Master Services Agreement
Last Updated: November 24, 2025
SAAS MASTER SERVICES AGREEMENT
This SaaS Master Services Agreement (together with the additional terms set forth below, “this Agreement” or “Agreement”), effective as of the date of last signature on the SaaS Master Services Agreement unless otherwise specified (“Effective Date”), is entered into by and between the entity identified as Customer below (“Customer,” “you,” or “your”) and Sutro Software Inc, a Delaware corporation, with a place of business at 66 Franklin Street, Suite 300, Oakland, CA 94607 (“Company,” “Sutro,” “we,” “our,” or “us”). Individually, both Customer and Company are a “Party” and together they are the “Parties.” “This Agreement” means this SaaS Master Services Agreement, any schedules, exhibits, addendums, and other attachments incorporated herein, as well as Sutro’s Terms of Service and Privacy Policy found at https://www.withsutro.com/, each of which are hereby incorporated by reference.
SERVICES
Services. Company will provide Customer with access to Sutro’s APIs and corresponding documentation (“Sutro Services”). During the Term and subject to Customer’s compliance with this Agreement, Company grants Customer the non-exclusive, non-transferable, non-assignable, and limited right to use the Sutro Services for Customer’s internal business purposes (including for the benefit of End Users (as defined in the Service Addendum)) in accordance with the terms of this Agreement. Customer may only use the Sutro Services for the Approved Use Case(s) listed in Section (A) on the attached Exhibit A, Order Form, and Company may immediately suspend, terminate, or modify fees—in its sole but reasonable discretion—in the event Customer violates the foregoing.
Service Levels. Company shall provide the Sutro Services in accordance with the Service Level Agreement set forth in Exhibit A. In all instances where service credits are available, such service credits shall be the sole remedy for a breach of this Agreement relating to the subject matter covered by such service credit. Any applicable service credits will be credited against amounts subsequently owed by Customer under this Agreement, or upon Customer’s request, promptly refunded to Customer.
Rights Reserved. All right, title, and interest—including all intellectual and proprietary rights—in and to the Sutro Services, and all Company service marks, trademarks, trade names, logos, (“Marks” as per Section 9) and any modifications to the foregoing will remain in possession of Company. No right or implied license or right of any kind is granted to Customer regarding the Sutro Services.
Restrictions. Customer shall not lease, license, sell, sublicense or otherwise transfer its access to or use of the Sutro Services. In addition, Customer shall not modify, create derivative works of, or attempt to decipher, decompile, disassemble or reverse engineer the Sutro Services. With the exception of Sections 9.1 and 9.7, nothing in this Agreement confers on either Party any right to use the other Party’s Marks. All use of such Marks by either Party will inure to the benefit of the owner of such Marks, use of which will be subject to specifications controlled by the owner.
FEES AND PAYMENT TERMS
Invoicing. Company shall have the right to issue invoices for the Sutro Services. All such invoices will clearly describe the amounts owed and any applicable credits.
Services Fees. For the Sutro Services provided under this Agreement, Customer will pay Company the fees (“Fees”) in the amounts set forth above in Section (B) on the attached Exhibit A, Order Form. On the first day of each month (“Due Date”), Company will automatically debit Customer’s bank account on file for any Monthly Platform Fees, including the Minimum API Usage Fee for that month, as well as any API Usage Fees accrued in the previous month. Implementation Fees will be automatically debited 30 days following the Effective Date. Payments made are nonrefundable (unless required under Applicable Law), non-cancellable, and not subject to set-off. Customer shall pay all fees under this Agreement in United States currency, unless otherwise specified.
ACH Permission/Authorization. Customer hereby authorizes Company to debit funds from Customer’s designated account(s) to cover all Fees and other amounts owed by Customer in connection with this Agreement. If Customer changes its designated account(s), Customer shall notify Company of the change by emailing support@withsutro.com within three (3) days of making the change.
Late Fees. Customer will pay a late fee of 1.0% per month (not to exceed the maximum allowed under state law) plus all attorney’s fees and costs of collection on all balances not paid by the Due Date. Company, at its option, may suspend the Sutro Services, in whole or in part, if Company does not receive all undisputed amounts due and owing under this Agreement within ten (10) days after delivery of notice to Customer of the failure to pay such overdue balances.
Taxes. Customer will be responsible for all taxes associated with Sutro Services other than taxes based on Company’s net income.
Billing Disputes. If Customer believes, in good faith, that Company has billed Customer incorrectly, Customer must provide written notice to Company within sixty (60) days from the date of the first billing statement in which the alleged error appeared. Failure to timely dispute a billing statement within such sixty (60) days shall constitute Customer’s waiver of its right to dispute the alleged error, and Customer shall not be entitled to any adjustment or credit for that alleged error. Customer’s notice of a good faith dispute must describe with reasonable particularity the nature of the dispute and the disputed amount. Within thirty (30) days following its receipt of Customer’s dispute notice, Company shall notify Customer in writing as to whether it agrees with the dispute, and describe with reasonable particularity the reasons supporting any disagreement with the dispute. To the extent Company agrees with Customer’s dispute, Customer shall not be required to pay the agreed-on amount. To the extent Company disagrees with Customer’s dispute, the Parties promptly shall attempt to resolve the dispute in accordance with the terms set forth in Section 8 of this Agreement.
Fee Modification. After the Initial Term, and at the beginning of each Renewal Term thereafter, Company may adjust the fees applicable during the upcoming Renewal Term on written notice provided at least ninety (90) days prior to the end of the Initial Term or applicable Renewal Term, as the case may be. Company may pass-through, and Customer agrees to pay any increases in third party cost(s) without markup after providing notice to Customer. Such pass-through cost increases are not subject to a ninety (90) day advance written notice requirement.
NON-DISCLOSURE AND CONFIDENTIALITY
Disclosure. Either Company or Customer may disclose to the other Party certain Confidential Information of the Disclosing Party or of the Disclosing Party’s associated companies, distributors, licensors, suppliers, or customers. “Confidential Information” means any information that is of value to its owner and is treated as confidential, including trade secrets, technology, information pertaining to business operations, and strategies, and information pertaining to customers, pricing, and marketing. “Disclosing Party” refers to the Party disclosing Confidential Information, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the Party receiving any Confidential Information, whether such disclosure is received directly or through Recipient’s employees or agents.
Requirement of Confidentiality. The Recipient agrees: (a) not to disclose or otherwise make available Confidential Information received from the Disclosing Party to any third-party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose such Confidential Information to its affiliates, officers, employees, consultants and legal advisors for purposes of Section 3.2(b), and who have been notified of this restriction, and who are themselves bound by non-disclosure obligations that apply to such Confidential Information and that are at least as restrictive as those set forth in this Section 3; (b) to use Confidential Information only for the purposes of performing its obligations or as otherwise authorized under this Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of Confidential Information. Customer acknowledges that the Sutro Services are the Confidential Information of Company. The obligations in this Section 3 shall survive termination and continue for so long as the applicable information constitutes Confidential Information. Confidential Information shall not include information that: (i) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (ii) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (iii) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (iv) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
Compelled Disclosure. If the Recipient becomes legally compelled to disclose any Confidential Information, the Recipient shall provide: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Recipient remains required by law to disclose any Confidential Information, the Recipient shall disclose no more than that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, the Recipient is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
Customer Data; Data Use. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer by or through the Sutro Services, but does not include any data collected, downloaded or otherwise received, directly or indirectly, from any other user of the Sutro Services. Customer hereby grants to Company a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, and translate Customer Data to the extent reasonably required for the performance of Company’s obligations and the exercise of Company’s rights under this Agreement. Customer warrants to Company that Customer has the right to provide such Customer Data to Company in accordance with this Agreement. Additionally, Customer agrees that data derived by Company from Company’s performance of the Sutro Services or input by or feedback from Customer may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such uses (“De-identified Data”) may be used by Company for any lawful purpose both during and following the Term. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain: (a) any Confidential Information of Customer; (b) any information that identifies or can be reasonably used to identify an individual person; (c) any information that identifies or can be reasonably used to identify Customer or its affiliates and their suppliers; or (d) any information that identifies or can be reasonably used to identify any activities or behaviors of Customer.
LIMITED WARRANTY AND LIMITATION OF LIABILITY
Limited Warranty. Company will provide the Sutro Services in a manner consistent with reasonably applicable general industry standards and that the Sutro Services will perform substantially in accordance with the documentation provided by Customer under normal use and circumstances. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. THE SUTRO SERVICES ARE PROVIDED “AS IS.” EXCEPT FOR THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT AND THE SUTRO SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY DISCLAIMED BY COMPANY.
Exclusion of Damages. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 4.4, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD-PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Liability Cap. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 4.4, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Exceptions. The exclusions and limitations in Sections 4.2 and 4.3 shall not apply to: (a) damages or other liabilities arising out of or relating to a Party’s failure to comply with its obligations under Section 3 (Non-Disclosure and Confidentiality); (b) a Party’s obligations under Section 5 (Indemnification and Insurance); (c) a Party’s gross negligence, intentional misconduct or fraud; (d) a Party’s violation of Applicable Law; or (e) a Party’s violation of any representation or warranty made under the terms of this Agreement. “Applicable Law” means all applicable federal, state, and local laws, rules, regulations, and guidance, including, without limitation, those governing payment services, consumer protections, privacy, and data security.
INDEMNIFICATION AND INSURANCE
Company Indemnification. Company shall defend Customer and its officers, directors, employees, agents, successors and permitted assigns against any third-party claim, suit, action, or proceeding (each, an “Action”) based on a claim that Customer’s receipt or use of the Sutro Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of a third-party, and shall pay all settlements entered into and damages awarded against Customer to the extent based on such an Action; provided, however, that Company shall have no obligations under this Section 5.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications, or other materials provided by Customer to Company; (b) use of the Sutro Services in combination with any materials or equipment not supplied to Customer by Company or specified by Company in writing; or (c) any modifications or changes made to the Sutro Services by or on behalf of any person or entity other than Company. If the Sutro Services, or any part thereof, become, or in the opinion of Company may become, the subject of a claim of infringement or misappropriation, Company may, at its option: (i) procure for Customer the right to use such Sutro Services free of any related liability; (ii) replace or modify the Sutro Services to make them non-infringing; or (iii) terminate this Agreement and refund to Customer any portion of the fees prepaid by Customer for those particular Sutro Services.
Customer Indemnification. Customer shall indemnify, defend, and hold harmless Company, its officers, directors, employees, agents, affiliates, successors and permitted assigns against all Actions based on a claim that any information or materials provided by Customer (including Customer Data), or Company’s receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of a third-party, and shall pay all settlements entered into and damages awarded against Company to the extent based on such an Action. Customer shall also indemnify, defend, and hold harmless Company, its officers, directors, employees, agents, affiliates, successors and permitted assigns, and undertake to defend and hold them harmless from and against losses incurred in connection with any Action arising from, on account of, or in connection with, directly or indirectly, any of the following: any actual or alleged (a) breach or default under this Agreement; (b) violation of Applicable Law; (c) negligence, fraud, error (whether negligent or not), omission or misconduct; and (d) failure to perform any of its obligations to any person. Customer further agrees to reimburse Company upon demand for all legal and other costs and expenses (including expenses related to investigation, settlement, compromise, or satisfaction) incurred by Company in connection with any of the foregoing.
Indemnification Procedures. The Party seeking indemnification hereunder shall promptly notify the indemnifying Party in writing of any Action and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying Party shall not settle any Action in a manner that adversely affects the rights of the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party’s failure to perform any obligations under this Section 5.3 shall not relieve the indemnifying Party of its obligations under this Section 5.3 except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified Party may participate in and observe the proceedings at its own cost and expense.
TERM
Initial Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect for the initial term set forth on the signature page (“Initial Term”), unless earlier terminated as provided for below.
Renewal Terms. After the Initial Term, this Agreement shall automatically renew for successive periods as set forth on the signature page or, if no period is set, for consecutive twelve (12) - month terms (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either Party provides written notice to the other Party at least 90 days prior to the end of the then-current Initial Term or Renewal Term of its intent to not renew this Agreement.
TERMINATION; SUSPENSION
For Cause. Without prejudice to any other remedies and in addition to any other termination rights herein, the Parties shall have the right to terminate this Agreement as provided below:
By either Party if the other Party commits a material breach of this Agreement and such breach remains uncured ten (10) days after written notice of such breach is delivered to such other Party including the failure to pay any fees due to Company; or
By either Party if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium, or similar laws;
By Company if: (i) Customer fail to pay any Fees or any other amounts owed under this Agreement within thirty (30) days of receiving notice from Company that payment is owed; (ii) Customer violates Applicable Law; or (iii) Customer’s use of the Sutro Services poses unacceptable risk, including but not limited to financial or data security risk, to Company and/or its financial institution partner(s) in Company’s and/or its financial institution partners’ sole discretion; or
By Customer if: (i) Company violates Applicable Law; or (iii) Customer’s use of the Sutro Services poses unacceptable risk, including but not limited to financial or data security risk, to Customer and/or its partner(s) in Customer’s and/or its partners’ sole discretion.
Suspension. In addition, Company may immediately suspend the Sutro Services in the event it determines or believes that continued provision of the Sutro Services may do harm to Company or its networks or systems or reputation or subject Company to liability.
Effect. Upon termination of this Agreement for any reason, all rights and licenses granted by Company hereunder to Customer will immediately cease and Customer shall: (a) immediately stop using the Sutro Services to accept new transactions; and (b) cooperate with Company to complete or cancel all pending transactions. Upon termination of this Agreement for any reason, each Party shall remove the other Party’s Marks from its website(s), applications(s), and materials.
Survival. Termination of this Agreement will not affect the provisions regarding Company’s or Customer’s treatment of Confidential Information, provisions relating to the payments of amounts due, indemnification provisions, provisions limiting or disclaiming Company’s liability, or any other terms which by their nature should survive, which provisions will survive such termination.
Ownership Transfer upon Business Closure. In the event that Company permanently ceases operations, all rights, title, and interest in the deliverables and materials produced under this agreement shall be automatically transferred to Customer. This transfer includes all intellectual property rights, including but not limited to copyrights, trademarks, and any other proprietary rights related to the deliverables. Company agrees to provide Customer with all necessary documentation and materials to facilitate the transfer of ownership.
DISPUTE RESOLUTION
Negotiation. Except as provided in Section 8.3, if any dispute, controversy, or claim between the Parties arises out of or relates to this Agreement, or the alleged breach thereof, either Party may, by written notice, request a meeting to resolve the dispute, controversy, or claim. Such request must contain the requesting Party’s availability to meet. Unless otherwise agreed to by both Parties, the meeting shall occur within twenty-one (21) days, and appropriate decision makers from both Parties must attend in a good faith effort to resolve the issue.
Arbitration. If the procedures outlined in Section 8.1 of this Agreement do not resolve dispute, controversy, or claim, the Parties agree that the matter shall be finally settled by arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules by a single arbitrator appointed by such Rules. The arbitration shall take place in Oakland, CA. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Exceptions. Any dispute, controversy, or claim related to: (a) injunctive or equitable relief under Section 9.15; (b) intellectual property rights; or (c) payment or collection of fees not timely disputed are not subject to Sections 8.1 and 8.2. Such matters may be brought in any competent court.
GENERAL
Marks. Solely in connection with the activities contemplated by this Agreement, each Party grants the other Party a limited, non-exclusive, non-transferable, non-sublicensable, revocable license for the Term of this Agreement to use and display the other Party’s trade names, trademarks, logos, and domain names (“Marks”) as follows: (a) Customer may use Company’s Marks solely to identify Company as its provider of the Sutro Services; and (b) Company may use Customer’s Marks solely to identify Customer as a user of the Sutro Services. Customer may only use Company’s Marks in accordance with any usage guidelines communicated to the Customer by Company and this Agreement. Neither Party shall misstate or incorrectly describe the nature of the relationship between Customer and Company and the services provided by each Party. Either Party may revoke the other Party’s ability to use such Party’s Marks in its sole discretion upon written notice.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. The Parties agree that Delaware law bears a reasonable relationship to one or both Parties and this Agreement.
Conflicting Terms. Notwithstanding the content of any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this SaaS Master Services Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
Modifications. From time to time, Company may modify this Agreement. Company will use commercially reasonable efforts to notify Customer of the modifications and the effective date of such modifications through communications via Customer’s account, email, or other means including those identified in Section 9.5. If, in Customer’s reasonable discretion, the modifications have a materially adverse effect on Customer and are not the result of: (a) changes necessitated by Company’s third-party vendors and service providers; (b) Applicable Law; or (c) other applicable security, regulatory, or payment network requirements, then Customer may terminate this Agreement without penalty. To exercise this right, Customer must provide Company with notice of its objection and termination within thirty (30) days after Company provides notice of the modifications.
Notice. Unless otherwise specified herein, all communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered: (a) by hand; (b) by email; (c) by registered or certified mail, postage prepaid, return receipt requested; or (d) by a nationally recognized overnight courier service to the respective addresses set forth on the signature page, as may be amended by either Party by written notice to the other Party in accordance with this Section 9.5. For purposes of this Section, Company’s email address is support@withsutro.com, and Customer’s “Email Address for Notice” identified in Section (A) (Customer Details) above.
Assignment. This Agreement is not assignable or transferable by Customer except with Company’s prior written consent; provided, however, that Customer may, upon prior written notice to Company, transfer and assign its rights and obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. If such a transfer or assignment is made in favor of a direct competitor of Company, then Company may terminate this Agreement upon written notice to Customer. Company may freely assign this Agreement subject to Customer’s consent which will not be unreasonably withheld or delayed.
Publicity. During the term of this Agreement: (a) Customer may, in its sole discretion, participate in case studies and other similar marketing efforts reasonably requested by Company; (b) Company may disclose that Customer is a customer to third-parties; and (c) Company may include on and in Company’s website, case studies, marketing materials, and conference presentations and other speaking opportunities, Customer’s testimonials and other feedback regarding the Sutro Services, name, website URL, use case, and logo and other Marks. Upon written request from Customer, Company will promptly stop making the disclosure and use described in the foregoing sentence except to the extent already included in any then-existing materials.
Feedback. You may voluntarily provide suggestions or ideas for improvements or modifications to the Sutro Services (“Feedback”). Nothing in this Agreement will prohibit Company from using, profiting from, disclosing, publishing, or otherwise exploiting any Feedback, nor create any obligation to compensate you for the provision of Feedback.
Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the Parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one Party than against another.
Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party, including under Section 8.2, arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Force Majeure. Neither Party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, act of God, war, natural disaster, governmental regulations, terrorism, communication or utility failures, or casualties or the failures or acts of third-parties.
Equitable Relief. Each Party acknowledges that a breach by a Party of Section 1.4 (Restrictions) or Section 3 (Non-Disclosure and Confidentiality) may cause the non-breaching Party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non breaching Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the Parties hereto or constitute or be deemed to constitute one Party as agent of the other, for any purpose whatsoever, and neither Party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
SCHEDULE 1
Service Addendum
Using the Sutro Services
Sutro Services. Sutro offers services through Sutro’s application programming interfaces (“Sutro API”), and related technical, business, and support services, each as may be modified or updated (together, the “Sutro Services”). An end user that has enrolled or created an account on Customer’s Application is referred to as an “End User.” The Sutro Services allow you to manage your End Users’ and your own experience on your platform, website, and/or application (each, an “Application”). The products and services that you provide through your Application, including the Sutro Services, are referred to herein as “Your Services.” It is your sole responsibility to clearly explain to your End Users the nature of Your Services and Sutro’s role in the provision of such services. Sutro may terminate or suspend this Agreement or your access to the Sutro Services at any time in its reasonable discretion upon notice to you. We may amend this Agreement at any time by providing notice to you. Notice may be provided to you on any website maintained by Sutro, by email, or by any other reasonable means including those identified in Section 9.5 of the SaaS Master Services Agreement. The amended Agreement is effective when posted or as of the date indicated in the notice to you, and your continued use of the Sutro Services constitutes your acceptance of any amended Agreement.
Eligibility for Sutro Services. In order to use the Sutro Services, you must: (a) be a legally organized business entity or organization in good standing, with a verifiable physical address in your country of registration.; and (b) sign the SaaS Master Services Agreement (“MSA”) and all attachments to the MSA, as they may be updated from time to time. In the event of a conflict between this Schedule 1 and the MSA, the MSA shall supersede and control. You represent and warrant that you are eligible to use the Sutro Services.
Required Information About Your Business. When you register to use the Sutro Services, we will ask you for information about your business, including but not limited to: business name, address, phone number, email address, tax identification number, website address, business model, and any supporting documentation that we deem necessary in our reasonable discretion (such as copies of government-issued identification, proof of licensing, proof of financial condition, business policies, and other business or identification documentation). We will also ask you for information about your beneficial owner(s), controller, and authorized representative, including but not limited to: name, date of birth, tax identification number or equivalent, and any supporting documentation that we deem necessary in our reasonable discretion. Your ability to use the Sutro Services is subject to our satisfactory review of the information that you provide and our approval. You represent and warrant that any information that you provide to us about your business and beneficial owner(s) is accurate and complete and that you will keep this information up to date at all times. Failure to do so may result in termination of this Agreement by Sutro.
Routine Business Operations Reviews. Sutro may request, and you agree to provide, information about your business, operations, funds flows, and/or integration with the Sutro Services. Sutro reserves the right to reassess your eligibility for the Sutro Services at any time. Sutro may immediately suspend or terminate the provision of any of the Sutro Services in its reasonable discretion, including in the event that Sutro determines, in our sole discretion, and based on any of the review processes described in this Agreement, that you have become ineligible for any of the Sutro Services.
Prohibited Uses. You are prohibited from:
using the Sutro Services for any fraudulent, unlawful, deceptive, or abusive purposes; including, where applicable, in violation of the Telemarketing Sales Rule (“TSR”);
using the Sutro Services in any manner intended to harm an End User, Sutro, or any third-party;
circumventing Sutro’s intended limitations for any feature of the Sutro Services as communicated to you by Sutro;
using the Sutro Services in a manner inconsistent with any developer documentation, integration guidance, or other technical, policy, or other requirements communicated to you by Sutro or posted on Sutro’s website, each as may be updated from time to time;
using the Sutro Services in violation of any guidance regarding restricted activities communicated to you by Sutro;
using the Sutro Services to conduct transactions for personal, family, or household purposes;
facilitating transactions for a third-party that is not your legitimate End User;
replicating and/or reselling the Sutro Services by offering and/or enabling any third-party to access the Sutro Services through your integration;
making available or using the Sutro Services for the benefit of any country, organization, entity, or person embargoed or blocked by any government, including those on the sanctions lists maintained by the U.S. Office of Foreign Asset Control (OFAC);
engaging in transactions related to or in furtherance of the following activities (“Prohibited Activities”):
sale or purchase of illegal goods, including but not limited to stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety;
illegal services, including but not limited to counterfeit services, illegal gambling, Ponzi or pyramid schemes, and money laundering;
promotion of hate, violence, harassment, or abuse; and
any other activities that violate Applicable Law; or
attempting any of the foregoing.
Compliance. You represent and warrant that you will only use the Sutro Services for lawful and legitimate purposes and that you will at all times comply and conduct your business in compliance with: (a) Applicable Law (all applicable federal, state, and local laws, rules, regulations, and guidance, including, without limitation, those governing payment services, consumer protections, privacy, and data security); and (b) this Agreement.
Integration and End User Experience Requirements
API Credentials. In order to access and use the Sutro API, Sutro will provide you with credentials in the form of a key and secret specific to you (“API Credentials”) via email, or other mutually agreed communication medium. The date on which API credentials are provided is the Go-Live Date. The API Credentials are Confidential Information and the property of Sutro. You are responsible for maintaining commercially reasonable security and control of your API Credentials. You are prohibited from selling, transferring, sublicensing, or disclosing the API Credentials to any third-party, other than you may disclose the API credentials to your third-party service providers who need them to perform services for you, if applicable. You are responsible for ensuring that your employees, contractors, and agents, and third-party service providers comply with all security, disclosure, and confidentiality requirements set out in this Agreement. You are responsible for any activity conducted using your API Credentials, regardless of whether you authorized such activity. You must notify Sutro immediately at support@withsutro.com if you believe that your API Credentials have been compromised. Sutro may immediately revoke your API Credentials if you breach this Agreement.
Going Live. In order to provide the Sutro Services in your Application (“Go Live”), your Application must be developed, used, and provided in compliance with this Agreement and Applicable Law. You are solely responsible for your integration costs and expenses. Sutro may require you to modify your Sutro API integration and/or Application user experience if it does not comply with all provided requirements. You understand and agree that approval to Go Live is granted by Sutro in its sole discretion.
Your Agreement with End Users. You must have a written agreement with End Users (“Your Terms”) in order to provide the Sutro Services to them. Your Terms must: (a) comply with Applicable Law and accepted industry norms and practices; (b) be presented to your End Users in writing, via online disclosure; (b) accepted electronically in a manner that complies with Applicable Law, including but not limited to the Electronic Disclosures in Global and National Commerce Act (“E-SIGN Act”); (c) and be accepted in an auditable manner that complies with Applicable Law including the E-SIGN Act. Your Terms must allow you to comply with all requirements of this Agreement. You must also take commercially reasonable steps to ensure that End User activities using the Sutro Services do not violate any Applicable Law or this Agreement. You must notify Sutro immediately if you detect illegal, fraudulent, deceptive, or otherwise suspicious activity associated with an End User at support@withsutro.com.
Express Consent from End Users. You must obtain an End User’s express written consent prior to conducting any activity for and/or on behalf of the End User in connection with the Sutro Services, including but not limited to: (a) collecting any End User personal data; (b) sharing End User’s data with Sutro for the purpose of enabling the Sutro Services, including the provisioning and support of an End User, if applicable; (c) using any End User personal data for a purpose not previously disclosed or for which the End User has withdrawn consent; (d) conducting any activity for which the End User has not given you express written consent or for which the End User has withdrawn consent; or (e) attempting any of the above.
Notifications to End Users. You are solely responsible for providing all notifications, disclosures, or communications required under this Agreement or by Applicable Law to End Users related to their use of the Sutro Services. Such notifications, disclosures, and communications must be clear, conspicuous, easily understood, and provided in a manner required by Applicable Law.
Clear Disclosures to End Users. You are solely responsible for providing disclosures to End Users regarding their use of the Sutro Services, including, but not limited to:
Fees. Any fees charged in your Application must be appropriately disclosed to End Users prior to the fees being charged. Fees and payment terms must be clearly communicated to End Users and you must obtain the End User’s express consent prior to charging the End User any fees.
Other Disclosures. In addition to the foregoing, you must provide End Users with any other disclosures, notices, or other documents or information required under Applicable Law.
End User Support. You are solely responsible for providing support for Your Services to End Users. You must clearly disclose your End User support policy and publish your End User support contact information in an easily accessible manner within any Application through which you offer Your Services.
Dispute Resolution for End Users. You are solely responsible for resolving all End User disputes related to Your Services (“End User Disputes”), including any End User Dispute communicated by an End User to Sutro. Sutro has no obligation, nor any liability associated with your End User Dispute resolution policies and procedures. You agree to provide Sutro with any requested information regarding the status and/or resolution of an End User Dispute. Sutro has the right but no obligation to provide support to an End User that contacts Sutro regarding an End User Dispute, and in such event, you must promptly (not to exceed two (2) business days from request) provide Sutro with any information Sutro reasonably requests for the purposes of assisting the End User.
Accuracy of End User Data Provided to Sutro. You are solely responsible for providing accurate and complete End User data as required or requested by Sutro for the purposes of providing you the Sutro Services. Sutro may require you to collect and provide additional information to enable the Sutro Services for an End User and you agree to provide such information. You must use commercially reasonable efforts to verify that any End User data that you provide to Sutro is accurate and complete.
End User Eligibility. End Users must reside in a jurisdiction where your services are legally offered. You agree that you will not enroll or attempt to enroll any End User who does not meet these eligibility criteria, and you will implement appropriate technical and operational measures to ensure compliance.
Required Disclosures for End Users. Your Terms must clearly disclose the following: (a) an End User must accept the Sutro Terms of Service and Sutro Privacy Policy; (b) you will provide all necessary End User notifications to the End User; and (c) you will provide the End User with all necessary End User support for End User activity, including and dispute resolution. You must capture an End User’s written acceptance of Your Terms, the Sutro Terms of Service, and the Sutro Privacy Policy in an auditable manner and in compliance with Applicable Law, including but not limited to the E-SIGN Act prior to providing an End User and any related Sutro Services to that End User.
Other Required Disclosures. If requested by Sutro, you agree to promptly notify your End Users of any changes to the Sutro Terms of Service, the Sutro Privacy Policy, any service outages or other announcements regarding the Sutro Services, or provide any other information or disclosures as required by Applicable Law.
Termination of an End User. You understand and agree that Sutro may require you to terminate an End User’s ability to use Sutro if Sutro deems the End User inactive or dormant, or for any other reason specified in this Agreement. You acknowledge that if an End User owes you funds, you may not use the Sutro Services or Sutro’s network to recover those funds.
Sutro’s Relationship with End User. You acknowledge and agree that Sutro is your service provider and does not have a direct relationship with End Users. You further acknowledge and agree that Sutro may, in the future, have independent relationships with End Users even if such End Users originate through you. In the event an End User signs up with Sutro for services with Sutro and authorizes Sutro to retain and use such End User’s information and data, then you acknowledge and agree that Sutro may use and retain such End User data and information (even if provided originally by or through you) in accordance with its agreement with such End User and, notwithstanding anything to the contrary in this Agreement, to the extent permitted by Applicable Law. Sutro may continue to retain, store, and otherwise use such End User data as authorized by such End User, including following termination or expiration of this Agreement.
Audit. Sutro may audit, examine, and otherwise monitor your compliance with this Agreement and other applicable Sutro terms, agreements, or policies, and you agree to cooperate fully with any such audit. Within thirty (30) days of notice from Sutro, you will provide to Sutro or its third-party auditor (either, a “Sutro Auditor”) access to and assistance with: documents, records, reports, or other data, information, or materials compiled, maintained, or otherwise available to the extent related to your compliance and that is not prohibited from disclosure by Applicable Law. If a Sutro Auditor determines that you are not in compliance, you will be in material breach of this Agreement. You must take appropriate action to remedy the non-compliance and provide Sutro with evidence of Compliance within thirty (30) days of receiving notice of such non-compliance.
Privacy and Data Security
Your Privacy Policy. You must publish and comply with a privacy policy that is prominently displayed and readily accessible from every Application from which Your Services can be accessed. For example, if an End User can access Your Services from both a website and a mobile application, you must make your privacy policy available on both the website and in the mobile application. Your privacy policy must comply with Applicable Law and clearly explain what data you collect, how you will use it, how you will share it, and how you will store it.
Use of Data. You must obtain your End Users’ express consent to use their data for the purposes of providing Your Services, including the Sutro Services, to them. You understand and agree that you may only use data that you receive via the Sutro Services in accordance with this Agreement and Applicable Law. You are prohibited from selling, transferring, sublicensing, and/or assigning any interest in any data that you access or receive via the Sutro APIs and the Sutro Services. You acknowledge that you are solely responsible for your use of any End User data.
Data Security. Each Party is responsible for the security of all data in its possession or control and for its compliance with Applicable Law in connection with its data handling and management practices. Each Party is responsible for maintaining commercially reasonable data security controls to protect and secure data from unauthorized use, access, or disclosure. You agree to provide Sutro with any evidence to demonstrate your compliance with this section upon request by Sutro. You agree that Sutro may terminate your use of the Sutro Services in its sole discretion if Sutro determines that you or your Application pose an unacceptable security risk to Sutro, its platform, or its users.
EXHIBIT B
SERVICE LEVEL AGREEMENT
Service Levels
Subject to this Agreement and other applicable Sutro terms, agreements, or policies, Sutro will use commercially reasonable efforts to make the Sutro Services available at least 99.9% of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Sutro Services to meet the Availability Requirement. “Available” and “Availability” mean the Sutro Services are available for access and use by Customer over the Internet. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement: (a) access to or use of the Sutro Services by Customer or use of Customer’s access credentials, that does not strictly comply with the Agreement; (b) Customer’s delay in performing or failure to perform, any of its obligations under the Agreement; (c) Customer’s Internet connectivity; (d) Force Majeure event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility, or other matter not supplied by Sutro pursuant to this Agreement; (f) Scheduled Downtime; (g) issues or downtime resulting from the acts or omissions of third-parties, including financial institutions, or (h) disablement, suspension or termination of the Sutro Services pursuant to this Agreement. Neither will the Sutro Services be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer to access or use the Sutro Services that is due, in whole or in part, to any of these Exceptions. For the avoidance of doubt, the terms of this Exhibit A apply solely to the production-version of the API and corresponding Sutro Services and not to any development sandbox or any other environment, dashboards, reports, or similar services.
Service Level Failures and Remedies
In the event of a Service Level Failure, Sutro shall issue a credit to Customer in the amount set forth in the table below, measured as a percentage of the monthly fees for the Sutro Services due for the Service Period the Service Level Failure occurred (each a “Service Credit”).
Availability
Service Credit
99.00% - 100.00%
0%
97.00% - 98.99%
5%
95.00% - 96.99%
10%
90.00% - 94.99%
15%
< 90.00%
25%
Notwithstanding the foregoing, Sutro has no obligation to issue any Service Credit unless: (a) Customer reports the Service Failure to Company within twenty-four (24) hours after becoming aware of it; and (b) requests such Service Credit in writing within ten (10) days of the Service Level Failure. Additionally, in no event will a Service Credit for any Service Period exceed 25% percent of the total fees that would be payable for that Service Period if no Service Level Failure had occurred. Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 2 sets forth Sutro’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
Scheduled Downtime
Sutro will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Sutro Services between the hours of 11 pm and 6 am, Eastern Time; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Sutro Services (“Scheduled Downtime”).
Support SLA
Support Requests
Sutro will provide reasonable support services during regular business hours Monday through Friday, excluding holidays, from 12pm to 8pm Eastern Time. Support services are available via email tickets at support@withsutro.com.
Response Times
Sutro will use reasonable commercial efforts to respond to your support requests made via ticket within one (1) business day. Sutro will provide an estimated timeline for remedy within twelve (12) hours after initial response from Sutro.
Credit
Credits are calculated based on the service fee for the calendar month in which a response time failure occurs. If Sutro fails to meet a response time stated above, then you are entitled to a credit of 1% of the monthly service fee, and an additional 0.5% (one half of one percent) for each additional hour increment by which Sutro fails to meet the response time, up to a maximum of 10% of the monthly service fee.
Credit Limit
Customer must notify Sutro in writing within three (3) business days from the time of response time failure, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash. Sutro will only apply a credit to the month in which the incident occurred. Sutro’s blocking of data communications or other Service in accordance with its policies will not be deemed to be a failure of Sutro to provide adequate service levels under this Agreement.
Extraordinary Events
You are not entitled to any credits whatsoever resulting from Force Majeure events.
Credits are Sole and Exclusive Remedy
The credit remedies provided in this Support SLA are your sole and exclusive remedy for damages arising from Sutro’s violation of a service level for which credit is provided.
EXHIBIT C
DATA SHARING ADDENDUM
As part of the Sutro Services and subject to the terms of this Data Sharing Addendum, Sutro may make available certain permissioned non-public information (“NPI”) regarding End Users to Customer (“Data Sharing Services”). If there is a conflict between the Agreement and this Data Sharing Addendum, this Data Sharing Addendum shall govern and prevail.
End User Authorization
Customer is solely responsible for obtaining an End User’s authorization and prior express written consent and instructions for Sutro, as Customer’s service provider, to obtain and share such End User’s NPI with Customer. Similarly, Customer is solely responsible for obtaining an End User’s authorization and prior express written consent and instructions to provide End User data to Sutro for purposes of providing the Data Sharing Services. All such authorizations and consents shall be obtained in accordance with Applicable Laws, including but not limited to the FCRA and Gramm Leach Bliley Act (“GLBA”). Customer shall also use two-factor authentication (through text message or other industry standard means) to authenticate the End User providing the authorization and consent.
Data Sharing Subject to Customer obtaining appropriate authorization and consent from the applicable End User, Sutro shall obtain and make available certain NPI regarding such End User to the extent available to Sutro and subject to Applicable Law. Sutro shall only share End User permissioned NPI with Customer that the End User has consented and instructed Sutro to share. Sutro shall have the sole discretion in construing the scope of the End User’s written consent and instruction.
Customer is solely responsible for providing accurate and complete End User data as required or requested by Sutro for the purposes of providing the Data Sharing Services. Customer must use commercially reasonable efforts to verify that any End User data that Customer provides to Sutro is accurate and complete.
Compliance
Customer’s use of the Data Sharing Services and NPI shall comply with all Applicable Law and all corresponding rules, regulations, and administrative requirements thereof. Sutro may monitor Customer’s use of the Data Sharing Services and request related additional information in order to ensure compliance with Applicable Law, the Agreement, and other applicable Sutro terms, agreements, or policies. Customer shall be solely responsible for obtaining and maintaining records of express prior written consent and instructions from End Users authorizing Sutro to obtain their NPI and instructing Sutro to provide it to Customer. Customer further agrees to provide such records of End User written consent and instructions to Sutro when requested by Sutro. Additionally, Customer acknowledges and agrees that Sutro’s role in obtaining and transmitting NPI is limited to that of conduit, that it is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the FCRA, that the NPI provided is not a “consumer report” generated by Sutro as defined under the FCRA. Customer represents and warrants that it will not, and will not permit or enable any third-party to use the Data Sharing Services or NPI as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Data Sharing Services or NPI) such that the Data Sharing Services or NPI could be deemed “consumer reports” under the FCRA.
Changes
Sutro reserves the right to suspend, discontinue or modify the Data Sharing Services in its reasonable discretion as appropriate to comply with Applicable Law or manage risk.
Liability
Customer hereby indemnifies and holds Sutro harmless from all damages, losses and liabilities arising in connection with Customer’s use of the Data Sharing Services or use and collection of corresponding NPI. Notwithstanding anything in this Agreement to the contrary, no limitations or caps on liability shall apply to the foregoing indemnity or Customer’s breach of this Addendum.