Medallia publishes two sets of customer contract terms. The Medallia Master Subscription Agreement (MSA) appears in the Medallia Agile Research documentation under the title “Terms of Use” and is headed “last updated: April 2022”. It describes itself as effective as of the date it is published and made between Medallia, Inc. and the party that uses “Medallia Products”, which it defines as Medallia’s experience management products.[1] The Medallia Concierge Terms and Conditions are a separate set of General Terms and Conditions for the Concierge messaging product, headed “Last Edited: March 22, 2021”, and written in the name of Zingle, the company whose text messaging platform Concierge uses.[2] This article summarises both, and notes two other published documents that are not customer licence terms.
Editions
Neither document defines editions. The MSA says that it “does not itself obligate the parties to purchase or provide subscriptions to Medallia Products or Professional Services.” Obligations are documented in Orders that describe the product or services scope and the fees.[1] The Concierge terms refer to an Order that sets “the level of Service, the Subscription Term, Fees and other charges and any other parameters governing the use of the Service,” and refer elsewhere to a Developer Plan, a Trial Plan and a Paid Plan.[2] The MSA also contains one named free offering, the Agile Research Forever Free subscription, covered in Agile Research, Digital Feedback and DXA subscriptions.
Metrics
The MSA names no metric; usage is “the usage provided in a trial offering or Order.” The Concierge terms name two.
An Authorized User is the customer, its Affiliates, and its and their employees, agents, contractors, consultants, suppliers or other individuals authorized to interact with the Service, “subject to any imitations [sic] set forth in an Order.” Consumers, meaning the customer’s end users who use the Service to communicate with it, are not Authorized Users.[2] Users may not share credentials, but an Authorized User’s access “may be transferred from one individual to another” if the original user is removed, no longer requires access or is no longer permitted access.[2] Catalog row: Authorized User (Concierge).
A Communication is an interaction between an Authorized User and a Consumer by text message through a phone number supplied by Zingle or through a converted landline number.[2] Plans carry a monthly SMS message maximum, and Exhibit A sets overage rates per message by country. Catalog row: SMS message (Concierge).
| Country | Overage per message in excess of the monthly maximum |
|---|---|
| United States, Canada, China, Malaysia, United Kingdom | $0.04 |
| Guatemala, Mexico, Puerto Rico, Singapore | $0.05 |
| Australia, Chile, Hong Kong | $0.06 |
| Switzerland | $0.07 |
| France, Spain | $0.08 |
| Austria, Germany | $0.09 |
Exhibit B prices extra messages: an extra 1,000 messages per month costs $35 per month.[2] These figures are those printed in the 2021 version and may differ from current Orders.
Counting / floors
Use restrictions
Under the MSA the customer may not copy, modify, distribute, sell or lease any part of the Medallia Products or included software, or reverse engineer it. It may not use the products to infringe intellectual property rights or commit unlawful activity, and may not “provide, make available to, or permit individuals other than Customer’s authorized users, to use or access the Medallia Products, in whole or in part.” Access is for internal business purposes only.[1] The Concierge terms limit use to the customer’s “own internal business purposes (which includes interacting with Consumers)” and prohibit sublicensing, selling, leasing or otherwise making the Service available to third parties other than Authorized Users and Consumers. They also prohibit using the materials to create or enhance a competitive offering, and uploading or storing Non-Public Personal Information such as financial account or social security numbers.[2]
The MSA adds data restrictions: unless approved by Medallia’s data protection attorneys, the customer must not configure Medallia Products to collect bank account numbers, payment card information, government identification numbers or sensitive personal information such as health or religious beliefs. Protected Health Information is excepted where the customer has signed a Business Associate Agreement.[1]
Scope of Use, overage and floors
The Concierge terms contain the clearest overage mechanics in Medallia’s published documents. The customer must “promptly report to Zingle any actual use in excess of the permitted Scope of Use.” Zingle may monitor use, and “may immediately invoice, and Customer shall immediately pay, any fees for any usage in excess of the applicable Scope of Use,” accruing from the date the excess use began. A finding of under-utilization gives no fee reduction.[2] If monthly usage exceeds the permitted amount in the Order, Zingle may charge overage at the Exhibit A rates, payable monthly in arrears.[2] The customer may expand its Scope of Use by addendum or additional Order, but “shall not be entitled to reduce the scope of use of the Service during a Subscription Term or Renewal Term.”[2] Catalog rows: Concierge Scope of Use expansion and Concierge Scope of Use can expand but not shrink.
The MSA takes a gentler route for excess usage: if a customer exceeds the usage provided in a trial offering or Order, Medallia will either work with the customer to execute an Order for the excess usage or curtail access.[1]
Payment and renewal
- MSA. Fees are stated in the Order, or in the Billing tab if a plan is bought through the Medallia website. They are “non-cancelable and non-refundable other than as explicitly stated in this Agreement.” Taxes are payable by the customer.[1]
- Concierge. Fees are due within 30 days of invoice, late fees accrue at the lesser of 2 percent per month or the legal maximum, and a purchase order is for administrative convenience only. Purchases are non-cancelable and fees non-refundable. Fees for the first year are due on the Order’s effective date. Renewal fees are invoiced about 60 days before each Renewal Term, with pricing changes shown on that invoice.[2] The Subscription Term is whatever the Order says, or one year if the Order sets none.[2] Catalog row: Concierge Subscription Term and renewal.
Term, suspension and data export
The MSA runs from its effective date through the later of the last day of a trial or the last-expiring Order or subscription. Either party may terminate on 30 days for an uncured material breach, and a customer with a monthly subscription may terminate effective the following month.[1] After termination, customers under an Order Form can download customer feedback in a standard flat file format for at least 30 days, and Medallia removes all Customer Data within 60 days after that period.[1] Catalog row: Customer data transfer period. Under the Concierge terms, Zingle may suspend with immediate effect if an account is 30 days or more overdue or if the customer exceeds or violates use restrictions in the Order Form, and the customer can download its data during the term and for up to 30 days afterwards.[2]
Virtualization & partitioning
The MSA is for hosted services and has no virtualization or partitioning terms. Both documents restrict who may use the products. An affiliate that is not covered by the Order’s definition of the customer or its authorised users should be added to the Order before it uses Medallia. The Concierge terms include Affiliates among Authorized Users, while the MSA refers only to “authorized users.”[1][2] Neither document permits use by third-party outsourcers beyond that, so an outsourcer’s staff need to fit the Authorized User definition.
Cloud / BYOL
There is no BYOL programme. For federal customers the GovCloud list records Concierge as not available on Medallia GovCloud.[6] Concierge assignment is restricted: the customer may not assign or transfer the agreement, including through merger, consolidation or sale of assets, without Zingle’s prior written consent, while Zingle may assign to an affiliate or successor.[2] The MSA says neither the agreement nor any Order may be assigned without written consent, not to be unreasonably withheld or delayed.[1]
Programs
- Order and MSA precedence. An explicit conflict is resolved in favour of the Order, then the MSA, and terms in a customer purchase order are “null and void.” Catalog row: Order and Master Subscription Agreement precedence.[1]
- Audit. The customer may audit Medallia’s performance no more than once a year. Medallia supplies summary audit reports on request and permits a customer audit of its processing of Customer Data after a Security Incident or on a data protection authority’s instruction, with at least 30 days’ notice except in those cases, and onsite audits limited to two business days.[1] The MSA text reviewed gives Medallia no equivalent right to audit the customer’s usage. The Concierge terms instead let Zingle monitor use and invoice excess.[2]
- Indemnity and liability. Medallia indemnifies for third-party claims that its products infringe patents, copyrights or trademarks or misappropriate trade secrets, subject to exclusions, and for data breaches caused by its breach or the gross negligence or wilful misconduct of its personnel. Liability of either party is capped at fees paid or payable for the 12 months before the claim, with exceptions for gross negligence, wilful misconduct and unpaid fees.[1] The Concierge terms cap liability at fees paid or payable in the 12 months before the incident.[2]
- Governing law. MSA disputes are settled by International Chamber of Commerce arbitration in London in English under the law of England and Wales. Concierge terms are governed by California law, with exclusive jurisdiction in the state or federal courts in San Diego County, and a one-year limit for bringing claims.[1][2]
- Change control. Medallia may modify the MSA at any time by publishing an updated version online, and continued use after posting constitutes binding acceptance.[1] The Concierge terms let Zingle modify terms and pricing with notice, and paid-plan customers have 30 days to object.[2]
Out of scope
- Website Terms of Use. The medallia.com terms govern site use, grant a right to use content for informational purposes and cap Medallia’s liability to the site user at US$100. They state that a separate written agreement for the Medallia services prevails over them.[3]
- Purchase Order Terms and Conditions. These are the terms on which Medallia buys goods and services from vendors, with Medallia as the buyer, and are not customer licence terms.[4]
- Concierge pricing today. The 2021 terms are the version published. Current plan prices come from the Order. Medallia’s Concierge product page does not list prices.[5]
- Security exhibit. Attachment A to the MSA lists security measures and is not licensing.