This page includes Persimmony's current standard policy info for reference. If your organization has a signed contract with Persimmony, that executed agreement governs and prevails over this published version wherever they differ.
1. Definitions
“Agreement” means this MSA, together with all other documents incorporated herein by reference or that are mutually executed by the Parties that expressly reference this MSA.
“Confidential Information” means non-public, proprietary, business, technical, security, legal, or financial information that is marked or identified as Confidential Information or would reasonably be understood to be confidential, such as information about products, processes, services, programs, trade secrets, marketing and business plans, client lists, pricing, financial information, system architecture, security programs, or intellectual property. For clarification, pricing for the Services is Persimmony’s Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) the receiving Party possesses without a duty to keep confidential prior to acquiring it from the disclosing Party; (b) is or becomes publicly available through no violation of the Agreement by the receiving Party; (c) is given to the receiving Party by a third party not under a confidentiality obligation to the disclosing Party; or (d) is developed by the receiving Party independently of, and without reliance on, confidential or proprietary information provided by the disclosing Party.
“Customer Information” means the data, information, images, and other content that is uploaded to, imported into, or created in a Subscription Service by Users, all of which is Customer’s Confidential Information.
“Documentation” means Persimmony’s end user documentation, as available in-product and through the online help feature of the Subscription Service(s), as may be updated from time to time.
“Order” refers to a mutually executed document that expressly references this MSA and specifies the details of the services to be provided by Persimmony to the Customer, including whether the engagement is a paid subscription or a Trial Period. Each Order shall include, but is not limited to, a description of the services, fees (if any), and timelines, and shall be governed by the terms and conditions set forth in this Agreement unless otherwise explicitly stated in the Order. Each executed Order is incorporated into and forms an integral part of this Agreement.
“Persimmony IP” means: (a) the Subscription Service(s), work product, and Documentation (but not any Customer Information or Customer Confidential Information contained therein); (b) all Persimmony copyrights, patents, trademarks, trade names, trade secrets, specifications, technology, software, data, methodologies, machine learning models, changes, improvements, components and documentation used to provide the Services or made available in connection therewith; and (c) all intellectual property, proprietary rights and underlying source code, object code, and know-how in and to the foregoing.
“Service(s)” means, collectively or individually, the Subscription Services, and any other services described in an Order.
“Subscription Service(s)” means any of the online, hosted software tools provided by Persimmony to Customer, pursuant to an Order.
"Term": The period during which this Agreement remains in effect, consisting of: (i) any Trial Period, as specified in the applicable Order; (ii) the Initial Term, as specified in the applicable Order, commencing on the Effective Date (or upon conversion from a Trial Period) and continuing for the duration stated therein; and (iii) any Renewal Term(s), which shall automatically renew for the period(s) specified in this Agreement, unless terminated by either Party in accordance with the termination provisions of this Agreement. The Term may include successive Renewal Term(s) if neither Party provides written notice of non-renewal within the timeframe specified in this Agreement.
“Trial Period” means a no-cost evaluation period, as specified in an Order, during which Customer may access the Subscription Services for evaluation purposes, subject to the terms of this Agreement except as expressly modified by the applicable Order.
“Third-Party Application” means a software application, service, integration, or functionality that is developed or provided by a third party, is not owned or under Persimmony’s control, and interoperates with a Subscription Service. Third-Party Applications are not part of the Services.
“User(s)” means any individual with an assigned license accessing a Subscription Service through Customer’s account, as authorized by Customer or its Users. Customer is responsible for ensuring each User complies with the terms of Section 3.2.
2. Provision of Services
Subscription Services. Customer and each licensed User may access and use the applicable Subscription Service during the Term solely for Customer’s internal business operations, subject to the terms of the applicable Order (including payment of any applicable fees) and the requirements of the terms of the Agreement. Customer may purchase additional Subscription Services or add additional licenses during the term at its then-current price; related fees will be prorated for the remainder of the applicable Term. The Subscription Services include the features and functionality applicable to the version selected. Available subscription plans and details of those plans may change over time but will not be materially degraded during a Term.
Third-Party Applications. If Customer chooses to utilize interoperability with a Third-Party Application, Customer’s purchase and use of such product is subject to the end user license or other agreement between Customer and the third-party provider. Persimmony has no liability with respect to procurement, maintenance, use, or interoperability of any Third-Party Application, and does not guarantee such interoperability.
Persimmony will provide support for the Subscription Services in accordance with Persimmony’s then-current Customer Support Policy (the “Support Policy”), as published by Persimmony. Persimmony reserves the right to update the Support Policy from time to time; provided that any such updates will not materially reduce the level of support during the then-current Term.
Implementation and Documentation. Implementation activities, training, and onboarding responsibilities will be described in Persimmony’s Implementation Guide provided to Customer. Persimmony will provide Customer with access to product Documentation through its online help center. Customer is responsible for ensuring its Users review and follow such Documentation.
3. Using the Services
Access Rights and Restrictions. Persimmony hereby grants to Customer and its Users the right to access and use the Subscription Services during the term of the Agreement, including in operation with Third-Party Applications, for Customer's internal business purposes. Upon termination or expiration of the Agreement, or of any individual Order, the right to access and use the relevant Subscription Service(s) will immediately terminate. Customer and its Users will not: (a) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make the Services or the Persimmony IP available to any third party, except as expressly permitted by the Agreement; (b) use or authorize the use of the Services in any manner or for any purpose that is unlawful under applicable law; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Subscription Services; (d) use or access the Subscription Services or Documentation (1) to develop a product or service that competes with Persimmony or (2) other than in compliance with the Agreement and all applicable laws and regulations (including export control laws and restrictions); (e) remove or modify any proprietary markings or restrictive legends in the Subscription Services or on the Documentation; (f) infringe or misappropriate any Persimmony IP; (g) attempt to gain unauthorized access to the Services or any portion thereof; (h) knowingly, intentionally or negligently introduce viruses, malware, Trojan horses, worms, spyware or other destructive code into, or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Services; (i) access or attempt to access the Services by any means other than Persimmony’s supported interfaces, including any automated means (e.g. via scripts or web crawlers); (j) probe, scan, or test the vulnerability of any Persimmony system or network without Persimmony’s prior written consent; or (k) access, store, create, share, display, publish or transmit any material through the Services that a person would reasonably believe to be unlawful or related to illegal activity, or that is otherwise threatening, deceptive, defamatory, discriminatory, obscene, libelous, an invasion of privacy, or that infringes the intellectual property rights of another.
Customer Responsibilities.
Customer is responsible for: (a) access to and use of the Subscription Service(s) by the Users, including deactivating Users no longer requiring access to the Subscription Service, and each User’s compliance with the Agreement; (b) the secure transmission of Customer Information to the Subscription Service(s); (c) the legality, reliability, integrity, accuracy and quality of the Customer Information, and the means by which the Users acquired the Customer Information; (d) if desired, backing-up Customer Information outside of the Subscription Service(s); (e) using commercially available technologies to prevent the introduction of viruses, malware, Trojan horses, worms, spyware or other destructive code into the Subscription Service(s); (f) instructing Users on the use restrictions herein and ensuring that those use restrictions are not breached; (g) ensuring all Users maintain current versions of supported web browsers and operating systems as specified in Documentation; (h) implementing all security-related updates, patches, and configuration changes recommended by Persimmony within thirty (30) days of notification; (i) providing adequate training to its Users on proper use of the Services; (j) promptly notifying Persimmony of any unauthorized access or security concerns through the designated support channels; (k) maintaining accurate and up-to-date User lists and promptly deactivating access for terminated employees or contractors; and (l) ensuring all Customer Information uploaded to or stored in the Services complies with applicable laws and regulations; and (m) ensuring Users comply with Persimmony’s Acceptable Use Policy, as published by Persimmony from time to time, which is incorporated into the Agreement by reference.
Authorized Use Per Named User. Licenses are for named Users and cannot be shared or used by more than one individual at a time. However, licenses may be reassigned to new Users replacing individuals who no longer require access to the Subscription Service for any purpose (e.g. transferring a subscription from a terminated employee to a new employee). Each User must keep a secure password for accessing the Subscription Service and keep such password confidential. Customer will (a) if applicable, obtain from its Users any consents necessary for Persimmony to provide the Services; (b) maintain commercially reasonable security standards with respect to use of the Persimmony IP; and (c) in the event of any unauthorized access to or use of the Services, promptly notify Persimmony through the in-product support system. All access to and use of the Subscription Services by Customer and its Users is subject to the terms of the Agreement, for the purposes of processing Customer’s internal data related to program and contract planning, development, management, monitoring and evaluation. Users may not use the Services for any purpose other than those expressly authorized hereunder, and subject to the restrictions in Section 3.1 above. Persimmony will, under the terms and conditions of the Agreement, provide the Services described in the Agreement solely to Customer and its Users. Customer bears the sole responsibility of ensuring that only authorized Users access the Subscription Services. Customer is responsible for setting up new Users (assigning passwords and creating shortcuts, etc.) and the ongoing addition/deletion of new/existing Users.
Subscription Services Accessibility. Access to the Subscription Services is granted only to Users with assigned licenses, and pursuant to the terms of the Agreement. Customer warrants that all Customer computers used to access the Services will be free of viruses, worms or other malicious software. Persimmony is not liable for data loss related to malicious software contained within the data of, or in any correspondence from, Customer. The Subscription Services require that Users’ computers meet the system requirements specified in the Documentation. Persimmony is not responsible for Users’ computer hardware or software failures which restrict the Users' ability to access the Subscription Services. Service availability targets, maintenance practices, and backup and disaster recovery commitments are described in Persimmony’s Service Level Agreement (the “SLA”), as published by Persimmony. The Subscription Services may be temporarily unavailable due to planned maintenance, unexpected hardware failure, malicious attacks (such as denial of service attacks), or other events beyond Persimmony’s reasonable control, as further described in the SLA.
Change Management. Persimmony reserves the right to make changes to the Services at any time, provided such changes do not materially reduce the overall functionality of the Services. Persimmony will provide notice of material changes through the support portal or via email to Customer's designated contact. Customer's continued use of the Services following any change constitutes acceptance of such change. Persimmony maintains sole discretion in determining its product roadmap, feature deprecation schedule, and timing of updates or modifications.
4. Payment Terms; Term and Termination
Subscription Fees and Term. If the applicable Order specifies a Trial Period, no fees shall be due during such Trial Period. Upon expiration of the Trial Period, Customer may elect to convert to a paid subscription by executing a new Order. If Customer does not convert, access to the Subscription Services will terminate at the end of the Trial Period with no further financial obligation to either Party. For paid subscriptions, Persimmony will issue invoices on an annual basis, billing in advance for each year of the contract term. For example, in a three-year initial term, there will be three separate annual invoices, with each invoice covering the upcoming year's services. The first invoice will be issued upon execution of the Order and subsequent invoices will be issued annually thereafter. The Subscription fee includes a fixed number of licenses as specified in the Order. The number of licenses (seats) specified in the Order constitutes the number of licenses for the duration of the Agreement's term and may not be reduced at any time during the term. Additional licenses may be added at the per-license rate specified in the Order, prorated on a whole-month basis (billed for the full month in which activation occurred), for the remaining months in the current annual billing period.
Customer may remit payments for all amounts due under this Agreement using credit card, debit card, ACH transfer, or electronic payment transfer. Persimmony may agree to other forms of payment, which may be subject to additional terms. Payments for invoices are due thirty (30) days after the invoice date, unless otherwise specified in an Order, and are considered delinquent thereafter. Except as expressly set forth in the Agreement or when required by applicable law, (a) all fees are non-cancellable and once paid are non-refundable; and (b) licenses purchased cannot be decreased during the initial term of the Agreement.
Subscription Renewal. After each Initial Term, the Subscription Service will automatically renew at Customer’s then current number of licenses for one year (12 months), unless either Party cancels the auto-renewal or otherwise terminates the Agreement at least 120 days before the end of the Initial Term. Each annual renewal term can contain a per license fee increase of up to 4% per annum. Customer authorizes Persimmony to invoice, or charge the designated payment method, at the start of each new annual billing period for the quantity and price (allowing for reasonable price increases in any subsequent renewal periods) then in effect for Customer’s account as defined in the Order. This Section 4.2 shall not apply during any Trial Period.
Termination. Either Party may terminate the Services: (a) if the other Party commits a material breach of the Agreement (or has acted in a manner which clearly shows that the Party does not intend to, or is unable to comply with, the provisions of the Agreement) and such breach either (i) is not capable of being cured, or (ii) has not been cured within 10 days of receiving written notice of the breach; (b) immediately upon the other Party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any insolvency, bankruptcy, liquidation, dissolution, or similar proceeding; or (c) it is required to do so by law.
Suspension. Persimmony reserves the right to suspend access to the Service(s) if (a) Customer has undisputed amounts past due; (b) Persimmony reasonably determines that Customer or any Users are in breach of the Agreement; or (c) Persimmony reasonably determines that Customer or any Users are using a Service in a way that creates a security vulnerability, may disrupt others’ use of a Service, or have misappropriated or infringed Persimmony’s IP or a third party’s intellectual property or proprietary rights. Persimmony will only suspend access to the extent, and for the duration, necessary to address the violation and will promptly restore access once the issue has been resolved. Persimmony will not suspend access if Customer is (reasonably and in good faith) disputing a charge and cooperating in resolving the dispute. Customer acknowledges and agrees that if Persimmony suspends access to the Service(s), Users may be prevented from accessing the Services, account details, or any Customer Information contained in Customer’s account. If the reason for suspension cannot be resolved, Persimmony may terminate the Agreement in accordance with Section 4.3.
Effect of Termination. Upon termination of the Services, (a) Persimmony will disable Customer’s account and each User’s access to the Services; (b) the Customer is responsible for any unpaid fees up to the termination date, in addition to one hundred percent (100%) of any remaining costs associated with the remainder of the current term; provided, however, that if the Agreement is terminated during a Trial Period, Customer shall have no financial obligation to Persimmony for the remainder of such Trial Period; (c) each Party will return and make no further use of, or destroy (subject to each Party’s automated deletion schedule and back-up policy), any Confidential Information belonging to the other Party. Users may export or download Customer Information at any time from the Subscription Service.
5. Intellectual Property Rights; Confidentiality
Customer Information. Persimmony acknowledges that, in the course of meeting its obligations under the Agreement, it will process and maintain Customer Information in order to provide the Services. Such Customer Information may include personal information, individually identifiable health information (including Protected Health Information as defined at 45 C.F.R. § 160.103), and other data provided by Users to Persimmony for Persimmony’s performance under the Agreement or stored by Persimmony through the Service(s) provided hereunder. Subject to the terms of the Agreement, Customer hereby grants Persimmony a limited, royalty-free, fully-paid up, non-exclusive right to process Customer Information as instructed by Customer and solely as necessary to provide the Services and meet its obligations under the Agreement, for Customer’s benefit, as provided in the Agreement and for so long as Customer uploads or stores such Customer Information for processing by or on behalf of Persimmony. Persimmony will not use such individually identifiable Customer Information other than in the course of its duties under the Agreement, nor will Persimmony disclose any such Customer Information without the written consent of Customer, unless it is required by law to do so. Where Customer Information may include Protected Health Information, the Parties will execute Persimmony’s Business Associate Agreement (the “BAA”), which is incorporated into and forms part of the Agreement; with respect to Protected Health Information, the BAA controls over any conflicting term of the Agreement.
Confidentiality. Each Party may be given access to Confidential Information of the other Party in connection with the Agreement. The receiving Party may only use this Confidential Information as provided for in the Agreement or to exercise its rights hereunder and may only share such Confidential Information with its employees, agents, advisors, procurement agents and service providers who need to know it, provided they are subject to similar confidentiality obligations. The receiving Party will use the same degree of care, but no less than a reasonable degree of care, as such Party uses with respect to its own Confidential Information to protect the disclosing Party’s Confidential Information and to prevent any unauthorized use or disclosure thereof. Neither Party is responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party not under the receiving Party’s control. If the receiving Party is compelled by law to disclose the other Party’s Confidential Information, it will provide the disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. These confidentiality obligations will remain in effect for the entire term of the Agreement and for an additional one (1) year following termination; provided, however, that obligations with respect to (a) trade secrets survive for as long as the information remains a trade secret under applicable law, and (b) Protected Health Information survive for as long as such information is retained, as provided in the Business Associate Agreement.
Persimmony’s Proprietary Rights. Customer acknowledges that, in the course of Persimmony providing the Services under the Agreement, Customer will come into contact with or obtain access to Persimmony IP. Customer acknowledges that Persimmony IP (including the structure, organization and code of the Subscription Services) are the valued trade secrets and Confidential Information of Persimmony. Customer agrees that any and all Persimmony IP is exclusively owned by Persimmony. The Services and Persimmony IP are not a work made for hire. The Agreement does not grant Customer any intellectual property rights or title of ownership in Persimmony IP (including the Subscription Services), and all rights not expressly granted to Customer are reserved to Persimmony. Persimmony may place copyright and/or proprietary notices, including hypertext links, within the Services and Documentation. Customer may not alter or remove these notices without Persimmony’s written permission. Customer will at all times keep in confidence and trust all such Persimmony IP which is confidential in nature and will not use such Persimmony IP other than as permitted under the terms of the Agreement, nor will Customer disclose any such Persimmony IP without the written consent of Persimmony, unless it is required by law to do so.
6. Equal Employment Opportunity
Non-Discrimination. Persimmony will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, physical or mental disability, medical condition (cancer related), marital status, sexual orientation, age (over 18), veteran status, gender, pregnancy, or any other non-merit factor unrelated to job duties. Such action will include, but not be limited to, the following: recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training (including apprenticeship), employment, upgrading, demotion, or transfer. Persimmony agrees to post in conspicuous places, available to employees and applicants for employment, notice setting forth the provisions of this Non-Discrimination clause.
Special Provisions. If the Agreement provides compensation in excess of $50,000 to Persimmony and if Persimmony employs fifteen (15) or more employees, the following requirements will apply:
Persimmony will, in all solicitations or advertisements for employees placed by or on behalf of Persimmony, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, ancestry, physical or mental disability, medical condition ( cancer related), marital status, sexual orientation, age ( over 18), veteran status, gender, pregnancy, or any other non-merit factor unrelated to job duties. Such action will include, but not be limited to, the following: recruitment; advertising, layoff or termination, rates of pay or other forms of compensation, selection for training (including apprenticeship), employment, upgrading, demotion, or transfer. In addition, Persimmony will make a good faith effort to consider minority/women/disabled-owned business enterprises in Persimmony's solicitation of goods and services.
In the event of Persimmony's non-compliance with this Section 6, or with any applicable rules, regulations, or orders pertaining to employment non-discrimination, Persimmony may be declared ineligible for further contracts with Customer.
7. Warranties
Persimmony warrants that: (a) its Services will substantially conform to the terms and descriptions of such Services in the Documentation; and (b) it will comply with all laws and regulations (including export control laws and restrictions) applicable to its provision of the Services to its users generally (i.e. without regard for Customer’s particular use of the Services or laws and regulations specific to Customer and its industry). In the event that a material defect in the Services is identified by Customer and confirmed by Persimmony, then Persimmony, at its sole option and expense, (i) may make reasonable efforts to correct such defects in the Service(s); or (ii) may replace the Service(s); or (iii) if Persimmony deems neither of the foregoing are commercially practicable, terminate the rights granted herein with respect to the applicable Service(s), accept return or termination of the defective Service(s), and grant Customer a pro-rated credit of the unused portion of the fees paid with respect to the applicable Service(s). Persimmony's obligation of liability hereunder will be to replace or make reasonable efforts to take corrective action with regards to the Subscription Services. Notwithstanding the foregoing, Persimmony will have no obligation to correct any modifications or customizations of the Service(s) that Customer has requested in accordance with the provisions of the Agreement. The remedies stated in this Section 7.1 will be Persimmony’s entire obligation and Customer’s sole and exclusive remedy for breach of warranty hereunder and will be in lieu of any other remedy available to Customer at law or in equity. For the avoidance of doubt, if no fees have been paid (such as during a Trial Period), Persimmony’s sole obligation under this Section 7.1 shall be to use reasonable efforts to correct the defect or, at Persimmony’s option, terminate Customer’s access to the affected Service(s). This warranty will not apply if the Services have been (a) altered, modified, or enhanced; (b) subjected to misuse, negligence, computer or electrical malfunction; or (c) used, adjusted, installed or operated other than in accordance with the Documentation, or as authorized in writing by Persimmony. Furthermore, no warranties will apply in the event of an uncured breach of the Agreement by Customer, for which notice of breach has been given hereunder.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED. PERSIMMONY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE. SPECIFICALLY, AND NOT IN LIMITATION OF THE FOREGOING, PERSIMMONY DOES NOT WARRANT THAT ANY SERVICE WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, THAT THE OPERATION OF ANY SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS IN THE SERVICE(S) WILL BE CORRECTED. TO THE EXTENT THAT ANY IMPLIED WARRANTIES ARE DEEMED TO EXIST UNDER APPLICABLE LAW, THEY ARE HEREBY EXPRESSLY LIMITED IN DURATION TO THE DURATION OF ANY EXPRESS WRITTEN WARRANTY MADE HEREIN.
8. Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR DAMAGES RELATED TO THE AGREEMENT, IF ANY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO AN AMOUNT EQUAL TO FIFTY PERCENT (50%) OF THE TOTAL OF FEES PAID OR PAYABLE BY CUSTOMER TO PERSIMMONY UNDER THE AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH DAMAGES. NEITHER PARTY SHALL HAVE ANY OBLIGATION OR LIABILITY WHATSOEVER FOR ANY BREACH OF SECURITY OR PRIVACY RELATING TO THE SERVICES, PROGRAM, OR DATA THAT (A) IS NOT WITHIN THE SOLE CONTROL AND RESPONSIBILITY OF THAT PARTY, OR (B) ARISES FROM ANY RECONFIGURATION, MODIFICATION, MISUSE OR ABUSE OF THE PROGRAM OR SERVICE BY CUSTOMER OR ITS USERS. THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 SHALL NOT APPLY TO CLAIMS THAT CANNOT BE LIMITED BY APPLICABLE LAW. Furthermore, Persimmony shall have no liability for: (a) damages resulting from Customer's failure to implement security updates, maintain current software versions, or follow recommended security practices; (b) issues arising from use of unsupported browsers or operating systems; (c) damages resulting from unauthorized access where Customer has failed to maintain secure passwords or follow security guidelines; (d) service unavailability caused by third-party service providers, including cloud hosting providers, unless such unavailability exceeds 24 consecutive hours; and (e) any damages that could have been prevented by Customer's timely implementation of solutions or workarounds provided by Persimmony.
9. Indemnity
Mutual Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party and its officers, directors, agents, and employees from any and all claims, actions, demands, suits or proceedings (each, a “Claim”) resulting from the gross negligence or willful misconduct of the indemnifying Party in the performance of the Agreement, including any finally awarded damages or settlement amount and reasonable expenses (including attorneys’ fees) to the extent arising from such Claim. Each Party acknowledges that the other Party does not assume responsibility for payment of Claims, to the extent a court of competent jurisdiction determines that the indemnifying Party was not responsible for all or a part of the Claim, which was the result of the negligent act or omission of the indemnified Party or its officers, directors, agents, or employees. If a judgment is entered against both Parties by a court of competent jurisdiction because of the concurrent active negligence of both, or of their officers, directors, agents, or employees, both Parties agree that liability will be apportioned as determined by the court.
Intellectual Property Indemnification.
Persimmony will defend at its own expense any Claim against Customer brought by a third party to the extent that the Claim is based upon an assertion that a Subscription Service directly infringes any U.S. copyright or misappropriates any trade secret as recognized as such under the Uniform Trade Secret Law, and Persimmony will pay those costs and damages finally awarded against Customer in any such Claim that are specifically attributable to such Claim, or those costs and damages agreed to in a monetary settlement of such Claim. Persimmony's obligations are expressly conditioned upon Customer’s adherence to the process outlined in Section 9.3 below (including, without limitation, making available to Persimmony all documents and information in Customer’s possession or control that are relevant to the infringement or misappropriation claims, and by making Customer’s personnel available to testify or consult with Persimmony or its attorneys in connection with such defense).
If Customer’s use of any Subscription Service is enjoined, or if in Persimmony’s sole judgment is likely to be enjoined, Persimmony may, at its sole option and expense, and as a complete remedy to Customer, either (a) substitute non-infringing software for the infringing item, (b) modify the Subscription Service so that it no longer infringes, (c) obtain for Customer the right to continue using such Subscription Service, or (d) if Persimmony deems none of the foregoing are commercially practicable, terminate the rights granted herein with respect to the applicable Subscription Service, accept return or termination of the Subscription Service, and grant Customer a pro-rated credit of the unused portion of the fees paid with respect the applicable Subscription Service.
Notwithstanding the foregoing provisions of this Section 9, Persimmony will not have any liability to Customer under this Section 9 to the extent that any infringement or claim thereof is based upon: (i) use of the Subscription Service in combination with equipment or software not supplied hereunder where the Subscription Service would not itself be infringing; (ii) compliance with designs, plans or specifications provided by Customer; (iii) use of the Subscription Service in an application or environment for which it was not designed, not provided for in the Documentation, or not contemplated under the Agreement; (iv) use of the Subscription Service in breach of the Agreement; or (v) any modification of the Subscription Service made by any person other than Persimmony.
Process. The Party seeking indemnification will provide the other Party prompt written notice of any Claim and reasonable cooperation to the indemnifying Party in the defense, investigation or settlement of any Claim at the indemnifying Party’s expense. The indemnifying Party will have sole control of such defense, provided that the indemnified Party may participate in its own defense at its sole expense. The indemnifying Party may not settle a Claim without the indemnified Party’s consent if such settlement imposes a payment or other obligation on the indemnified Party. This section 9 sets forth the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy for, any type of Claim described in this section 9.
10. Miscellaneous
Independence. Persimmony will perform all Services pursuant to the Agreement as an independent contractor and not as an officer, agent, servant, or employee of Customer. Persimmony will be solely responsible for the acts and omissions of its officers, directors, agents, employees, and sub-processors, if any. Nothing herein will be considered as creating a partnership or joint venture between Customer and Persimmony. No person performing any Services and/or supplying goods will be considered an officer, agent, servant, or employee of Customer, nor will any such person be entitled to any benefits available or granted to employees of Customer.
Assignment. Neither the Agreement, nor the rights or obligations hereunder may be assigned or transferred by either Party without the other Party’s prior written consent, which will not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign the Agreement without the consent of the other Party to an affiliate or a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning Party (provided that, in the case of a Customer assignment, all fees owed and due by Customer have been paid).
Publicity. Unless otherwise set forth in an Order, Persimmony may use Customer’s name, corresponding trademark or logo, and non-competitive use details in both text and pictures to identify Customer as a customer and highlight such use details, subject to any usage guidelines Customer provides to Persimmony, in publicly available oral and written statements, including on Persimmony’s website, in marketing materials, and in press releases. To request removal of this identification, please notify Persimmony in writing through the in-product support system. In addition, Persimmony may disclose the relationship between the Parties if legally required or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
Insurance. Persimmony, at its sole cost and expense, for the full term of the Agreement (and any extensions thereof), will obtain and maintain, at minimum, insurance coverage necessary to protect against insurable risks related to the Subscription Services and other Services, including commercial general liability insurance, cyber liability insurance, errors and omissions insurance, automobile liability insurance, and worker’s compensation insurance as required by applicable law. Upon request no more than once a year, Persimmony will provide Customer with a Certificate of Insurance evidencing the above policies.
Attachments. In the event of any conflict in terms among or between this MSA and its Exhibits, attachments, Orders, or other documents referred to herein, the terms of this MSA control, except as expressly modified by such other document.
Governing Law. The Agreement will be governed by and construed in accordance with the laws of the State of Texas without regard to its conflict or choice of laws rules.
U.S. Government Users. The following terms apply to federal government (“Government”) Users: The Services include computer software, which is a “commercial product” as defined by 48 C.F.R. § 2.101, and also include “commercial services” as defined by 48 C.F.R. § 2.101. The Services also consist of “commercial computer software” and “commercial computer software documentation,” as those terms are used in 48 C.F.R. § 2.101 and 48 C.F.R. § 12.212. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202-1 through § 227.7202-4, Customer acquires the Services with only those rights, and subject to the obligations, set forth herein to the extent not inconsistent with federal procurement law in accordance with 48 C.F.R. § 552.212-4(w). In the event of a dispute with the Government in connection with the Agreement, the rights and duties of the Parties will be governed in accordance with federal procurement law, and such disputes will be resolved pursuant to the Contract Disputes Act of 1978, as amended (41 U.S.C. §§ 7101-7109), as implemented by 48 C.F.R. § 52.233-1.
Notices. All notices required or permitted under the Agreement must be in writing, must reference the Agreement and will be deemed given: (i) when sent by email with a read receipt confirmation generated; (ii) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one (1) working day after deposit with a commercial overnight carrier, with written verification of receipt. To be effective, a confirmation copy of any notice sent via email must be sent contemporaneously via U.S. mail. All communications must be sent to the contact information set forth below or to such other contact information as may be designated by a Party by giving written notice to the other Party pursuant to this Section 10.8:
Informal Dispute Resolution. If a dispute, controversy or claim arises between the Parties relating to the Agreement, the disputing Party must promptly notify the other Party in writing. Each Party will promptly designate a representative to resolve the dispute. The representatives will meet within ten (10) days following the first receipt by a Party of such written notice and will attempt to resolve the dispute within fifteen (15) days.
Formal Dispute Resolution. In the event of any dispute between the Parties which arises under the Agreement and cannot be resolved under Section 10.9 ("Informal Dispute Resolution") above, such dispute will be submitted to a mediator agreed upon by the Parties. The mediation will be conducted in the County of Collin, Texas, unless the Parties consent to a different location. To the extent the preceding mediation provisions are excluded by written agreement, held void or unenforceable, or otherwise excluded, the Parties consent to exclusive jurisdiction and venue in the state or federal courts seated in the County of Collin, Texas. Each Party will bear its own costs associated with this Section 10.10.
Injunctive Relief. Each Party acknowledges that any breach, threatened or actual, of the confidentiality and intellectual property obligations hereunder may cause irreparable injury to the other Party for which there may not be an adequate remedy at law. Therefore, upon any such breach or threat thereof, the Party alleging breach will be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
Force Majeure. Except for monetary obligations, neither Party will be in default of the Agreement by reason of any failure or delay in the performance of its obligations hereunder, where such failure or delay is due in whole or in part to any cause beyond the reasonable control of such Party or its subcontractors, agents, or suppliers (a “Force Majeure Event”). Force Majeure Events include, but are not limited to, strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, non-availability of electrical power or telecommunications, loss of internet or telephone connectivity, or loss and destruction of property. The Party claiming a Force Majeure Event must give the other Party notice within fifteen (15) calendar days after the start of the event causing the failure to perform.
Survival. Any provision of this MSA that by its nature is reasonably intended to survive beyond termination of this MSA will survive.
Waiver. No delay or omission to exercise any right, power, or remedy accruing to either Party under the Agreement will impair any right, power, or remedy of such Party, nor will it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure or a condition or any right or remedy under the Agreement will (a) be effective unless it is in writing and signed by the Party making the waiver; (b) be deemed to be a waiver of, or consent to, any other breach, failure or condition or right or remedy; or (3) be deemed to constitute a waiver unless the writing expressly so states.
Severability. If a court or arbitrator of competent jurisdiction, or a mediator chosen by the Parties, holds any provision of the Agreement to be illegal, unenforceable, or invalid for any reason, the validity and enforceability of the remaining provisions of the Agreement will not be affected.
Entire Agreement. The Agreement, including this MSA and all exhibits, attachments, Orders, or other documents referred to herein, embodies the entire agreement and understanding between Persimmony and Customer with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the same. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement may affect, or be used to interpret, change or restrict, the express terms and provisions of the Agreement. The terms and conditions of any purchase order or other instrument issued by Customer which are in addition to or inconsistent with the Agreement will be of no effect and will not be binding on Persimmony. In the event of a conflict between the two documents, the Agreement takes precedence.
Authority. Each Party represents that it has the legal power to enter into the Agreement, and each individual signing below hereby represents and warrants that it has the authority to bind its respective organization. Customer may designate Users to access the Services through Customer’s account in accordance with Section 3 understands and agrees that Customer is bound by and responsible for ensuring that each of its Users complies with the terms of the Agreement.
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