OF THIRD-PARTY INFRASTRUCTURES OR THIRD-PARTY PRODUCTS. 

CaptivateIQ and Customer may agree to enable the creation of Recipes and Connectors by Customer within the Integration Platform. The Recipes and Connectors created by Customer are private by default. Customer can decide, at Customer’s sole discretion, to share the private Recipes and Connectors with other Workato users by marking them “public” in the Integration Platform. Customer grants Workato an irrevocable, perpetual, transferable, sublicensable, and worldwide license under any rights Customer owns in those Recipes and Connectors that are marked public, to view, use, copy, modify, and distribute those Recipes and Connectors. Customer agrees not to assert any claim or prosecute any action against CaptivateIQ, Workato or their users for infringement or misappropriation of any Recipes or Connectors which are similar to, or the same as, any Recipes and Connectors created by Customer.

9. WARRANTIES; DISCLAIMER.

9.1. Mutual Warranties. Both Parties represent and warrant: (i) that it has the necessary corporate authority to enter into this Agreement; (ii) this Agreement is a valid and binding obligation enforceable against it; and (iii) it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.

9.2. Customer Warranty. Customer represents and warrants that Customer owns all Customer Content or has obtained all rights, including providing privacy notices or obtaining consents, required to use Customer Content in connection with the Services and grant CaptivateIQ the rights in this Agreement.

9.3. CaptivateIQ Warranties. CaptivateIQ warrants that: (i) it will perform the Services in conformity in all material respects with the Documentation; and (ii) it will provide any Professional Services in a professional manner, consistent with recognized industry standards. Customer’s exclusive remedy and CaptivateIQ’s entire liability for a breach of the warranties in this Section 9.3 is limited to replacement of the non-conforming Services or re-performance of the Professional Services, as applicable. If CaptivateIQ is unable to provide such Services or re-perform such Professional Services as warranted within a commercially reasonable time of the receipt of the written notice of the breach, Customer will be entitled to terminate any applicable Order and SOW and receive a pro-rata refund of any prepaid, unused fees for the remainder of the then-current Subscription Term after the effective date of termination. 

9.4. DISCLAIMERS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CAPTIVATEIQ EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. CAPTIVATEIQ DOES NOT WARRANT THAT THE SERVICES OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR WILL WORK WITH OR NOT INTERRUPT OR DAMAGE CUSTOMER’S THIRD-PARTY SERVICES OR CUSTOMER CONTENT (INCLUDING ANY CONTENT CUSTOMER MAY STORE ON CUSTOMER’S THIRD PARTY SERVICES), AND NO INFORMATION, ADVICE, OR PROFESSIONAL SERVICES OBTAINED BY CUSTOMER FROM CAPTIVATEIQ OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. 

10. LIMITATION OF LIABILITY.

10.1. EXCLUSION OF DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING CONTRACT, TORT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR BUSINESS INTERRUPTION, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2. MAXIMUM AGGREGATE LIABILITY. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER OR SOW IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY OR, IF NO FEES APPLY, $100 U.S. DOLLARS. NOTWITHSTANDING THE PRECEDING SENTENCE, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO BREACHES OF SECTION 6 (CONFIDENTIALITY), WILL NOT EXCEED TWICE THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER OR SOW IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS ON LIABILITY CONTAINED IN THIS SECTION 10.2 WILL NOT APPLY TO CUSTOMER’S BREACH OF SECTION 2 (ACCEPTABLE USE POLICY), EITHER PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 11 (INDEMNIFICATION), OR CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. CAPTIVATEIQ'S AND CUSTOMER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

11. INDEMNIFICATION. 

11.1. Customer Indemnification. Customer will, at its own expense, defend and indemnify CaptivateIQ and its officers, directors, employees, and Affiliates from and against any Claims, and all damages, costs, liabilities, and expenses (including reasonable attorneys’ fees), in each case, that are actually paid or payable to third parties under such Claims, to the extent such Claims: (i) allege that Customer Content, or Customer’s use of the Services in violation of this Agreement, directly infringes a patent, copyright, or trademark of a third party; or (ii) arise from incorrect Payouts directly related to inaccuracies or errors in Customer Content. 

11.2. CaptivateIQ Indemnification. CaptivateIQ will, at its own expense, defend and indemnify Customer and its officers, directors, employees, and Affiliates from and against any Claims, and all damages, costs, liabilities, and expenses (including reasonable attorneys’ fees), in each case, that are actually paid or payable to third parties under such Claims, to the extent such Claims allege that the use of the Services as contemplated under this Agreement directly infringes a patent, copyright, or trademark of a third party. This indemnity obligation will not apply in the event a Claim arises from: (i) Customer’s breach of the Agreement or alteration of the Services; or (ii) the combination or use of the Services with any services, hardware, connection, interface, data, or business processes not provided by CaptivateIQ, to the extent such combination or use contributed to the infringement. In the event any Claim arises which CaptivateIQ may be required to indemnify Customer, or CaptivateIQ believes such a Claim may arise, CaptivateIQ may, at its option: (i) secure the necessary rights and licenses for Customer to continue using the Services; (ii) modify the Service such that it is non-infringing; or (iii) terminate this Agreement on written notice to Customer (and in such event, CaptivateIQ will provide Customer with a pro-rata refund of all fees paid in advance for Services not yet provided). This Section 11.2 is Customer’s sole remedy, and CaptivateIQ’s exclusive liability, with respect to any Claim of patent, copyright, or trademark infringement.

11.3. Indemnification Procedures. Each party’s indemnification obligations are expressly conditional on the party seeking indemnification providing the indemnifying party with: (i) prompt written notice of the Claim; (ii) exclusive control of the defense and settlement of the Claim, except that the indemnifying party may not settle any Claim without the indemnified party’s prior written consent, not to be unreasonably withheld, unless it fully and unconditionally releases the indemnified party of all liability; and (iii) all reasonable assistance in the defense and settlement of the Claim, at the indemnifying party’s sole expense, provided that the indemnified party may, at its own expense, retain counsel and participate in the defense or settlement of the Claim. 

12. DISPUTE RESOLUTION BY BINDING ARBITRATION.

Except for claims for injunctive or equitable relief or claims regarding confidentiality or Intellectual Property Rights, which may be brought in any competent court, any dispute arising under this Agreement must be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (JAMS) by 3 arbitrators appointed in accordance with such rules. The arbitration will take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement is entitled to recover reasonable costs and attorneys’ fees.

13. TERM; TERMINATION.

13.1. Term. This MSA commences on the Effective Date and continues until all Orders or SOWs under this MSA have expired or been terminated. 

13.2. Automatic Renewal. Unless a party provides written notice of non-renewal at least 30 days before the end of the then current term on an applicable Order or SOW, the Order or SOW will automatically renew for the specified Renewal Term. 

13.3. Temporary Suspension. CaptivateIQ may temporarily suspend Customer’s access to the Services if CaptivateIQ reasonably determines that: (i) Customer failed to pay fees owed to CaptivateIQ in accordance with this Agreement and at least 30 days have passed since CaptivateIQ first sent notice of Customer’s nonpayment; or (ii) Customer is using the Services in violation of Section 2 (Acceptable Use Policy). CaptivateIQ will not be liable to Customer or any other third party for any suspension in accordance with this section. 

13.4. Termination for Cause. Either party may terminate the Agreement if the other party: (i) in full or in part, acquires ownership in or control of or is acquired by or becomes controlled by, a competitor of the terminating party; (ii) ceases its business operations or becomes subject to insolvency or other similar proceedings and such proceedings are not dismissed within 90 days; or (iii) is in material breach of the Agreement and that party fails to cure the breach within 30 days of written notice of material breach. 

13.5. Effect of Termination. Upon termination of this Agreement and all applicable Orders or SOWs, CaptivateIQ will: (i) cease providing the Services; and (ii) promptly invoice Customer for any unpaid amounts owed and Customer will pay CaptivateIQ for such amounts. To the extent such termination is the result of a material, uncured breach by CaptivateIQ, Customer is entitled to a pro-rata refund, as of the effective date of the termination, of any prepayment for any Services not yet performed. CaptivateIQ will, after 60 days following termination of this Agreement and all applicable Orders or SOWs, delete Customer Content in CaptivateIQ’s possession or control. Upon request, CaptivateIQ will provide Customer with access to Customer Content during the 30 days following termination, solely for Customer to download Customer Content to Customer’s own data storage systems. 

14. MISCELLANEOUS.

14.1. Governing Law; Venue. This Agreement will be governed by the laws of the State of California without regard to the principles of conflicts of law. Customer and CaptivateIQ expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of resolving any dispute arising out of or in connection with this Agreement and not subject to arbitration. The United Nations Convention on Contracts for the International Sales of Goods and Uniform Computer Information Transactions Act do not apply to the Agreement.

14.2. Entire Agreement. The failure of either party to exercise or enforce any right or provision of this Agreement will not be a waiver of that right. This Agreement constitutes the complete and exclusive agreement between the Parties and supersedes all prior agreement or understanding, written or oral, between the Parties for the subject matter of this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the Parties agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. The Agreement includes URL links to other terms, which are incorporated by reference into the Agreement.

14.3. Order of Preference. In the event of a conflict between the MSA and any SOW, Order, or addenda, the order of preference will be the MSA, then the Order, SOW, or addenda, unless the applicable document clearly specifies that it modifies the MSA.

14.4. Force Majeure. Except for payment obligations under the Agreement, neither party will be liable for, or be considered to be in breach of this Agreement on account of, delay or non-performance of its obligations if the cause of delay or non-performance is a Force Majeure Event. After notifying the other party within a commercially reasonable time of the event, the affected party will be relieved from its obligations as long as the Force Majeure Event lasts and hinders the performance of its obligations. 

14.5. Survival. The following provisions survive any termination or expiration of this Agreement: Sections 3 (Intellectual Property Rights), 4.1 (Fees), 4.3 (Late Charges), 4.4 (Taxes), 5 (Customer Content), 6 (Confidentiality), 7 (Data Privacy), 8 (Third Party Services; Integration Platform), 9 (Warranties; Disclaimer), 10 (Limitation of Liability), 11 (Indemnification), 12 (Dispute Resolution by Binding Arbitration), 13.5 (Effect of Termination), 14 (Miscellaneous), and 15 (Definitions). 

14.6. Subcontractors. CaptivateIQ may use subcontractors to provide Professional Services, provided that: (i) CaptivateIQ has bound the subcontractor to agreements requiring it to conform to law, regulation, industry standards, and the quality, confidentiality, and privacy standards reflected in this Agreement; and (ii) CaptivateIQ remains responsible for delivery or performance of the Professional Services defined in the applicable Order or SOW.

14.7. Export Compliance. The Parties agree to comply with applicable export control and economic sanctions and regulations of the United States and other applicable jurisdictions.

14.8. Assignment. Neither party may assign this Agreement or any Order, SOW, interest, or benefit under this Agreement without the prior written consent of the other party. However, upon written notice to the other party, either party may assign this Agreement: (i) in connection with a merger, sales, sale of substantially all of its stocks or assets, or other change in control; or (ii) to an Affiliate. Any other attempt to assign is void. 

14.9. Notice. Except as otherwise described in this Agreement, any notice given under this Agreement must be in writing and delivered by email to the following address: (i) for CaptivateIQ legal@captivateiq.com; and (ii) for Customer the billing email address listed on the most recent Order between the Parties. All notices by email will be deemed to have been delivered the next business day of the recipient after the notice is sent by email.

14.10. Modifications. CaptivateIQ may update this MSA and will notify Customer of any changes by posting the new MSA at www.captivateiq.com/master-subscription-agreement and updating the "Last Updated" date. CaptivateIQ will notify Customer of material changes by sending an email to the contact's address in the applicable Order and such changes will be effective 30 calendar days following the notification, except to the extent the changes are required by applicable laws, rules, or regulations, in which case they will be effective immediately. Continued use of the Services following such changes will indicate Customer’s acknowledgement of such changes and agreement to be bound by the updated version of this MSA.

15. DEFINITIONS.

15.1. Account means the Services corporate account(s) provided to Customer by CaptivateIQ.

15.2. Admin User means an individual assigned by Customer as administrator of the Account and who has access to certain administrative features and functionalities of the Services to monitor and manage the Account.

15.3. Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common control with a party. 

15.4. Authorized User means either an Admin User or a Payee.

15.5. Claim means, collectively, any third-party claims, demands, and actions.

15.6. Confidential Information means all materials and information provided by the Disclosing Party to the Receiving Party and: (i) identified at the time of disclosure as “Confidential” or bearing a similar legend; or (ii) given the nature of the information or data and the circumstances surrounding the disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary. For the avoidance of doubt, the Services, any Documentation, terms of this Agreement or any Order or SOW, and any and all information regarding CaptivateIQ’s business, products, and services are Confidential Information of CaptivateIQ. Customer Content is Customer’s Confidential Information. 

15.7. Connectors means software code that enables the transfer of data through the Integration Platform by using software scripts or application program interfaces.

15.8. Control means control of greater than 50% of the voting rights or equity interests of a party.

15.9. Customer Content means any content, materials, software, data, formulas (meaning configurations or business logic), or other information that Customer or its Authorized Users provide to CaptivateIQ through the Services. 

15.10. De-Identified Data means information related to Customer and its Authorized Users’ use of the Services (including Customer Content) that is de-identified and aggregated.

15.11. Disclosing Party means the party that discloses Confidential Information to the Receiving Party.

15.12. Documentation means the CaptivateIQ documentation, as may be updated from time to time, in the form generally made available by CaptivateIQ to its customers for use with the Services (as provided via Customer’s Account on the Services).

15.13. DPA means CaptivateIQ’s Data Processing Agreement available at https://www.captivateiq.com/data-processing-addendum, unless Customer has a written data processing agreement executed by CaptivateIQ, in which case such written data processing agreement will govern.

15.14. Effective Date means the date of the later of two signatures on the first Order or SOW entered under this MSA.

15.15. Feedback means ideas, suggestions, feedback, recommendations, or improvements relating to the Services or Professional Services including without limitation, related to usability, performance, interactivity, bug reports and test results) provided by Customer and Authorized Users.

15.16. Force Majeure Event is an event which is unforeseeable and beyond the control of the party affected including without limitation acts of God, acts of government, fire, natural disasters, civil unrest, acts of terror, strikes or other labor problems, denial of service attacks, and inability to obtain energy.

15.17. Initial Term means the Initial Term listed in the Quote section of the Order.

15.18. Integration Platform means the embedded Workato-hosted platform in the Services designed to connect applications and automate workflows.

15.19. Integration Usage Data means usage statistics in connection with Customer’s usage of the Integration Platform.

15.20. Intellectual Property Rights means all patent rights, copyrights, trademark rights, rights in trade secrets, (if any), design rights, database rights, domain name rights, moral rights, and any other similar rights (registered or unregistered).

15.21. Order means an Order Form signed by the Parties that references this MSA and describes the services to be provided by CaptivateIQ and the fees that will be paid by Customer.

15.22. Parties means the Customer named in the Order and CaptivateIQ. 

15.23. Payee means a unique individual who receives a Payout from the Services or who is authorized by Customer to access the Services.

15.24. Payout means a final calculated commission or incentive payment for a Payee.

15.25. Professional Services means consulting, training, or other services CaptivateIQ provides to Customer in accordance with an applicable Order or SOW entered into between the Parties and the accompanying Professional Services Addendum available at http://www.captivateiq.com/professional-services-addendum.

15.26. Receiving Party means the party that receives Confidential Information from the Disclosing Party.

15.27. Recipes means the sets of commands from the Services to the Integration Platform to carry out certain actions across software applications based on designated trigger events.

15.28. Records means a row of data imported into or updated in a data workbook in the Services or exported to external storage outside of the Services.

15.29. Seats means a unique account in the Services for an Authorized User.

15.30. Sensitive Personal Information means information of a sensitive nature, including social security numbers, government identification numbers, credit card data, financial account information, personal medical or health information, trade union membership status, and other similar identifiers as may be spelled out under applicable privacy or data protection laws.

15.31. Services means: (i) the applicable CaptivateIQ incentive compensation management software accessible within a web-based environment via app.captivateiq.com (“CaptivateIQ Incentives”); (ii) the applicable CaptivateIQ territory and quota software accessible within a web-based environment via app.captivateiq.com (“CaptivateIQ Planning”), if procured in the Order; and (iii) any add-on features, if procured in the Order.

15.32. SSLA means CaptivateIQ’s Support and Service Level Agreement, available at https://www.captivateiq.com/service-level-agreement.

15.33. Statement of Work or SOW means a document entered into between the Parties that describes the configuration, training, implementation, or other Professional Services to be provided by CaptivateIQ to the Customer.

15.34. Subscription Term has the meaning given to it in the applicable Order.

15.35. Third Party Services means web-based, mobile, offline, or other software or functionality that is provided by the Customer or a third party that interoperates with the Services.

15.36. Unpaid Subscription means CaptivateIQ’s offering of the Services, or components of the Services (e.g. free accounts, trial use, beta versions, etc.), to Customer at no charge.

15.37. Workato means Workato, Inc.