Showpad Master Subscription Agreement

Thank you for reviewing Showpad’s agreement. We find that occasionally, legal and procurement teams are asked to review an agreement without being given a complete understanding of what is being procured and how Showpad’s Products and Services work. For this purpose, we have created a contract FAQ, found here. This FAQ does not form part of the agreement and is for information purposes only.

This Master Subscription Agreement (“MSA”) governs the procurement of Showpad Products and Services as set forth in the Sales Order that references this MSA. This MSA may govern multiple Sales Orders between Showpad and Customer, (including between their Affiliates).

1. Products and Services.

   1. Showpad Platform. The Showpad Platform provides solutions for coaching sales teams, managing marketing content, communicating with sales prospects, and analyzing data about seller and buyer activity. It consists of: (i) a cloud-based back-end that stores, analyzes, manages, distributes, and processes Customer Content; and (ii) front-end clients (e.g., mobile applications, web interface, plug-ins, system connectors) that allow for the retrieval, presentation, distribution, and management of Customer Content and related analytics. Details about current features and functionality of the Showpad Platform are described in the Documentation. Showpad regularly updates and enhances the Showpad Platform using a continuous delivery model during the Subscription Term. Customer’s procurement is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Showpad regarding future functionality or features.
   2. Professional Services. If Customer procures Professional Services from Showpad, the specific details of the Professional Services will be described on the Sales Order. Showpad does not provide any custom deliverables or services under the Agreement that would qualify as work-made-for-hire. Professional Services will be performed remotely unless otherwise specified, in which case Customer will be invoiced at cost for pre-approved reasonable travel, hotel, and out-of-pocket expenses properly incurred by Showpad in connection with the Professional Services.
   3. Technical Support. Showpad’s standard technical support is included at no additional charge during the Subscription Term. Access to online support resources (help.showpad.com) are available 24x7x365 to all Authorized Users. Access to live technical support is provided to Customer’s designated support administrators (up to three (3)) during normal business hours (Mon – Fri, 8am – 5pm in Customer’s timezone).

2. License Grant and Restrictions.

   1. License Grant and Reservation of Rights. Subject to ongoing compliance with the Agreement, Showpad grants Customer a non-exclusive and non-transferable license during the Subscription Term to permit Authorized Users to access, install, implement, and use the Products and Services solely for Customer’s direct beneficial business purposes. Customer’s rights to use the Products and Services are limited to those expressly set forth in the Agreement, including limitations based on license type set forth in the Sales Order. Showpad retains all right, title, and interest in and to the Products and Services and all related intellectual property rights, including without limitation any modifications, updates, customizations, apps, or other add-ons.
   2. Restrictions and Acceptable Use. Except as explicitly permitted under the Agreement, Customer must not do any of the following with the Products and Services: (i) use in violation of any applicable law or regulation; (ii) use in a manner that would cause a material risk to the security, integrity, availability, or operations of Showpad (iii) disassemble, decompile, or reverse engineer; (iv) redistribute, sell, rent, lease, or sub-license to any third party; (v) remove, obscure, or alter any proprietary notices; (vi) circumvent, disable, breach, or stress test any security, authentication measures, or other technological features; or (vii) probe, scan or test the vulnerability of the Showpad Platform, network, or system. Any use of the Products and Services by Customer or its Authorized Users that in Showpad’s reasonable assessment threatens the security, integrity or availability of the Products and Services may result in suspension of the Products and Services by Showpad, however Showpad will use commercially reasonable efforts under the circumstances to provide Customer with notice prior to any such suspension.
   3. Authorized Users. Access to the Products and Services is limited to Authorized Users. Customer may reassign Authorized User accounts, but accounts must not be shared among multiple users. The Showpad Platform may not be accessed from more than five (5) unique devices per Authorized User. Customer will (i) ensure that its Authorized Users use the Products and Services in compliance with the terms of the Agreement; (ii) promptly report to Showpad any violation of the Agreement by its Authorized Users and disable such users’ access; and (iii) ensure that no false or misleading personal information is used to create user accounts. Customer is responsible for any breach of this Agreement by any of its Authorized Users.
   4. Over-usage. Showpad may monitor the number of Authorized Users on a regular basis. If the number of Authorized Users exceeds Customer’s entitlements under the applicable Sales Order(s), Customer will either (i) reduce the number of Authorized Users to match Customer’s entitlements, or (ii) sign an additional Sales Order to cover the excess users. If Customer fails to take such action within 30 days after receiving notification of over-usage, Customer will be invoiced for the excess users, prorated for the remainder of the then-current Subscription Term.

3. Customer Content, Security and Privacy.

   1. Ownership and Permitted Use. As between Showpad and Customer, all Customer Content is and remains Customer’s property. Showpad will process, reproduce, display, copy, transmit, host, and otherwise use Customer Content solely (i) to the extent necessary to perform its obligations or enforce its rights under the Agreement, or (ii) where required or authorized by law.
   2. Customer Responsibility and Obligations Regarding Customer Content.
      1. Customer retains complete control over the installation, configuration, and usage of the Showpad Platform, and Showpad will not be responsible or liable for any deletion, corruption, damage, destruction, or unintended exposure of Customer Content due solely to acts, omissions, or negligence of Customer.
      2. Customer is responsible for ensuring that Customer Content does not violate the Agreement, third-party intellectual property rights, or applicable laws and regulations (including illegal, harmful, offensive, defamatory, misleading, obscene, or abusive material). Customer will take reasonable steps to identify and promptly remove any such Customer Content.
      3. Customer allows for the processing of Customer Content, and represents and warrants that (i) Customer Content will not include any Sensitive Personal Information, and (ii) all collection, transfer, and use of any Personal Data in connection with the Products and Services will comply with all applicable privacy laws, regulations, self-regulatory guidelines (including proper disclosure via Customer’s privacy policy and receipt of all consents required to process any Personal Data with the Products and Services).
   3. Security. Showpad will establish and maintain appropriate administrative, technical, and physical safeguards and controls to: (i) ensure the ongoing confidentiality, integrity, availability, and resilience of the Products and Services and Customer Content; (ii) restore the availability and access to Customer Content in a timely manner in the event of a physical or technical incident; and (iii) have in place the process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing through the Products and Services.
   4. Compliance with Privacy Laws. Showpad will comply with applicable privacy and data protection laws governing its processing and storage of Personal Data in connection with Showpad’s role as described in the Agreement. If Customer’s use of the Products and Services requires Customer to enter into a data processing agreement, the Showpad data processing addendum “DPA” located at www.showpad.com/dpa will be incorporated into the Agreement by reference, unless Showpad and Customer have executed a separate data processing agreement with regard to Customer’s use of the Products and Services.

4. AI Features

   1. Use Restrictions. Customer and its Authorized Users will use the AI Features only as permitted under this Agreement, and will not use the AI Features: (a) to mislead any person that Output was solely human-generated; (b) to generate spam, fraudulent or inappropriate Output or Output that infringes on any third-party intellectual property rights; (c) in connection with the operation of any hazardous environments or critical systems that may lead to serious bodily injury or death, or cause environmental or property damage; (d) for automated decision-making; (e) to make legal, tax, or financial decisions or (f) in a manner that violates the Documentation or any usage guidelines or parameters.
   2. Ownership of Inputs and Outputs. Customer owns all right, title, and interest in and to Inputs, and Showpad hereby transfers and assigns to Customer all right, title, and interest, if any, that Showpad may have in and to all Outputs. Notwithstanding the foregoing, Outputs do not include, and Customer does not acquire any ownership interest in, any proprietary information from the applicable Sub-Processor. Customer grants Showpad the right to process the Inputs and Outputs to the extent necessary to perform its obligations or enforce its rights under the Agreement or where required or authorized by law. Outputs shall not include any Showpad technology, pre-existing Showpad materials, anonymized and aggregated metadata, or Showpad’s intellectual property rights in and to the Products and Services. Output may not be unique across customers, and the AI features may generate the same or similar results across customers.
   3. Use of Inputs and Outputs. Showpad will not use Inputs or Outputs to train, retrain, or improve foundational or general-purpose AI. Inputs and Outputs may be used to train the AI Features within Customer’s instance of the Showpad Platform.
   4. Output Disclaimer. Outputs are generated through AI Features and are not tested, verified, endorsed, or guaranteed to be accurate, complete, or current by Showpad. Customer is responsible for independently reviewing and verifying all Outputs as to appropriateness for any Customer use cases or applications.
   5. AI Risks and Responsibilities. AI technologies have known and unknown risks and limitations. Customer acknowledges that it is solely responsible for developing its own internal policies and instructing its Authorized Users on the appropriate use of the AI Features. Showpad agrees to take reasonable efforts to mitigate the risks of (a) inaccuracies or errors in Outputs, (b) biases, lack of fairness, or discriminatory Outputs, or (c) Outputs that are unsafe, harmful, or offensive.
   6. Transparency.
      1. Showpad shall, upon Customer’s reasonable request, provide Customer with standard documentation regarding data security and privacy of the AI Features.
      2. Showpad shall only Process Customer Content in AI Features in accordance with documented instructions from Customer as set out in the Agreement, or other written agreement.
      3. Showpad shall maintain policies for the ethical and responsible use of AI Features that promote transparency, mitigate bias, and ensure fairness and accountability in all applications of AI Features provided by Showpad to Customer.
   7. Regulatory Compliance. Showpad shall ensure that its AI Features comply with applicable laws and regulations governing the use of AI and automated decision-making.
   8. Disabling AI Features. Administrators have the ability to disable AI Features within the Showpad Platform.

5. Fees, Payments, & Taxes.

   1. Payments and Fees. Customer must pay the Fees according to the payment terms in the Sales Order in the currency stated. All invoices will only be delivered electronically using the billing and contact information provided by Customer. Customer agrees to provide clear indication with its payment as to which invoices (or portions thereof) the payment should be applied. Alternatively, these payment details can be emailed to Billing@Showpad.com no later than the date of payment.
   2. Failure to Pay. If Customer fails to pay any amount due under the Agreement according to the payment terms in the Sales Order, Showpad will send Customer a reminder notice. If Customer fails to pay within 15 days of the date of the reminder notice, Showpad may, in its sole discretion, suspend or restrict the Products and Services. Showpad may charge interest at a monthly rate equal to the lesser of 1% per month or the maximum rate permitted by applicable law on any overdue Fees, from the due date until the date the overdue amount (plus applicable interest) is paid in full.
   3. Disputes. If Customer believes that Showpad has incorrectly billed Customer, Customer must contact Showpad in writing within thirty (30) days of the invoice date, specifying the error. Customer is not entitled to delay payment or offset or deduct any amounts from Showpad’s invoice unless (i) Customer has properly notified Showpad of the dispute, and (ii) the dispute is made in good faith.
   4. Taxes. Customer is responsible for paying all applicable Taxes. If Showpad has the legal obligation to pay or collect Taxes, Showpad will add such Taxes to the applicable invoice and Customer will be obligated to pay such Taxes, unless Customer provides Showpad with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues Showpad for unpaid Taxes for which Customer is responsible under the Agreement and which Customer did not pay to Showpad, Showpad may invoice Customer and Customer will be obligated to pay such Taxes to Showpad or directly to the taxing authority, plus all applicable interest, penalties, and charges.

6. Intellectual Property Indemnification.

   1. Showpad Obligations. Showpad will (i) defend at its expense, and (ii) pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Showpad) for third-party Claims alleging that the Products and Services directly infringe the third party’s patent, copyright, or trademark.
   2. Customer Obligations. Customer will (i) defend at its expense, and (ii) pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Customer) for third-party Claims alleging that the Customer Content directly infringes the third party’s patent, copyright, or trademark.
   3. Conditions. The indemnification obligations under this article are subject to the indemnified Party: (i) promptly giving written notice of the Claim to the indemnifying Party; (ii) giving the indemnifying Party sole control of the defense, negotiation, and settlement of the indemnified portion of the Claim; and, (iii) providing the indemnifying Party with all reasonable assistance required to effectively defend the Claim.
   4. Exceptions.
      1. Showpad will not have any indemnification obligation or liability regarding a third-party intellectual property infringement Claim when the infringement was caused by: (i) a combination of the Products and Services with any component not supplied by Showpad, or with a third-party component activated at the sole risk of Customer; (ii) unauthorized alteration or modification of the Products and Services by anyone other than Showpad, or (iii) failure by Customer to use the latest version of the Products and Services as requested by Showpad.
      2. Customer will not have any indemnification obligations or liability regarding a third-party intellectual property infringement Claim when the infringement was caused by any unauthorized combination of Customer Content with any third-party component not provided by the Customer so long as the non-combined or non-altered Customer Content as such is not infringing.
   5. Remedies for Third-Party IP infringement. In the defense or settlement of any third-party intellectual property infringement Claim, Showpad may, at its sole option and expense: (i) procure for Customer a license to continue using the Products and Services in the same manner as anticipated by the Agreement; (ii) replace or modify the allegedly infringing Products and Services to avoid the infringement at no additional cost to Customer; or (iii) terminate Customer’s license and access to the Products and Services (or its infringing part) and refund any prepaid unused Fees as of the date of termination. The remedies and obligations in this Section 6.5 are Showpad’s sole and exclusive remedies and liability regarding the subject matter giving rise to any third-party intellectual property infringement Claim.

7. Limitation of Liability.

   1. Disclaimer of Indirect Damages. To the extent permitted by law, neither Party will, under any circumstances, be liable to the other Party or to any third party for indirect, consequential, incidental, special, or exemplary damages, or for lost profits or loss of business arising out of or related to the Agreement, even if the Party is apprised of the likelihood of such damages occurring.
   2. Cap on Liability. To the extent permitted by law, under no circumstances will either Party’s total aggregate liability of all kinds arising out of or related to the Agreement, regardless of the forum and regardless of whether any Claim is based on contract, tort (including negligence), or otherwise, exceed the total amounts paid or payable by Customer under the Agreement during the twelve (12) months immediately preceding the date of the event giving rise to the Claim. The foregoing limitations in Sections 7.1 and 7.2 do not apply to Claims based on: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; (iii) either Party’s intellectual property indemnification obligations in Section 6; (iv) the liability of either Party for misappropriating the other Party’s intellectual property; and (v) Customer’s payment obligations.
   3. Third-Party Products. The Agreement does not govern Customer’s use of Third-Party Products used in connection with the Products and Services. Third-Party Products are governed solely by the terms and conditions between Customer and the Third-Party Product developer. Showpad does not make any commitments or claims regarding security, confidentiality, or performance of any Third-Party Products, and specifically disclaims any liability regarding Third-Party Products. Customer acknowledges and accepts that Third-Party Products: (i) are activated and used at the sole risk of Customer; (ii) are not warranted, supported, or endorsed by Showpad; and (iii) may degrade the performance of the Products and Services beyond Showpad’s reasonable control. To the extent any Third-Party Product accesses, processes, or gathers Personal Data, the applicable third party is Customer’s direct data processor, and is not acting as a data sub-processor of Showpad.

8. Term and Termination.

   1. Term. The Subscription Term is set forth in the applicable Sales Order. This MSA will apply to each Sales Order in which it is incorporated until the expiration of the Subscription Term, as modified by any applicable extension or early termination.
   2. Termination for Cause. If either Party commits a material breach of the Agreement, the non-breaching Party may give written notice describing the nature and basis of the breach to the breaching Party. If the breach is not cured within thirty (30) days of the notice date, the non-breaching Party may immediately terminate the Agreement, in whole or in part.
   3. Effect of Termination or Expiration.
      1. All access to and use of the Products and Services must immediately cease upon termination or expiration of the Sales Order.
      2. If the Agreement is terminated for Showpad’s uncured material breach, Showpad will provide Customer a pro-rata refund of all prepaid but unused Fees.
      3. If the Agreement is terminated for any reason other than Showpad’s uncured material breach, Customer will be responsible for Fees covering the remainder of the then-current term.
      4. Each Party will return to the other Party or destroy all materials containing or reflecting any of the other Party’s Confidential Information. The Customer will be able to retrieve all Customer Content in native format and analytics relating to the use of the Products and Services for thirty (30) days following the Agreement termination date. Customer Content will be purged from Showpad systems within 200 days after termination of the Agreement. During such retention term, Showpad will not use the Customer Content and analytics relating to the use of the Products and Services for any other purpose than to ensure backup availability.
   4. Survival. The termination or expiration of the Agreement will not affect any provisions of the Agreement that by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, payment obligations, confidentiality, term and termination, effect of termination, intellectual property, license compliance, limitation of liability, privacy, content monitoring, and the “General Provisions” section in this MSA.

9. Warranties

   1. Products and Services Warranties. Showpad warrants that (i) the Showpad Platform as delivered to Customer will materially conform to the Documentation and specifications set forth in the applicable Sales Order; and (ii) the overall functionality of the Showpad Platform will not be materially decreased during the Subscription Term. Showpad further warrants that Showpad will perform Professional Services in a professional and workmanlike manner. Customer must notify Showpad of a Claim under this warranty within thirty (30) days of the date on which the condition giving rise to the Claim first appears.
   2. Remedies for breach of warranties. To the extent permitted by law, Customer’s sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to replacement of the non-conforming Showpad Platform or re-performance of the Professional Services, as applicable. If in Showpad’s sole discretion replacement or re-performance is not commercially reasonable, Showpad may terminate the applicable portion of the Sales Order and provide a refund of any prepaid unused Fees for the applicable Products and Services.
   3. No implied warranties. To the maximum extent permitted by law and except for the express warranties in this Section, Showpad provides the Products and Services on an “as-is” basis. Showpad disclaims and makes no other representation or warranty of any kind, express, implied, or statutory (including claims about merchantability, title, non-infringement, accuracy, or fitness for a particular purpose). Customer acknowledges that Showpad does not control and Showpad is not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss, or other damage arising from (i) Customer equipment or the transfer of data over communication networks, facilities, and devices (including the Internet); (ii) limitations, interruptions, delays, cancellations, and other problems inherent in the use of such communications networks, facilities, and devices not within Showpad’s control; and (iii) Customer’s failure to properly install appropriate security updates and patches to software and programs on networks and devices within Customer’s control.

10. Confidentiality.

    1. Use and Protection. The receiving Party will only use Confidential Information for the purposes of the Agreement and will not reproduce, disseminate, or disclose Confidential Information to any person, except to its employees and authorized representatives (e.g., temporary employees, consultants, advisors, and contractors) who need to know the Confidential Information for the purposes of the Agreement and are bound by confidentiality obligations at least as restrictive as those in this Section. The receiving Party will treat Confidential Information with the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. The obligations in this Section survive for three (3) years following expiration or termination of the Agreement. Any Confidential Information retained in back-up media will continue to be subject to this Section until it is deleted.
    2. Permitted Disclosure. The receiving Party may disclose Confidential Information: (i) as approved in a writing signed by the disclosing Party; (ii) as necessary to comply with any law or valid order of a court or other governmental body; or (iii) as necessary to establish the rights of either Party, but in the case of (ii) and (iii), only if the receiving Party promptly notifies the disclosing Party of the details of the required disclosure and gives the disclosing Party all assistance reasonably required by the disclosing Party to enable the disclosing Party to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence.

11. General Provisions.

    1. Relationship. Showpad will be and act as an independent contractor (and not as the agent, partner, or representative of Customer) in the performance of the Agreement. The Agreement does not create a partnership, franchise, joint venture, agency, or fiduciary relationship between the Parties.
    2. Notices. Any notice given under the Agreement must be in writing and delivered by email to the following addresses (or alternative addresses provided in writing by each Party): Legal.Notifications@Showpad.com (to Showpad); the order contact email address set forth in the Sales Order (to Customer). All notices will be deemed to have been delivered the second business day after sending by email.
    3. Feedback and Metadata. Customer may provide feedback to Showpad about the Products and Services (e.g., technical support input, suggestions, or enhancement requests) and generate metadata (i.e., anonymous, aggregated, non-personal, technical data from the Products and Services). Metadata do not include Personal Data. Showpad may develop, modify, and improve the Products and Services and AI Features based on Customer’s feedback and metadata. Showpad reserves the right to use, publish, and otherwise exploit metadata and feedback without restriction.
    4. Beta Products and Services. From time to time Showpad may make certain features and functionality available to Customer that are subject to further testing and development. These features and functionalities (collectively “Beta Products and Services”) will be marked as alpha, beta, demo, demonstration, evaluation, trial, early access, preview, or any other words that impart a similar meaning. Customer acknowledges that these Beta Products and Services might not function as intended and agrees not to use them unless Customer accepts the risks of using pre-release technologies. The Beta Products and Services are experimental and do not create any obligation for Showpad to continue to develop, productize, support, repair, or offer for sale the Beta Products and Services. The Beta Products and Services are provided “as is” without any express or implied warranty. In no event will Showpad or its suppliers be liable for any damages or for any indemnification obligations whatsoever arising out of the use of or inability to use the Beta Products and Services.
    5. Waiver. No failure or delay by either Party in exercising any right under the Agreement will constitute a waiver of that right. Any rights under this Agreement can only be waived, in whole or in part, in writing signed by the Parties.
    6. Cumulative remedies. Other than as expressly stated in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies available at law or in equity.
    7. Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the provision may be interpreted by the court so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining portions of the Agreement will remain in full force and effect.
    8. Independent Allocations of Risk. Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of the Agreement between the Parties. This allocation is reflected in the pricing offered by Showpad to Customer and is an essential element of the basis of the bargain between the Parties.
    9. Assignment. Neither Party may assign any of its rights or obligations under the Agreement without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign the Agreement in its entirety (including all rights and obligations) without consent of the other Party 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 other Party. Any purported assignment in violation of this Section will be null and void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
    10. Force Majeure. Neither Party will be liable for, or be considered to be in breach of the Agreement on account of any delay or failure to perform as required by the Agreement as a result of any unforeseeable or exceptional situation beyond its reasonable control, so long as the non-performing Party (i) did not cause such situation by its own negligent acts or omissions, and (ii) exercised all due diligence and used commercially reasonable efforts to avoid such situation and mitigate the impact.
    11. No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement, including, without limitation, Authorized Users.
    12. Entire Agreement. The Agreement contains the entire understanding of the Parties relating to the subject matter and supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations and warranties, both written and oral, regarding the subject matter. No modification or amendment of any provision of the Agreement will be effective unless in writing and signed by the Party against whom the modification or amendment is to be asserted.
    13. Customer’s Terms and Conditions. Any terms or conditions in Customer’s purchase order or any other related documents submitted by or on behalf of Customer to Showpad do not form part of the Agreement and are void, unless otherwise expressly agreed in writing and signed by the Parties.
    14. Counterparts. The Agreement (or a component) may be executed in counterparts, which taken together will form one legal instrument.
    15. Anti-Corruption and Compliance. Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Showpad’s employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Showpad of such violation. Each Party agrees to comply with applicable trade control laws and regulations. For US Government end users only: Customer acknowledges that Products and Services are “Commercial Item(s),” as that term is defined at 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as the terms are used in 48 C.F.R. section 12.212 or 48 C.F.R. section 227.7202, as applicable.
    16. Governing Law, Venue, and Disputes. The Agreement is governed by and construed under the laws of Belgium (for Agreements with Showpad NV) or the laws of the State of Delaware (for Agreements with Showpad, Inc.), without regard to any conflict of law rules or principles, and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods. The Parties irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction in Ghent, Belgium (for Agreements with Showpad NV) or New Castle County, Delaware (for Agreements with Showpad, Inc.). Parties will first try to settle any dispute between them amicably in good-faith negotiations prior to seeking enforcement from a court.

12. Definitions.

    1. “Affiliate(s)” means, for a Party, any other entity that controls, is controlled by, or under common control with the Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the affairs of an entity through at least 50% of the shares, voting rights, participation, or economic interest in such entity.
    2. “Agreement” means the applicable Sales Order and this MSA (including all exhibits, addenda, and amendments which are properly attached or incorporated by reference).
    3. “AI” means machine-based systems, including machine learning, designed to generate Outputs such as results, content, or other materials based on input data.
    4. “AI Features” means functionality within the Products and Services that uses AI.
    5. “Authorized User(s)” means any individual or entity for whom a unique username and password has been created under Customer’s Showpad account. Authorized Users may include employees of Customer or its Affiliates or other third parties, so long as they are not a direct competitor of Showpad.
    6. “Claim” means a claim, demand, action, or legal proceeding filed against a Party.
    7. “Confidential Information” means non-public or proprietary information about the disclosing Party’s business (including copies, summaries, and extracts) that is (i) disclosed in tangible form and identified in writing as confidential at the time of disclosure, (ii) disclosed in non-tangible form and unambiguously identified as confidential at the time of disclosure, or (iii) disclosed in such a manner, or is of such a nature, that a reasonable person under the same circumstances would clearly understand the information to be confidential. Confidential Information of Customer includes Customer Content. Confidential Information does not include information that (i) is or becomes generally publicly available through no fault of the receiving Party, (ii) was known to the receiving Party, free of any confidentiality obligations, before its disclosure by the disclosing Party, (iii) becomes known to the receiving Party, free of any confidentiality obligations, from a source other than the disclosing Party, or (iv) is independently developed by the receiving Party without use of or reference to the Confidential Information, as demonstrated by documents and other competent evidence in the receiving Party’s possession.
    8. “Customer Content” means all files, content (including audio, video, text, or images), and data (including Personal Data), belonging to or controlled by the Customer that is uploaded into the Products and Services or otherwise provided to Showpad for processing pursuant to the Agreement.
    9. “Customer” means the entity entering the Agreement with Showpad and identified in the Sales Order, including, as applicable, Customer’s Affiliates.
    10. “Documentation” means written technical and usage documentation about the Products and Services published by Showpad.
    11. “Fees” means the fees payable for the Products and Services specified in the Sales Order.
    12. “Input(s)” means Customer Content provided, uploaded, or otherwise made available by or on behalf of Customer to the Products and Services for Processing using AI Features for the purpose of generating Outputs.
    13. “Output(s)” means the results, content, or other materials generated by the AI Features in the Products and Services, and provided to Customer based on the Input(s).
    14. “Party” means Showpad or Customer, as applicable.
    15. “Personal Data” means information, taken alone or in combination with other data, which may be used to identify, directly or indirectly, a specific individual.
    16. “Products and Services” means the Showpad Platform and Professional Services set out in the Sales Order.
    17. “Professional Services” means any consulting, training, implementation, or technical support services provided by Showpad to Customer, as set out in the Sales Order.
    18. “Sales Order” means the sales order form, statement of work, or other written document detailing the Products and Services being procured by Customer, and which references this MSA.
    19. “Sensitive Personal Information” means information of a sensitive nature, including without limitation, personal financial and financial account information, sexual orientation, personal medical or health information, personal information of children under the age of 13, personal education records, and social security, national identity, national insurance, and similar personal identifiers. Where specific privacy or data protection laws apply (e.g., the General Data Protection Regulation (GDPR), the Gramm-Leach-Bliley Act (GLB), Health Insurance Portability and Accountability Act of 1996 (HIPAA), US Children’s Online Privacy Protection Act (COPPA), Family Educational Rights and Privacy Act (FERPA)) and those laws define Sensitive Personal Information or a similar term (e.g., “Sensitive Personal Data” or ”Protected Health Information”), Sensitive Personal Information will adopt the meaning from the applicable law or regulation.
    20. “Showpad” means one of the following: (i) Showpad, Inc., with offices in Chicago, Illinois, USA (for customers located in North America, South America, Australia, or New Zealand); or (ii) Showpad NV with offices in Ghent, Belgium (for customers located anywhere else in the world).
    21. “Showpad Platform” means the technology and software as described in Section 1.1.
    22. “Subscription Term” means the duration of the subscription for Products and Services, as stated in the Sales Order, and modified by any applicable extension or early termination.
    23. “Taxes” means any local, state, provincial, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or other governmental charges or duties resulting from the Agreement, excluding income taxes on Showpad’s revenue.
    24. “Third-Party Product(s)” means any product, platform, or service not developed by Showpad that enhances, manipulates, integrates with, interacts with, interoperates with, or adds functionality to the Showpad Platform or Customer Content. Third-Party Products may include public APIs, stand-alone software, or hardware. Third-Party Products may be obtained directly from the developer or through a reseller. Showpad may act as a reseller for some Third-Party Products.

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