Last Updated on: March 18th, 2025.
This Master Service Agreement (hereinafter referred to as "Agreement") is entered into by and between "Simetrik" and “Customer”, both legal entities whose details are provided in the executed Order Form, governed by the terms and conditions outlined herein, and to which they are bound by upon execution of the Order Form.
Customer acknowledges that by executing the Order Form that references this Agreement, Customer agrees to its terms.
The capitalized terms in this Agreement not otherwise defined throughout the Agreement shall have the following meanings:
3.1. Simetrik shall, according to the terms and conditions of this Agreement, provide Customer, solely for its internal business operations,
3.2. Simetrik may perform Professional Services as described in an Order Form and/or Statement of Work, which may contain additional terms or milestones for such Professional Services.
3.3. Beta Services. Simetrik may choose to make available new services and/or functionalities that are still in their testing phase (“Beta Services”). The Customer use of the Beta Services is entirely at its discretion and risk. The Beta Services may be (i) discontinued at any time; and (ii) subject to additional terms and conditions that will be made available to the Customer before its access to such services.
3.4. Customer Database Access. Customer expressly authorizes Simetrik’s personnel to access its databases, data warehouses, or any other storage tools necessary to provide Services support. Simetrik acknowledges that all information uploaded and used by the Customer in the Software remains the Customer ’s exclusive property.
3.5. Usability Analysis. Simetrik will monitor and analyze User behavior in the Software to improve its functionality using tools such as heatmaps, session recordings, and funnel tracking. No personally identifiable information is collected for this purpose.
3.6. Data Integrity. Customer is the owner of the data uploaded to the Software and it is the sole responsible for its accuracy. Simetrik will not alter the data uploaded by the Customer.
4.1. Customer shall pay Simetrik the fees set out in the Order Form and applicable Statement of Work.
4.2. Unless otherwise stated in the Order Form, the fees set out in the Order Form annually automatically increase by a proportion equal to 8% of the annual values set out in the Order Form.
4.3. Unless otherwise stated in the Order Form, all fees due under this Agreement shall be paid within 30 calendar days counted from its invoice date.
4.4. In the event Customer fails to pay within the stipulated time and remains in default after receiving a notice of non-payment from Simetrik, then:
4.5. Customer shall make all payments under the Agreement in full, without any deduction, set-off, withholding or counterclaim. If the Customer is required by law to make a deduction or withholding, it shall do so increasing the payment amount so that Simetrik receives the exact fees set out in the Order Form (the same as the amount Simetrik would have received without the deduction or withholding required by law).
4.6. Each of the Parties is solely responsible for taxes based on its net income, property and employees.
5.1. Simetrik shall provide the Services, pursuant to this Agreement and the applicable Order Form and Statement of Work.
5.2. Simetrik shall maintain the following certifications active and up-to-date throughout the duration of this Agreement:
5.3. Simetrik shall comply with all laws applicable to its performance under this Agreement.
6.1. Simetrik will use commercially reasonable efforts to make the Cloud Services available for Customer’s use ninety-nine point nine percent (99.9%) of the time in each month.
6.2. In the event that the availability of the Software (“Uptime”) is less than ninety-nine point nine percent (99.9%), the Customer shall be eligible for a credit ("Service Credits"), calculated by applying a percentage to the amount billed to the Customer in the month in which the Uptime was under 99.9%, as per the table below:
6.3. Simetrik offers support for the Cloud Services in accordance with the following terms (“Support Policy”):
7.1. The Customer shall:
7.2. Third-Party Platforms/Applications/Software. If Customer uses third-party platforms, applications, or software to integrate or exchange Customer data, Customer's use is governed by its agreement with the third-party provider, not this Agreement. Simetrik is not responsible for this third-party provider services or how their providers use Customer data.
8.1. Confidentiality. During the term of this Agreement, each Party may disclose (the "Disclosing Party") to the other (the "Receiving Party") commercial, technical, or financial information (hereinafter referred to as the "Confidential Information"). All Confidential Information, regardless of its nature and whether it was delivered, communicated, or disclosed by the Disclosing Party, or learned as a consequence of the Parties fulfilling their obligations under this Agreement, is the property of the Disclosing Party. The Receiving Party may not use the Confidential Information for its own benefit or the benefit of third parties, regardless of whether it causes damage to the Disclosing Party.
8.2. The Receiving Party agrees not to disclose, distribute, or reproduce Confidential Information, except as needed for the execution of the Agreement.
8.3. Return or Destruction of Information. Upon termination of this Agreement, regardless of the cause, the Receiving Party must return or destroy all Confidential Information, as per the Disclosing Party decision. The Receiving Party must certify, through its legal representative, that all Confidential Information has been returned or destroyed in accordance with the Disclosing Party’s instructions.
8.4. All obligations under this clause shall remain in effect for five (5) years after the termination of this Agreement.
9.1. Ownership and Rights. Simetrik shall remain the exclusive owner of all Intellectual Property related to the Software. The Customer shall not acquire any right, title, or interest in Simetrik's Intellectual Property. Simetrik retains sole ownership of the Software and all its future improvements, enhancements or modifications. This Agreement does not in any way constitute a transfer of ownership of the Software to the Customer.
9.2. Limited License. Simetrik grants the Customer a non-exclusive, non-transferable, revocable license to use the Software solely for the purposes outlined in this Agreement and for its duration. The Customer is permitted to use the Software only for the specific purposes authorized in this Agreement.
9.3. Restrictions on Use and Access. The Customer shall not:
9.4. The Customer shall also not:
9.5. Duration and Termination. This clause shall remain in effect for the term of this Agreement and shall continue to apply after the Agreement's termination. Upon termination, the Customer shall immediately cease all use of the Software.
10.1. Data Controller Role. The Customer acknowledges and agrees that, for the purposes of this Agreement, it will act as the Data Controller with respect to all personal data that it enters into the Software. The Customer is the only responsible for determining which personal data, if any, will be input into the Software, how such data should be processed, and the purposes for which the data is used.
10.2. Data Processor Role. Simetrik will act as the Data Processor, processing personal data on behalf of the Customer in accordance with the Customer's instructions as specified in this Agreement. The processing of personal data refers to the following operations carried out by Simetrik through automated means: collection, recording, organization, structuring, storage, retrieval, transmission, deletion, or destruction.
10.3. Customer's Responsibility for Data Input and Control. The Customer is solely responsible for the type and category of personal data entered into the Software. Simetrik has no control over the content of the data provided by the Customer, and the Customer declares that it has the necessary legal basis to input such data into the Software.
10.4. Data Ownership and Relationship with Data Subjects. The Customer retains ownership of all personal data processed through the Software and holds the relationship with the data subjects whose data is input into the system. The Customer is responsible for ensuring compliance with applicable data protection laws, including obtaining any necessary consents and authorizations from data subjects before inputting personal data into the Software.
10.5. Simetrik's Processing of Data. As the Data Processor, Simetrik will process personal data only in accordance with the Customer's instructions and for the sole purpose of providing the services under this Agreement. Simetrik shall have in place appropriate technical and organizational measures to protect personal data, and shall not use the data for any other purpose, including selling, transferring, or disclosing personal data to third parties, except as necessary to fulfill its obligations under this Agreement.
10.6. Data Security and Compliance. Simetrik agrees to comply with all applicable data protection laws, regulations, and industry standards while processing personal data on behalf of the Customer. Both Parties agree to cooperate fully to ensure the security, confidentiality, and integrity of personal data and to promptly notify the other Party in case of any data breach or security incident affecting personal data.
10.6.1. Due to the cloud-based nature of the services, Simetrik will share personal data with subcontractors for cloud storage. In such cases, these subcontractors will be required to ensure, at a minimum, the protections and safeguards specified in this Agreement.
10.7. Termination and Data Return or Deletion. Upon termination of this Agreement, Simetrik shall, at the Customer’s choice, return or securely delete all personal data processed on behalf of the Customer, in accordance with applicable data protection laws, unless otherwise required by law to retain the data.
10.8. Simetrik's Personal Data Treatment Policy, available at: https://www.simetrik.com/legal/data-privacy-treatment-policy; and Simetrik’s Privacy Notice, available at https://www.simetrik.com/legal/privacy-notice are an integral part of this Agreement. Simetrik may update these links at any time and will notify the Customer in such cases.
11.1. Mutual Warranties. Each Party represents and warrants that (i) it has the legal power and authority to enter into this Agreement and (ii) the performance by such Party of its obligations and duties hereunder will not violate any other agreement such Party is bound to.
11.2. Additional Provider Warranties.
11.3. Future Features and Functionalities. The development, release, and timing of any future features or functionality for the Software are at the sole discretion of Simetrik. Accordingly, Customer acknowledges that it is purchasing Cloud Services based solely on the features and functionality available at the time this Agreement is executed, and not in expectation of any future features. Customer further acknowledges that Simetrik may release additional functionalities in the future that may not be available to Customer, or that may, at Simetrik's sole discretion, require additional payment.
11.4. Customer and User Responsibility. The Simetrik shall not be liable for the proper functioning of the Services, as described in this Agreement and its amendments or addendums, in the event of failures caused by the Customer or Users that impact the accuracy, integrity, or availability of the results generated by the Services.
11.5. Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE CLOUD SERVICES, PROFESSIONAL SERVICES, AND DOCUMENTATION ARE PROVIDED "AS IS," WITHOUT ANY OTHER WARRANTY OF ANY KIND. SIMETRIK MAKES NO EXPRESS, IMPLIED, STATUTORY, OR OTHER WARRANTIES WITH RESPECT TO THE CLOUD SERVICES OR PROFESSIONAL SERVICES. SIMETRIK SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE. FURTHER, SIMETRIK DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED. THE SERVICES ARE NOT DESIGNED, INTENDED, OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS.
11.6. AI Warranties Disclaimer. Simetrik may offer generative artificial intelligence features ("AI Features") to Customer as part of the Cloud Services. However, SIMETRIK DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING THE AI FEATURES, INCLUDING THEIR FUNCTIONALITIES, OUTPUTS, AND THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE AI FEATURES AND/OR THEIR OUTPUTS. THE USE OF THE AI FEATURES AND/OR ANY OUTPUTS GENERATED BY THE AI FEATURES IS AT CUSTOMER’S OWN RISK. THE AI FEATURES ARE PROVIDED "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE," WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AND SIMETRIK EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUALITY, COMPLETENESS, NON-INFRINGEMENT, RELIABILITY, AVAILABILITY, AND PERFORMANCE.
11.7. Disclaimer regarding governmental authorizations.Simetrik shall not be responsible in any way for obtaining, managing, or for any delay, modification, or rejection of the authorizations, permits, licenses, or other procedures required by any applicable governmental or administrative entity or authority, whether local, state, or federal, for the execution of the purpose of this Agreement. Customer acknowledges that obtaining such authorizations is the exclusive responsibility of Customer and/or its affiliates, as applicable. Customer shall bear any consequences arising from their failure or delay in obtaining them, including the eventual inability of Customer to use the Services, in which case the Order Form fees shall still be due once Customer gains access to the Services.
12.1. Declaration and Authorization for Compliance with the Money Laundering and Terrorism Financing Prevention Program, Anti-Corruption and Anti-Bribery Regulations. The Parties hereby declare:
12.2. The Parties further declare that neither their partners, managers, nor direct or indirect personnel, assigned to the execution of this Agreement:
12.3. Each of the Parties hereby authorizes the other Party to make the necessary inquiries in the control lists, whether national or foreign, for these purposes.
12.4. The Parties declare that they have read and understood the regulations related to the prevention of Corruption and Transnational Bribery and Simetrik’s Code of Ethics, and that they are familiar with and comply with the national and international regulations for the fight against corruption and transnational bribery.
12.5. The occurrence of any of the aforementioned situations or the failure to comply with the previously declared obligations will authorize the compliant Party to terminate this Agreement and/or, at its discretion, suspend the performance of its obligations under this Agreement, without the need for any judicial or private request, and no compensation will be due. This is without prejudice to any other legal actions and rights the compliant Party has to claim the liability of the defaulting Party, in accordance with this Agreement.
13.1. Effective Date. The Agreement becomes effective on the start date agreed upon and for the term set out in the Order Form (“Term”). Unless otherwise mentioned in the Order Form, the Agreement shall automatically renew for additional periods equal to the initial Term, unless either Party notifies the other of non-renewal at least 30 days prior to the end of the current Term.
13.2. The Agreement may be terminated by the Parties in the following manner:
13.3. Either Party may terminate this Agreement if the other Party (a) fails to cure a material breach of this Agreement within fifteen (15) days after a written notice specifying the breach and demanding it to be cured, (b) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within thirty (30) days, or (c) pursuant to clause 12.5.
13.3. This Agreement may be terminated by the Customer, subject to the payment of all amounts payable for the Term.
13.4. Effects of Termination.
13.5. The termination or expiry of this Agreement does not affect any right or remedy that has accrued prior such termination or expiry, including the Customer’s payment obligations regarding Services provided by Simetrik.
14.1. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.
14.2. Alternative Dispute Resolution: In the event of any disputes related to the execution, interpretation, performance, termination, or liquidation of this Agreement, the Parties agree to first attempt to resolve the matter directly through alternative dispute resolution mechanisms available under applicable law, including direct settlement. The Parties will have thirty (30) business days from the date either Party sends written notice to the other to initiate such a settlement process. All communications regarding such settlement attempts must be sent electronically or in any other written form to the addresses specified in this Agreement.
14.3. Binding Arbitration: If the dispute is not resolved through direct settlement as described above, any unresolved dispute, claim, or controversy arising from or related to this Agreement, including its performance, breach, or interpretation, as well as the validity or applicability of this arbitration clause, shall be resolved exclusively through binding arbitration in San Francisco, California. The arbitration shall be conducted in accordance with the laws of the State of California.
14.4. Arbitration Procedure: The arbitration shall be conducted by the American Arbitration Association (AAA) under its Commercial Arbitration Rules, as amended from time to time. The Party initiating the arbitration shall provide written notice to the other Party, and arbitration proceedings will commence within sixty (60) calendar days of such notice. The arbitration will be conducted before a single arbitrator with significant experience in the subject matter of the dispute. If the Parties cannot agree on the selection of an arbitrator, the AAA will appoint one. The arbitrator shall have broad discretion to grant or deny relief, and the arbitrator’s decision shall be final, binding, and enforceable in any court of competent jurisdiction.
14.5. Limitation on Claims: The Parties agree that any claim brought under this Agreement must be initiated within one (1) year from the date the cause of action arises. Failure to do so will result in the permanent waiver of such claims.
14.6. Arbitration Opt-Outs: Notwithstanding the foregoing, Simetrik reserves the right to seek temporary, preliminary, or permanent injunctive relief from a court to protect its intellectual property, trade secrets, or confidential information without first resorting to arbitration. Such relief may be sought in the courts located in San Francisco, California, and the Customer agrees to the jurisdiction and venue of such courts.
14.7. Fees and Costs: Each Party shall bear its own costs of arbitration, including attorneys' fees and related expenses.
15.1. Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF DATA, OR LOSS OF GOODWILL, ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
15.2. Liability Cap. THE TOTAL LIABILITY OF THE PARTIES (INCLUDING ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, AND SUBCONTRACTORS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY THE CUSTOMER TO SIMETRIK UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
15.3. Basis of the Bargain. THE PARTIES ACKNOWLEDGE THAT EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SIMETRIK TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT SIMETRIK WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
15.4. Exclusions from Limitations. The limitations set forth in this section shall not apply to: (i) Indemnification obligations set out in clause 16; (ii) Damages resulting from gross negligence, willful misconduct, or fraud.
16.1. Simetrik's Indemnity: Simetrik shall indemnify, defend, and hold harmless the Customer, its officers, directors, employees, agents, affiliates, and subcontractors from and against any and all claims, damages, losses, liabilities, fines, penalties, costs, and expenses (including reasonable attorneys' fees) arising out of or in connection with any claim brought against the Customer by a third party alleging that the Services provided under this Agreement infringe any third-party intellectual property rights, except to the extent that such claim arises from:
16.2. Customer's Indemnity: Customer shall indemnify, defend, and hold harmless Simetrik, its officers, directors, employees, agents, affiliates, and subcontractors from and against any and all claims, damages, losses, liabilities, fines, penalties, costs, and expenses (including reasonable attorneys' fees) arising out of or in connection with any of the following:
16.3. This indemnification obligation shall survive the termination or expiration of this Agreement.
16.4. Indemnification Procedure. Each Party’s obligations under Section 16 shall be valid only if the Party requesting indemnification:
17.1. Modification. Any changes to this Agreement must be made in writing by means of an amendment, a new Order Form or a new Statement of Work and/or any other document signed by the Parties.
17.2. Entire Agreement. This Agreement and the Order Form and Statement of Work, if applicable, constitute the complete agreement between the Parties with respect to its purpose, replacing any other oral or written understandings between the Parties. In case of any contradiction or ambiguity between this Agreement and any Order Form or Statement of Work, the terms set forth in the Order Form and Statement of Work shall prevail.
17.3. Assignment. Neither Party may assign this Agreement without the consent of the other Party. The assignment shall not relieve the assigning Party of its obligations under the assigned Agreement and such assignment shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
17.4. Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
17.5. Non-waiver. Any failure of either Party to enforce performance by the other Party of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver of such Party's right to assert or rely upon such provision, right or remedy in that or any other instance. Neither Party waives any rights or limits its remedies for actions taken outside the scope of this Agreement.
17.6. Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the Parties, and the remaining provisions of the Agreement shall remain in full force and effect.
17.7. Publicity. The Customer authorizes Simetrik to use its trade name, brand, and/or distinctive marks, as instructed by the Customer, for digital or analog media to inform third parties that Simetrik is providing the Services to Customer.
17.8. Force Majure and Acts of God. Except for payment obligations, neither of the Parties shall be responsible or liable for a breach of the obligations assumed in this Agreement, when the obligations derived from this Agreement cannot be totally or partially fulfilled due to any circumstances beyond the Party’s reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving the Parties’ employees), Internet service provider failure or delay, Non-Simetrik application failure, or acts undertaken by third parties, including without limitation, any denial of service attack or third party domain name system event.
17.9. Independent Contractors. The Parties agree that each is an independent contractor and neither Party has the right or authority to assume or create any obligation or responsibility on behalf of the other Party.
17.10. Subcontractors. Simetrik may partially subcontract the performance of the Professional Services. In such an event, Simetrik shall remain responsible for the services performed by the subcontractor and no contractual relationship shall be created between the subcontractor and the Customer.
17.11. Notices. Any communication or notice to be sent by one Party to the other during the term of this Agreement shall be delivered to the following addresses:
18.1. Country Specific Terms. The Parties agree to the following modifications to the Agreement that apply to your country of origin as described below:
