Last Updated: July 12th, 2024

Master Services Agreement

This Master Services Agreement (the “MSA”) is entered into on the Effective Date (as defined herein) by and between Foresight Software Inc., a Delaware for-profit corporation having a principal office located at 500 Harpeth Trace Drive, Nashville, Tennessee 37221, U.S.A. (“FSI”), and “Client”. FSI and Client may be referred to in the singular as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, FSI is engaged in the business of, among other things, creating, developing, authoring, implementing, and providing business-to-business software solutions and services for various organizations and their salesforces, for the purpose of, among other things, assisting and supporting these organizations in identifying pain points in their current or prospective customer’s business, educating current or prospective customers on their business needs, and synthesizing learnings from the pain points and needs of the current or prospective customer and its business (collectively, “FSI’s Services”);

WHEREAS, to facilitate, provide, and deliver the FSI Services, FSI has created, developed, and authored a software-as-a-service platform entitled Foresight™ (the “FSI Platform”), featuring a number of tools therein, including but not limited to Value Map™, Value Assessment™, and Value Intelligence™ (each, a “Platform Tool”) (collectively, the “FSI Platform” and the “Platform Tools” shall be referred to as the “FSI Properties”);

WHEREAS, Client is engaged in the business of, among other things, software development and licensing software solutions to its customer base (collectively, the “Client’s Services”).

WHEREAS, for the purpose of assisting, facilitating, and/or supporting the Client’s Services, Client desires to retain FSI to perform software services, such services described in this MSA and/or in separately executed Schedules, Exhibits, and/or Addenda, each of the terms and conditions set forth in this MSA.

NOW, THEREFORE, in consideration of the mutual covenants and terms hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

TERMS AND CONDITIONS

  1. Definitions.
    • Authorized User. “Authorized User” means an end user that accesses and/or uses the FSI Properties, the end user being authorized to access and/or use the FSI Properties vis-à-vis the Client’s permission to authorize such pursuant to this MSA. For the avoidance of doubt, an “Authorized User” may only be a director, officer, employee, independent contractor or agent of the Client.
    • Contact. “Contact” means any Person who is a current customer of Client, or who has been identified, selected, or targeted by Client as a prospective customer of Client.
    • Affiliate. “Affiliate” means any Person (as defined herein), other than the Parties, that directly or indirectly controls, is controlled by, or is under common control with a Party.
    • Confidential Information. “Confidential Information” means any information that is treated as confidential by a Party, the Party’s Affiliates, and/or the Party’s or its Affiliates’ Representatives (as defined herein), in oral, written, electronic, or other form or media, whether or not such information is marked, designated, or otherwise identified as “confidential,” and includes any information that, due to the nature of its subject matter or circumstances surrounding its disclosure, would reasonably be understood to be non-public, confidential, or proprietary, including (without limitation): (i) all business plans, product plans, computer software, source code, object code, technical and non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, blueprints, designs, design plans, future designs, future design plans, processes, financial data, financial plans, product plans, or lists of actual or potential customers, manufacturers, or suppliers; (ii) notes, materials, applications, drafts, or documents pertaining to Intellectual Property protections not otherwise available to the public; (iii) reports, analyses, notes, or other information prepared by the Party, the Party’s Affiliates, and/or the Party’s or its Affiliates’ Representatives (as defined herein) that are based on, contain, or reflect any Confidential Information; (iv) Personally Identifiable Information (as defined herein); and (v) all other products, services, or operations, whether considered non-public, confidential, or proprietary, including, but not limited to, trade secrets.
    • Deliverable. “Deliverable” means all content, services, and deliverables that FSI is required to provide and deliver to Client under this MSA, as set forth in this MSA and all Schedules, Exhibits, and Addenda attached hereto. “Deliverable” further means and includes, but is not limited to, the “Implementation Services,” as set forth in Schedule A, and the “Subscription,” as set forth in Schedule A.
    • Deliverable Schedule. “Deliverable Schedule” means the timetables, deadlines, and schedules provided for in the Schedules, Exhibits, and Addenda attached hereto.
    • Effective Date. “Effective Date” means the final date signed and executed by duly authorized Representatives (as defined herein) of the Parties.
    • Implementation Services. “Implementation Services” means certain implementation services included with the Deliverable Schedule set forth in Exhibit 1 to this Schedule A.
    • Intellectual Property. “Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) trademarks, service marks, marks, signs, symbols, logos, insignia, and trade dress, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing; (ii) copyrightable (and non-copyrightable) works of authorship and copyrights, including all applications and registrations related to the foregoing; (iii) trade secrets and confidential know-how; (iv) patentable (and non-patentable) inventions, patents, patent applications, and continuations, continuations-in-part, and divisional applications related thereto (and the continuations, continuations-in-part, and divisional applications to the foregoing); (v) websites and internet domain-name registrations; (vi) other intellectual property and related proprietary rights, interests, and protections; and (vii) all modifications, updates, enhancements, augmentations, improvements, customizations, changes, edits, alterations, or derivative works of the foregoing.
    • Person. “Person” means any individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
    • Personally Identifiable Information. “Personally Identifiable Information” or “PII” means any information that can be used to distinguish or trace an individual or an individual’s identity, either alone or when combined with other personal or identifying information, that is linked or linkable to a specific individual.
    • Process. “Process” or “Processing” means any operation or set of operations that is performed on PII or on sets of PII, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, transfer, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
    • Representative. “Representative” means a Party’s or its Affiliates’ director, officer, supervisor, agent, employee, consultant, and/or legal, technical, and business advisor.
    • FSI Intellectual Property. “FSI Intellectual Property” means all Intellectual Property owned by, or under the control of, FSI necessary for use or performance of FSI Properties or FSI Services, which includes: (i) Intellectual Property that was made, invented, authored, developed, created, conceived, filed before the Effective Date, or reduced to practice by FSI; (ii) Intellectual Property that was made, invented, authored, developed, created, conceived, or reduced to practice by FSI apart from FSI’s performance of its duties and obligations under this MSA, and the Schedules, Exhibits, and Addenda attached hereto; (iii) Intellectual Property in, constituting, underlying, embodying, embracing, pertaining to, related to, or applicable to the FSI Properties; or (iv) Intellectual Property in, constituting, underlying, embodying, embracing, pertaining to, related to, or applicable to the Work Product (as defined herein).
    • Client Intellectual Property. “Client Intellectual Property” means all Intellectual Property owned by Client, which includes: (i) Intellectual Property that was made, invented, authored, developed, created, conceived, filed before the Effective Date, or reduced to practice by Client; (ii) Intellectual Property that was made, invented, authored, developed, created, conceived, reduced to practice by Client separate from Client’s use of FSI Properties or apart from Client’s performance of its duties and obligations under this MSA, and the Schedules, Exhibits, and Addenda attached hereto, (iii) all User-Generated Content and (iv) all Client Data.
    • Work Product. “Work Product” means all documents, files, results, things, and materials made, invented, developed, designed, constructed, advanced, fashioned, conceived, reduced to practice, or otherwise created by FSI as a result of this MSA, and the Schedules, Exhibits, and Addenda attached hereto. “Work Product” further means and includes, but is not limited to, the Deliverables. “Work Product” does not include User-Generated Content, Client Data or other Client Intellectual Property or any materials containing Client’s Confidential Information.
    • Third-Party Materials. “Third-Party Materials” mean materials and information, in any form or medium, including any software (including, without limitation, open-source software, such as software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, Berkeley Source Distribution (BSD) licenses, or any other license that is approved by the Open Source Initiative), documents, data, content, specifications, products, equipment, or components of or relating to the FSI Properties that are not proprietary to FSI.
    • Territory. “Territory” means global.
    • Updates. “Updates” mean any updates, bug fixes, patches, maintenance releases, error corrections, enhancements, improvements or other changes to the user interface (UI), user experience (UX), functionality, compatibility, capabilities, performance, efficiency or quality of the FSI Properties.
    • User-Generated Content.  “User-Generated Content” means any output, in any form or medium, generated by the use of FSI Properties.
    • Client Data. “Client Data” means any information, content, materials, names, logos, reports, and data provided or made available by Client or that is collected by FSI in connection with use of the FSI Properties by Client, including information pertaining to its Contacts.  For the avoidance of doubt, Client Data includes Solution Data, Opportunity Data and all information, data, files, links, and other materials submitted to the FSI Properties by or on behalf of Client or its Contacts, that FSI receives through the FSI Platform or that is accessed, processed or collected by FSI on behalf of Client in connection with providing the FSI Platform, including any Personally Identifiable Information.
  2. Engagement; Services
    • Engagement; Software Solutions. Pursuant to the terms and conditions of this MSA, Client engages FSI, and FSI accepts such engagement, to furnish, advance, implement, and/or provide software and services, including the FSI Properties and FSI Services, to facilitate, assist, or support the Client’s Services, such software and services described in separately executed Schedules, Exhibits, and Addenda (collectively, the “Software Solutions”). During the Term (as defined herein), FSI shall provide and deliver to the Client the Software Solutions. The specifications, features, components, elements, and other aspects of the Software Solutions, and the Deliverables related thereto, shall be set forth in the Schedules, Exhibits, and Addenda attached hereto.
    • Subcontractors. FSI, in its sole and absolute discretion, and from time to time, may engage third-party Persons to perform, facilitate, furnish, or support the Software Solutions set forth in this MSA and all Schedules, Exhibits, and Addenda attached hereto. FSI shall ensure that all such third-party Persons comply with this Agreement and shall be fully responsible for all of the acts and omissions of such third-party Persons and for the payment of their compensation.
    • Delivery of Deliverables; Failure or Delay. FSI shall deliver to the Client each Deliverable on or prior to the date established in the Deliverable Schedule, as set forth in the Schedules, Exhibits, and Addenda attached hereto. During the Term (as defined herein), FSI will use commercially reasonable efforts to meet all deadlines, milestones, or dates set forth in an applicable Schedule, Exhibit, or Addendum; provided, however, Client acknowledges and agrees that all such deadlines, milestones, and dates are estimates only and FSI shall have no liability to Client for any failure to meet such deadlines, milestones, or dates. FSI is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by the Client’s delay in performing, or failure to perform, any of its obligations under this MSA.
    • Changes. Either Party may, at any time during the Term (as defined herein), request, in writing, changes to the Software Solutions described, specified, or outlined in an applicable Schedule, Exhibit, or Addendum (each, a “Change Request”). The Parties shall evaluate each Change Request in good faith and, if agreed, implement such changes in accordance with the Change Request. No changes will be effective unless and until memorialized in a written agreement signed by duly authorized Representatives of both Parties.
  3. Payment Terms
    • Invoices. In consideration of the commitments and obligations hereunder, within thirty (30) days of receiving any invoice from FSI, the Client shall tender payment to FSI for all properly billed and undisputed amounts according to the prices and billing conditions set forth in the Schedules, Exhibits, and Addenda attached hereto.
    • Method of Payment; Taxes. The Client shall make all payments hereunder in United States (US) dollars by Bank Transfer or Credit Card. All fees and other amounts payable by Client under this MSA are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder excluding taxes on FSI’s income, property and personnel.
    • Untimely Payment. In the event of an undisputed payment being more than sixty (60) days overdue, FSI shall be entitled to a late payment surcharge equivalent to five percent (5%) of the overdue payment accruing on a monthly basis. If such failure continues for ninety (90) days following written notice thereof, FSI may disable, withhold, suspend, or revoke any licenses or access granted under the Schedules, Exhibits, and/or Addenda, or FSI may withhold or cease performance of the Software Solutions, until all past due amounts and interest thereon have been paid to FSI.
    • Books, Accounts, and Records. Each Party will maintain complete and accurate books, accounts, and records concerning the pricing and billing conditions set forth in the Schedules, Exhibits, and Addenda attached hereto.
  4. Intellectual Property Rights
    • Intellectual Property of the FSI Properties. Unless specified otherwise in a Schedule, Exhibit, or Addendum, all Work Product arising out of, or derived from, the Software Solutions, or otherwise developed, designed, furnished, advanced, invented, authored, or otherwise created in performance of the MSA and the Schedules, Exhibits, and Addenda, are and shall be the sole and exclusive property of FSI, and FSI shall be deemed the owner of all Work Product. Unless specified otherwise in a Schedule, Exhibit, or Addendum, and for the avoidance of doubt, Client hereby irrevocably assigns all right, title, and interest in the Work Product to FSI, including any and all Intellectual Property in, constituting, underlying, embracing, embodying, relating to, or applicable to the Work Product.
    • Client Obligations. Where necessary, Client shall execute and deliver to FSI such further instruments and documents, as FSI may request, for the purpose of establishing, evidencing, registering, perfecting, and enforcing or defending FSI’s ownership and perfection of all right, title, and interest in and to Work Product. Client agrees to reasonably cooperate with FSI, at FSI’s reasonable expense, in establishing, evidencing, registering, perfecting, and enforcing or defending FSI’s ownership and perfection of all right, title, and interest in and to the Work Product. Client irrevocably waives any and all claims Client may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Work Product.
    • Reservation of Rights. All right, title, and interest in and to the FSI Intellectual Property, the FSI Properties, and the Work Product shall remain solely with, and inure to the sole and exclusive benefit of, FSI. All rights not expressly granted to Client in the FSI Intellectual Property, the FSI Properties, and the Work Product are reserved by and for FSI. All right, title, and interest in and to the Client Intellectual Property shall remain with the Client. All rights not expressly granted to FSI in the Client Intellectual Property are reserved by and for Client.
  5. Data Categories and Data Rights
    • Definitions of Data Categories. Any and all data, data points, or data sets touching or affected by the FSI Properties or this MSA, as well as any Schedule, Exhibit, or Addendum attached hereto, are defined as follows:
      • “Public Domain Data” shall include any and all data that is generally available to the public and not proprietary or confidential. For the avoidance of doubt, “Public Domain Data” may include data for any Contact, such as job titles and locations of the Contact, as well as the metadata directed to the foregoing (to the extent the Contact is an individual), and “Public Domain Data” may further include data for any company type, investment scale, or location of the company, as well as the metadata directed to the foregoing (to the extent the Contact is an entity). 
      • “Industry Data” or “Market Data” shall include any and all data that is generally available to the public regarding a Contact and its industry, trade, practices, past and current operations, sales patterns and forecasting, or other publicly known efforts related to the foregoing. For the avoidance of doubt, “Industry Data” does not include any unique or specific information directed to the Contacts engaged or sought to be engaged by and through the use of the Client’s Confidential Information.
      • “Solution Data” or “Technology/Offering Data” shall include any and all data documenting, collecting, or organizing specific solutions, solution areas, capabilities, products, or services for the Client’s Contact, as well as why and in what manner the solutions, solution areas, capabilities, products, or services are advantageous for the Client’s Contact.“
      • Opportunity Data” or “Prospect Data” shall include any and all information on Contacts the Client is engaging, or seeking to engage, including the name, company name or type, commercial opportunity, or relevant business need that may be provided to FSI by Client by manual means of transfer or through integration with a customer relationship management (CRM) technology.
    • Data Rights. Unless otherwise stated in this MSA or any applicable Schedule, Exhibit, or Addendum, Client shall own all right, title, and interest in and to the Solution Data and the Opportunity Data. During the Term (as defined herein) of this MSA, Client irrevocably grants to FSI a non-exclusive, paid-up, non-transferable, and sublicensable license to use the Solution Data and Opportunity Data solely in connection with providing the FSI Properties to Client. Both Parties shall have unfettered and restricted access to and use of Public Domain Data and Market Data.
    • Data Comprising PII. In facilitating, delivering, or providing the Software Solutions, or by and through the Client’s and its Authorized User’s use of or access to the FSI Properties, FSI may collect, receive, store, or otherwise Process Personally Identifiable Information. In accordance with Section 8 of this Agreement, FSI shall treat such uncombined, non-anonymized, and non-aggregated PII as “Confidential Information.”  In the event of a Security Breach (as defined below), FSI will notify Client immediately.  Such notice will describe the breach, the status of FSI’s investigation, and, if applicable, the potential number of persons affected.  In addition, such notice shall include a detailed description of the incident, the type of Client Data that was the subject of the Security Breach, and any other information that Client may reasonably request concerning the Security Breach. FSI will not communicate with any third party regarding any Security Breach except as (a) required by applicable law (with prompt written notice to Client); or (b) specified by Client.  FSI agrees to act promptly, at its own expense to investigate the incident and to identify, prevent and mitigate the effects of any such Security Breach, and to carry out any recovery necessary, in its reasonable judgement, to remedy the impact, including providing notification to all individuals affected by such Security Breach. For the purposes of this sub-section, the term “Security Breach” means a potential or confirmed exposure that could lead to unauthorized or inappropriate collection, use, access, disclosure or modification of any data that is provided (either directly or indirectly) by or through a user of the FSI Properties.  In the event of a Security Breach FSI will reasonably cooperate with Client so that Client may determine its legal obligations with respect to notifying its impacted individuals, regulators, and/or law enforcement, if any. FSI shall provide Client any documentation reasonably necessary to make such communication(s).  In the event of a suspected Security Breach or a Security Breach, Client shall have the right to (a) demand immediate return of all Client Data; (b) recover actual damages incurred by reason of such event, including, without limitation, the costs of notification to and credit monitoring for impacted and potentially impacted individuals (which notification and credit monitoring shall be done within Client’s sole discretion) and its attorneys’ fees and costs and pursue any other remedy available hereunder or at law or in equity.

Schedule A

Implementation, Licensing, and Support of Certain FSI Properties

This Schedule A, in conjunction and accordance with the “Master Services Agreement” (the “MSA”) entered into by and between Foresight Software Inc. (“FSI”) and Omnigo (“Client”), sets forth the rights, specifications, features, and components in connection with FSI’s implementation, licensing, and support of certain FSI Properties, for the benefit of the Client. Unless provided for herein, this Schedule A incorporates all definitions, terms, and conditions of the MSA. The terms and conditions of this Schedule A are as follows:

  1. Implementation
    • Implementation Services. FSI agrees to deliver and provide certain implementation services and Deliverables to the Client, in accordance with the Deliverable Schedule set forth in Exhibit 1 to this Schedule A (the “Implementation Services”). Specifically, FSI shall provide, deliver, and implement the following Platform Tools of the FSI Platform: Value Map™, Value Assessment™, and Value Intelligence™. The function of each of the foregoing Platform Tools is described as follows:
      • Value Map™: FSI will codify the Client’s business needs into FSI’s propriety data model, incorporating and/or integrating the Market Data;
      • Value Assessment™: FSI will deploy FSI’s proprietary data model, capturing insights and use cases for certain Contacts, incorporating and/or integrating the Solution Data; and
      • Value Intelligence™: FSI will create an interactive database allowing the Client to identify and target certain needs for Contacts, including the provision of market insights for said Client, incorporating and/or integrating Opportunity Data.
    • Facilitating the Implementation Services. In order for FSI to deliver and provide the Implementation Services in accordance with the Deliverable Schedule set forth in Exhibit 1 to this Schedule A, Client agrees to the following: (i) Client shall provide FSI with any and all materials pertinent to Client’s software platform and the relevant Contacts, which shall be used in creation and deployment of the Value Assessment™ and Value Intelligence™ tools; (ii) Client shall enable FSI to access a baseline set of data or other data required for implementation regarding the Client’s contacts; and (iii) Client shall promptly provide ongoing feedback to FSI, as FSI may request from time to time.
  2. Subscription Services; Intellectual Property Rights
    • License of the Online Platform. During the Term of the MSA, FSI hereby grants to Client and its Authorized Users a limited, revocable (upon termination), non-transferable, non-exclusive, and non-sublicensable right to use and access the FSI’s online platform entitled the “Foresight Portal” (and any FSI Intellectual Property required to use the Foresight Portal) and all other FSI Properties and Work Product provided by FSI to Client, which comprises the results and/or achievements of the Implementation Services, in and limited to the Territory and solely in connection with the Client’s Services under this MSA (hereinafter, the “Subscription”).
    • Intellectual Property Rights. FSI shall retain all right, title, and interest in and to the Foresight Portal, as well as all Intellectual Property rights in, constituting, embodying, embracing, relating to, pertaining to, or applicable to the Foresight Portal.
  3. Support and Maintenance Services; Updates
    • Support Services. During the Term, FSI shall provide Client with the support and maintenance services described on Exhibit 1 to this Schedule A (the “Support Services”). The Support Services provided to Client will ensure that the FSI Properties, including the Foresight Portal, are reliable, secure, and available to meet the needs of the Client and its Authorized Users. Any additional Support Services requested by Client, and for which there is an additional charge, must be pre-approved in writing by both Parties.
    • Updates. During the Term, FSI shall provide to Client all Updates in and to the applicable FSI Properties, including the Foresight Portal.

Exhibit 1 to Schedule A

In accordance with Schedule A, the milestones for the Deliverables, the payment terms in connection with the Deliverables, and the Support Services are set forth as follows:

  1. Deliverables and Deliverable Schedule for Initial Term. For the Initial Term, the Deliverables shall be furnished, produced, developed, advanced, or otherwise performed in accordance with the following Deliverable Schedule:
DeliverableDeliverable ScheduleRate (Fee or Expense)
Access to Foresight Portal (Subscription)Date of SignatureDocumented in order form
Support ServiceRate (Fee or Expense)Occurrence
Scheduled Maintenance and Updatesn/aNo more than once per month unless an Update includes repair to functionality of FSI Properties or the Update is required to assure security or stability of the FSI Properties
Backup & Recoveryn/aNo more than once per day, FSI will capture and store a backup and access and usage data of the FSI Properties.
Technical Supportn/aAs necessary, an FSI Representative will provide responses to queries regarding the technical performance, operability, or functionality of the FSI Properties, including troubleshooting