PLEASE READ THIS AGREEMENT BEFORE USING SERVICE PROVIDERS SERVICES. BY ACCESSING OR USING SERVICE PROVIDER’S SOFTWARE OR SERVICES OFFERING, YOU (“Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR SERVICE PROVIDER’S SOFTWARE AS A SERVICE AGREEMENT, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
This Master Service Agreement (“Agreement”) is made by and between MFGx, LLC, a Delaware limited liability company (“Service Provider”) and the party receiving Services hereunder(“Customer”) and contains the terms and conditions under which Service Provider agrees to license use of Service Provider’s platform-as-a-service solution (the “Service(s)”) to Customer.
Definitions. The following terms shall have the meanings ascribed to them below:
1.1 “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
1.2 “Administrator” means each Customer employee, consultant, contractor, and agent designated by Customer to service as technical administrator of the Services on Customer’s behalf. Each Administrator must complete training and qualification requirements reasonably required by Service Provider.
1.3 “Customer Data” means, other than Quality Assurance Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. Customer data includes, features and functionality implemented by the Customer or Authorized User through the Services- such as custom schema, screens, dashboards, reports, documents, flows or other enhancements that are not embedded as system code.
1.4 “Documentation” means Service Provider’s user manuals, handbooks, and guides relating to the Services provided by Service Provider to Customer either electronically or in hard copy form, end user documentation relating to the Services that are available within the Service Provider KB support center.
1.5 “Initial Term” means the duration specified on the Order Form as the initial term, beginning on the Start Date unless otherwise set forth on the Order Form.
1.6 “Order Form” means a document pursuant to which Customer orders Services from Service Provider, in form designated by Service Provider form time to time.
1.7 “Platform” means the software platform provided as a Service to Customer.
1.8 “Quality Assurance Statistics” means data and information related to Customer’s use of the Services that is used by Service Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.9 “Renewal Term” means each successive renewal after the Initial Term. Each Renewal Term shall be equal in duration to the Initial Term, unless otherwise agreed upon as per Section 11.
1.10 “Service Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. Service Provider IP includes Quality Assurance Statistics and any information, data, or other content derived from Service Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
1.11 “Services” means the software-as-a-service offering and/or related services described in an Order Form.
1.12 “Service Tier” means the level of platform resources provided to a Customer, which has an impact on the volume of transactions and the effect of that volume on the overall performance of the Service provided.
1.13 “Source Code” means the human readable source code related to the Services.
1.14 “Start Date” the first date Customer receives an initial user ID for access to the Services.
1.15 “Subscription Fee” means an annualized fee that is paid for the use of, or access to the Services. A Subscription Fee must be paid prior to receiving the Services or access to Services described herein. Subscriptions must be paid annually and prior to the start of any Renewal Term.
1.16 “Term” means the Initial Term and each Renewal Term, as applicable.
1.17 “Third-Party Products” means any third-party products incorporated into the Service or otherwise made available by Service Provider to Customer.
1.18 “Updates” means the deployments made by Service Provider to the production environment or Customer’s instance of the Service.
1.19 “Host” means the infrastructure, or computer equipment on which the software is installed, which is maintained by Service Provider or its subcontractors.
1.20 “Other Services” means all technical and non-technical services performed or delivered by Service Provider under this Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the Services and the Maintenance Services. Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in a Proposal and mutually agreed to by the parties. All Other Services will be provided on a non-work for hire basis.
2. Access and Use:
2.1 Grant of License. Service Provider hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services and Documentation during the Term, solely for Customer’s internal use by Authorized Users. Service Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The access and use of Services may be modified as expressly agreed to in writing by the Parties, subject to any appropriate adjustment of the Fees payable hereunder.
2.2 Quality Assurance Statistics. Customer acknowledges that Service Provider may compile Quality Assurance Statistics based on Customer Data input into the Services. Customer agrees that Service Provider may (i) make Quality Assurance Statistics publicly available in compliance with applicable law, and (ii) use Quality Assurance Statistics to the extent and in the manner permitted under applicable law; provided that such Quality Assurance Statistics do not identify Customer.
2.3 Use Restrictions; Misuse. Customer shall not use the Services or Documentation for any purposes beyond the scope of the access granted in this Agreement, the Order Form and/or the Documentation (“Misuse”). Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to, commit Misuse. Misuse may include, for example and without limitation, to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. With information reasonably indicating Misuse, Service Provider may in its sole discretion suspend Services for further investigation of Misuse or immediately terminate this Agreement, in its sole discretion.
2.4 Reservation of Rights. Service Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Service Provider IP.
3. Service Levels and Support
3.1 Service Levels. Subject to the terms and conditions of this Agreement, Service Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels described at Service Level Agreement.
3.2 Support Services. Maintenance and support services are as made available by Service Provider, in its discretion. Enhanced support services and/or professional services may be available, and in such case, will be provided pursuant to a separate agreement. The Services include an integration/development platform enabling users to create their own unique applications and integrations. Service Provider is responsible only for providing access and availability to the overall Services platform, and is not responsible for supporting any applications or integrations or other works performed by or through the Services by Customer, its integration provider(s), or any other third party.
3.3 Updates. The timing of releases and product updates are at the sole discretion of Service Provider. Service Provider will automatically implement all updates and enhancements that are generally available to other Customers of the Services without additional charges.
4. Customer Responsibilities
4.1 General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer and/or utilizing any Customer access credentials, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users or others utilizing Customer access credentials, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
4.2 Third-Party Products. Service Provider may from time to time make Third-Party Products available to Customer, some of which may be identified in the applicable Order Form. Such Third-Party Products are subject to their own terms and conditions and applicable flow through provisions for which compliance is the sole responsibility of Customer. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. In addition, certain portions of the Services may be subject to open source licenses.
4.3 Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Service Provider
exercises no control over the content of the information transmitted by Customer or the Authorized Users through the Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.4 Unauthorized Use; False Information. Customer shall: (a) notify Service Provider immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Service Provider immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer or any Authorized User, and (c) not provide false identity information to gain access to or use the Services.
4.5 License from Customer. Subject to the terms and conditions of this Agreement, Customer shall grant to Service Provider a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Data solely as necessary to provide the Services to Customer.
4.6 Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer Data stored on the Host, and for ensuring that the Customer Data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Service Provider immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Service Provider immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer or any Authorized User, and (iii) not provide false identity information to gain access to or use the Service.
5. Fees and Payment
5.1 Service Provider Fees and Payment Terms. Customer shall pay Service Provider the Subscription Fee and any other fees (“Fees”) as set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. Customer shall pay all Fees by the earlier of (i) thirty (30) days of the invoice date or (ii) commencement the Initial Term or Renewal Term, as applicable. Customer shall notify Service Provider in writing of any billing disputes within thirty (30) days of the invoice date, and thereafter the Fees shall be deemed as accepted by Customer. The Fees shall automatically increase by 3% per year unless otherwise expressly set forth in the applicable Order Form. If Customer fails to make any payment when due, without limiting Service Provider’s other rights and remedies: (a) Service Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Service Provider for all costs incurred by Service Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days or more, Service Provider may terminate this Agreement or suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
5.2 Expenses. Customer shall reimburse Service Provider for its reasonable, out-of-pocket travel and related expenses incurred in performing Other Services. Service Provider shall notify Customer prior to incurring any such expense. Service Provider shall comply with Customer’s travel and expense policy if made available to Service Provider prior to the required travel.
5.3 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Service Provider’s income. Service Provider reserves the right to collect any and all applicable taxes due on behalf of the Customer, to be forwarded to authorities, if Customer fails to pay these timely to the respective authorities.
5.4 Reinstatement. Failure to remit Subscription payments prior to the renewal Term, which results in service suspension may result in reinstatement costs which would be equal to 10% of your annualized Subscription Fee, this reinstatement fee must be paid in order to have your services re-established.
6. Confidential Information
From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. If permitted, the party receiving the order shall endeavor to first given written notice to the other party and make a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback
7.1 Customer Data. Service Provider acknowledges that, as between Service Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.
7.2 Service Provider IP. Customer acknowledges that, as between Customer and Service Provider, Service Provider owns all right, title, and interest, including all intellectual property rights, in and to the Service Provider IP, including, without limitation, any associated Source Code.
7.3 Third-Party Products. The applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
7.4 Customer Data License; Responsibility. Customer hereby grants to Service Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Service Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Quality Assurance Statistics. Customer is solely responsible for all consequences, damages, and losses resulting from the processing or storage of any confidential, proprietary, or government classified information, or intellectual property such as patentable, trade secret or know how information as part of the Customer Data.
7.5 Feedback. If Customer or any of its Authorized Users sends or transmits any communications or materials to Service Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service Provider IP, including without limitation, new features or functionality relating thereto, or any suggestion, enhancement request, recommendation, correction, comment, question, or the like (“Feedback”), Service Provider is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Service Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Service Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Service Provider is not required to use any Feedback. To the extent that full ownership of the Feedback is not transferred, Customer hereby grants to Service Provider a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to make, use, sell, offer for sale, and import any products or services that include the Feedback, including the right to grant sub-licenses.
8. Warranty Disclaimer.
THE SERVICE PROVIDER IP IS PROVIDED “AS IS” AND SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SERVICE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.1 Service Provider Indemnification.
9.1.1 Service Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including attorneys’ fees) (“Losses”) directly incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Service Provider in writing of the claim, cooperates with Service Provider, and allows Service Provider sole authority to control the defense and settlement of such claim.
9.1.2 If such a claim is made or appears possible, Customer agrees to permit Service Provider, at Service Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Service Provider determines that neither alternative is reasonably available, Service Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective with 60 days written notice to Customer.
9.1.3 This Section 9.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Service Provider or authorized by Service Provider in writing, (B) modifications to the Services not made by Service Provider, (C) Customer Data, (D) Third-Party Products, (E) Misuse, or (F) violation of any of the terms or conditions of this Agreement, any Order Form, or the applicable Documentation.
9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Service Provider’s option, defend Service Provider from and against any and all Loses incurred Service Provider resulting from any Third-Party Claim including any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement, any Order Form, and/or the Documentation; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Service Provider or authorized by Service Provider in writing; (iv) modifications to the Services not made by Service Provider; or (v) any results obtained through or in connection with Customer’s use of the Services; provided that Customer may not settle any Third-Party Claim against Service Provider unless Service Provider consents to such settlement, and further provided that Service Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9.3 Sole Remedy. THIS SECTION 9 SETS FORTH THE SOLE REMEDIES AND SOLE LIABILITY AND OBLIGATION OF EACH PARTY TO THE OTHER PARTY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS FROM ANY THIRD PARTY.
10. Limitations of Liability
IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT (OR OTHERWISE IN CONNECTION WITH THE SERVICES), INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF THE SERVICES, ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SERVICE PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (OR OTHERWISE IN CONNECTION WITH THE SERVICES), INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term; Suspension and Termination
11.1 Term. The Initial Term and each Renewal Term shall be as specified on the applicable Order Form. After the Initial Term, this Agreement and the applicable Order Form shall automatically renew for successive Renewal Terms, unless either party elects not to renew by providing the other party written notice at least sixty (60) days prior to the beginning of the applicable Renewal Term. Service Provider may, in its discretion, provide a quotation for pricing changes at least thirty (30) days prior to the commencement of any Renewal Term. In such event, Customer may provide notice of non-renewal at any point prior to the commencement of the applicable Renewal Term. If Customer does not provide such notice of non-renewal, the updated pricing presented by Service Provider shall be effective during the Renewal Term.
11.2 Suspension. Notwithstanding anything to the contrary in this Agreement, Service Provider shall use commercially reasonable efforts to provide written notice and its rationale to Customer in advance of temporarily suspending Customer’s and any Authorized End User’s access to any portion or all of the Services (“Service Suspension”). A Service Suspension may occur as provided pursuant to Section 5 or if: (i) Service Provider reasonably determines that (A) there is a threat or attack on any of Service Provider IP; (B) Customer’s or any Authorized User’s use of Service Provider IP disrupts or poses a security risk to Service Provider IP or to any other Customer or vendor of Service Provider; (C) Customer, or any Authorized End User, is using the Service Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of liquidation, dissolution, or similar proceeding; or (E) Service Provider’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law; (ii) any vendor of Service Provider has suspended or terminated Service Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) Customer fails to make any payment when due hereunder. Service Provider shall use commercially reasonable efforts to provide updates regarding and to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Service Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
11.3 Termination. In addition to any other express termination right set forth in this Agreement, this Agreement may be terminated only as follows:
11.3.1 Service Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Service Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Sections 2, 4, or 6;
11.3.2 either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, which breach is not cured within 30 days of the non-breaching party’s written notice; or
11.3.3 either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) makes or seeks to make a general assignment for the benefit of its creditors; or (C) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.4 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement for any reason, Customer shall immediately discontinue use of Service Provider IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of Service Provider IP and certify in writing to Service Provider that Service Provider IP has been deleted or destroyed. If requested by Customer within ten (10) days of the effective date of termination, Service Provider shall make the Customer Data it is storing at the time available to Customer in the format maintained by Service Provider. For clarification, except for termination by Customer for Service Provider’s uncured material breach, Customer remains responsible for paying all Fees set forth in the Order Form for the duration of the Term, regardless of any earlier termination of this Agreement or purported cancellation by Customer, and in no event will Customer be entitled to any refunds of Fees paid hereunder.
11.5 Survival. This Section 11 and Sections 1, 5, 6, 7, 8, 9 and 10 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12.1 Entire Agreement. This Agreement, together with each applicable Order Form and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Order Form, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; (ii) second, the Order Form (except to the extent it expressly identifies sections of this Agreement that are being modified); and (iii) third, any other documents incorporated herein by reference.
12.2 Force Majeure. In no event shall Service Provider be liable to Customer or any third party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Service Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12.3 Updates to Terms; Waiver. This Agreement may be modified by Service Provider from time to time and Customer’s continued use of the Services after any modifications constitutes its acceptance of the updated terms. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.4 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.5 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the courts presiding over the State of Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.6 Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. Any change in control of Customer resulting from, for example, a divestiture, merger, consolidation, stock transfer or asset sale shall be deemed an assignment or transfer for purposes of this Agreement and requires prior written consent of Service Provider. Service Provider shall not reasonably withhold any such consent.
12.7 Non-Solicitation. During the Term of the Agreement and for a period of one (1) year thereafter, Customer shall not directly or indirectly (a) encourage, induce or otherwise solicit any employee of Service Provider to end employment with Service Provider, or (b) hire any such person; provided that the foregoing shall not be violated by (i) general advertising not targeted at any such person, or (ii) soliciting or hiring any person who has been terminated by the Service Provider.
12.8 Non-Exclusive Service. Customer acknowledges that Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Service Provider’s ability to provide the Services or other technology, including any features or functionality first developed for Customer, to other parties.
12.10 Publicity. Service Provider may include Customer’s name and logo in its customer lists and on its website. Upon acceptance, Service Provider may issue a high-level press release announcing the relationship and the manner in which Customer will use the Service Provider solution. Service Provider shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.
12.11 Statistical Information. Service Provider may anonymously compile statistical information related to the performance of the Services for purposes of improving the Services, provided that such information does not identify Customer’s data or include Customer’s name.
Last Updated: 1/1/2023