This Software as a Service Agreement (the "Agreement"), effective as of the Order Form Effective Date, is by and between M²ORE Platform, LLC, a Texas limited liability company ("M²ORE Platform") and the party executing the Order Form ("Customer"). By executing one or more Order Forms with M²ORE Platform referencing this Agreement, Customer agrees to be bound by this Agreement.
WHEREAS, M²ORE Platform offers subscriptions to access M²ORE VectorTM, a software-as-a-service offering as specified in the applicable Order Form (collectively, the "Services");
WHEREAS, Customer desires to access the Services, and M²ORE Platform desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement.
M²ORE Platform and Customer agree as follows:
"Access Credentials" means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether by contract or ownership of more than fifty percent (50%) of the voting securities of a Person.
"Agreement" has the meaning set forth in the preamble.
"Authorized Users" means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
"Confidential Information" has the meaning set forth in Section 9.1.
"Customer" has the meaning set forth in the preamble.
"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 or an Authorized User, including Personal Information. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Systems" means Customer's information technology infrastructure, including computers, internet connection, software, hardware, databases, electronic systems (including database management systems), mobile devices and connections, and networks, whether operated directly by Customer or through the use of third-party services.
"Disclosing Party" has the meaning set forth in Section 9.1.
"Documentation" means any manuals, instructions, specifications, or other documents or materials that M²ORE Platform provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or M²ORE Platform Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
"Feedback" has the meaning set forth in Section 10.4.
"Fees" has the meaning set forth in Section 8.1.
"Force Majeure Event" has the meaning set forth in Section 15.9(a).
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or M²ORE Platform Systems as intended by this Agreement. Harmful Code does not include any M²ORE Platform Disabling Device.
"Indemnitee" has the meaning set forth in Section 12.3.
"Indemnitor" has the meaning set forth in Section 12.3.
"Initial Term" has the meaning set forth in Section 14.1.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"M²ORE Platform" has the meaning set forth in the preamble.
"M²ORE Platform Disabling Device" means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by M²ORE Platform or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of M²ORE Platform or its designee.
"M²ORE Platform Indemnitee" has the meaning set forth in Section 12.2.
"M²ORE Platform Materials" means the Services, Documentation, and M²ORE Platform Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by M²ORE Platform or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or M²ORE Platform Systems. For the avoidance of doubt, M²ORE Platform Materials include Resultant Data and any information, data, or other content derived from M²ORE Platform's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"M²ORE Platform Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of M²ORE Platform or any Subcontractor.
"M²ORE Platform Systems" means the information technology infrastructure used by or on behalf of M²ORE Platform in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by M²ORE Platform or through the use of third-party services.
"Order Form Effective Date" has the meaning set forth in the Order Form.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Personal Information" means information that Customer provides or for which Customer provides access to M²ORE Platform, or information which M²ORE Platform creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers). Customer's business contact information is not by itself Personal Information.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. "Processing" and "Processed" have correlative meanings.
"Receiving Party" has the meaning set forth in Section 9.1.
"Renewal Term" has the meaning set forth in Section 14.2.
"Representatives" means, with respect to a party, that party's Affiliates', employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors, provided however that M²ORE Platform shall not be deemed Customer's Representative.
"Resultant Data" means data and information related to Customer's use of the Services that is used by M²ORE Platform in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
"Subcontractor" has the meaning set forth in Section 2.7.
"Term" has the meaning set forth in Section 14.2.
"Third-Party Materials" means materials and information, in any form, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to M²ORE Platform.
"US" means the United States of America.
Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, M²ORE Platform hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 15.8) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Unless otherwise approved in writing by M²ORE Platform, Customer's use is limited to Customer's internal use within the US. M²ORE Platform shall provide to Customer the Access Credentials within a reasonable time following the Order Form Effective Date. If the total number of Authorized Users or device integrations are to be limited, such numbers shall be set forth in the Order Form and the total number of Authorized Users and/or device integrations shall not exceed such stated number, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. If Customer's use of the Services exceeds the usage permitted by this Agreement or the Order Form, M²ORE Platform reserves the right to invoice Customer for the additional usage for the remainder of the Term and Customer agrees to pay the additional fees within thirty (30) days of the invoice date.
M²ORE Platform hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.8) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
Except as otherwise expressly provided in this Agreement, as between the parties:
(a) M²ORE Platform has and will retain sole control over the operation, provision, maintenance, and management of the M²ORE Platform Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the M²ORE Platform Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or M²ORE Platform; (ii) results obtained from any use of the Services or M²ORE Platform Materials; and (iii) conclusions, decisions, or actions based on such use.
Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, M²ORE Platform Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the M²ORE Platform Materials, and the Third-Party Materials are and will remain with M²ORE Platform and the respective rights holders in the Third-Party Materials.
Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for day-to-day communications and decision-making regarding this Agreement.
M²ORE Platform reserves the right, in its sole discretion, to make any changes to the Services and M²ORE Platform Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of M²ORE Platform's services to its customers; (ii) the competitive strength of or market for M²ORE Platform's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.
M²ORE Platform may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
M²ORE Platform may, directly or indirectly, and by use of an M²ORE Platform Disabling Device or any other lawful means, suspend or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services or M²ORE Platform Materials, without incurring any resulting obligation or liability, if: (a) M²ORE Platform receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires M²ORE Platform to do so; or (b) M²ORE Platform reasonably believes that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is or has been involved in any fraudulent, misleading, or unlawful activities in connection with use of the Services; or (c) this Agreement expires or is terminated. This Section 2.8 does not limit any of M²ORE Platform's other rights or remedies, whether at law, in equity, or under this Agreement.
Customer shall not, and shall not permit any other Person to, access or use the Services or M²ORE Platform Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Services or M²ORE Platform Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or M²ORE Platform Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or M²ORE Platform Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or M²ORE Platform Materials or access or use the Services or M²ORE Platform Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or M²ORE Platform Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, M²ORE Platform Systems, or M²ORE Platform's provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or M²ORE Platform Materials, including any copy thereof;
(h) access or use the Services or M²ORE Platform Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other M²ORE Platform customer), or that violates any applicable Law;
(i) access or use the Services or M²ORE Platform Materials for purposes of competitive analysis of the Services or M²ORE Platform Materials, the development, provision, or use of a competing software service or product or any other purpose that is to M²ORE Platform's detriment or commercial disadvantage;
(j) access or use the Services or M²ORE Platform Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or M²ORE Platform Materials beyond the scope of the authorization granted in this Agreement.
Customer acknowledges and agrees that the proper deployment, implementation, onboarding, and provision of the Services are conditioned upon the following:
(a) M²ORE Platform will at all times exert its commercially reasonable efforts to complete onboarding and implementation of the Services within thirty (30) days;
(b) Customer must provide to all applicable Representatives and third parties that are involved in the security framework of Customer or of any Authorized User access to complete M² Stratix assessments, configure the Operational Risk Engine, and provide all requested information necessary for proper configuration of the Services;
(c) Customer must timely provide M²ORE Platform with (i) all requested organizational information relevant to security program assessment; (ii) access to relevant personnel for interviews and data gathering; (iii) support and access to M²ORE Platform's Representatives with regard to implementation; (iv) a list of all relevant security domains and programs to be assessed; (v) access to and cooperation of all personnel and other Representatives as determined relevant by M²ORE Platform to the Services (including, for example, security personnel, program managers, etc.); and (vi) such other documents and information as M²ORE Platform may reasonably request;
(d) notwithstanding the design of certain Services to be provided in real-time, the level and time of responsiveness will vary depending on the strength of Customer's (and any applicable Authorized User's) internet connectivity and Customer's timely provision of requested information; and
(e) Customer's maintenance at all times of up-to-date contact information to properly functioning communication infrastructure and hardware.
Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Documentation all Customer Systems on or through which the Services are accessed or used; (b) provide M²ORE Platform Personnel with such access to Customer's premises and Customer Systems as is necessary for M²ORE Platform to perform the Services; and (c) provide all cooperation and assistance as M²ORE Platform may reasonably request to enable M²ORE Platform to exercise its rights and perform its obligations under and in connection with this Agreement.
M²ORE Platform is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and M²ORE Platform Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify M²ORE Platform of any such actual or threatened activity.
M²ORE Platform will make the Services available in accordance with M²ORE Platform's service level policy then in effect. In no event will the Services be considered unavailable nor any service level failure be deemed to occur in connection with any: (a) act or omission by Customer or any Authorized User; (b) Customer Failure; (c) Customer's or its Authorized User'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 M²ORE Platform pursuant to this Agreement; (f) scheduled downtime; or (g) disabling, suspension, or termination of the Services pursuant to Section 2.8. To the extent of any service credit payable (or other remedy granted by M²ORE Platform) to Customer pursuant to M²ORE Platform's service level policy, such credit(s) shall be M²ORE Platform's sole obligation and liability and Customer's sole remedy for any service level failure.
The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. M²ORE PLATFORM HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
M²ORE Platform will use commercially reasonable efforts to maintain the security and integrity of the Services and Customer Data.
Customer has and will retain sole responsibility for (including interruption or failure of any Service related to): (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and M²ORE Platform Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
Customer shall employ all reasonable physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
Customer shall pay M²ORE Platform all fees, charges, and rates (collectively, the "Fees"), which may be set forth in M²ORE Platform's order form executed by the parties (the "Order Form"). All Fees shall be paid by Customer in accordance with this Section 8.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, 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 M²ORE Platform's income.
Customer shall pay all Fees on or prior to the due date set forth in the Order Form. Customer shall make payments to the address or account specified in the Order Form or such other address or account as M²ORE Platform may specify in writing from time to time.
If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) M²ORE Platform 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 M²ORE Platform for all costs incurred by M²ORE Platform in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
(c) if such failure continues for five (5) days following written notice thereof, M²ORE Platform may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
All amounts payable to M²ORE Platform under this Agreement shall be paid by Customer to M²ORE Platform in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
M²ORE Platform may increase Fees for any contract renewal term by providing written notice to Customer at least ninety (90) calendar days prior to the commencement of the renewal term, and the Order Form will be deemed amended accordingly.
In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 9.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing: all M²ORE Platform Materials, financial terms, and existence of this Agreement are the Confidential Information of M²ORE Platform. For clarity and without limitation to the generality of Section 15.7, the provisions of this Section 9 supersede any prior or contemporaneous confidentiality or non-disclosure agreements executed between M²ORE Platform and Customer.
Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the duration of the Term and for an additional four (4) years after any termination or expiration thereof:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
(e) Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
All right, title, and interest in and to the M²ORE Platform Materials, including all Intellectual Property Rights therein, are and will remain with M²ORE Platform and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the M²ORE Platform Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the M²ORE Platform Materials are expressly reserved by M²ORE Platform. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to M²ORE Platform an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
As between Customer and M²ORE Platform, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3.
Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to perform M²ORE Platform's, its Subcontractors', and the M²ORE Platform Personnel's obligations hereunder.
If Customer or any of its employees or contractors submits, orally or in writing, suggestions or recommended changes to the Services or M²ORE Platform Materials, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), M²ORE Platform is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to M²ORE Platform on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and M²ORE Platform 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 M²ORE Platform is not required to use any Feedback.
Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; and
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party.
M²ORE Platform represents, warrants, and covenants to Customer that M²ORE Platform will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
Customer represents, warrants, and covenants to M²ORE Platform that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by M²ORE Platform and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 11.1 AND 11.2, ALL SERVICES AND M²ORE PLATFORM MATERIALS ARE PROVIDED "AS IS." M²ORE PLATFORM 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. WITHOUT LIMITING THE FOREGOING, M²ORE PLATFORM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR M²ORE PLATFORM MATERIALS, 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. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
M²ORE Platform shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Action by a third party (other than an Affiliate of Customer) that Customer's or an Authorized User's use of the Services in accordance with this Agreement infringes or misappropriates such third party's US patents, copyrights, or trade secrets in the US. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Third-Party Materials or Customer Data;
(b) access to or use of the M²ORE Platform Materials in combination with any hardware, system, software, network, or other materials or service not provided by M²ORE Platform or specified for Customer's use in the Documentation;
(c) modification of the M²ORE Platform Materials other than: (i) by or on behalf of M²ORE Platform; or (ii) with M²ORE Platform's written approval in accordance with M²ORE Platform's written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of M²ORE Platform; or
(e) act, omission, or other matter described in Sections 12.2(a), 12.2(b), 12.2(c), or 12.2(d), whether or not the same results in any Action against or Losses by any M²ORE Platform Indemnitee.
Customer shall indemnify, defend, and hold harmless M²ORE Platform and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an "M²ORE Platform Indemnitee") from and against any and all Losses incurred by such M²ORE Platform Indemnitee resulting from any Action by a third party (other than an Affiliate of an M²ORE Platform Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of M²ORE Platform in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including M²ORE Platform's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by M²ORE Platform;
(c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement;
(d) personal injury, death, or severe physical or property damage by Customer, any Authorized User, or any third party; or
(e) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Sections 12.1 or 12.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
If any of the Services or M²ORE Platform Materials are, or in M²ORE Platform's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or M²ORE Platform Materials is enjoined or threatened to be enjoined, M²ORE Platform may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and M²ORE Platform Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and M²ORE Platform Materials, in whole or in part, to seek to make the Services and M²ORE Platform Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and M²ORE Platform Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and M²ORE Platform Materials.
THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND M²ORE PLATFORM'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND M²ORE PLATFORM MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
IN NO EVENT WILL M²ORE PLATFORM OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF M²ORE PLATFORM ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO M²ORE PLATFORM UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IN NO CIRCUMSTANCES SHALL M²ORE PLATFORM BE LIABLE FOR ANY FAILURE OF THE SERVICES TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION, OR AT ALL, RESULTING FROM A FAILURE BY CUSTOMER TO COMPLY WITH CUSTOMER'S OBLIGATIONS UNDER THIS AGREEMENT OR PURSUANT TO M²ORE PLATFORM'S INSTRUCTIONS. FURTHER, CUSTOMER ACKNOWLEDGES THAT THE INTERNET IS NOT ESTABLISHED OR MAINTAINED BY M²ORE PLATFORM, M²ORE PLATFORM HAS NO CONTROL OVER THE INTERNET, AND M²ORE PLATFORM IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET, OR FOR ANY LACK OF INTERNET CONNECTIVITY, WHICH MIGHT AFFECT OR PREVENT THE FULL OPERATION OF THE SERVICES.
The initial term of this Agreement commences as of the original Order Form Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect for the duration of the initial term as specified in the Order Form or for such term as specified in a subsequent Order Form (the "Initial Term").
Unless otherwise specified in an Order Form, this Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least forty-five (45) days prior to the expiration of the then-current term (each, a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
In addition to any other express termination right set forth elsewhere in this Agreement:
(a) M²ORE Platform may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after M²ORE Platform's delivery of written notice thereof; or (ii) breaches any of its obligations under Sections 3.1, 7.3, or 9;
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Customer shall immediately cease all use of any Services or M²ORE Platform Materials and, if requested by M²ORE Platform, (i) promptly/within thirty (30) days of such request, return or destroy all documents and tangible materials containing, reflecting, incorporating, or based on any M²ORE Platform Materials or M²ORE Platform's Confidential Information; (ii) permanently erase all M²ORE Platform Materials and M²ORE Platform's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to M²ORE Platform in a signed written instrument that it has complied with the requirements of this Section 14.4(b);
(c) M²ORE Platform may disable all Customer and Authorized User access to the M²ORE Platform Materials;
(d) if M²ORE Platform terminates this Agreement pursuant to Sections 14.3(a) or 14.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of M²ORE Platform's invoice therefor.
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 3.1, 9, 11.4, 12, 13, 14.4, 14.5, and 15.
On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Unless Customer directs otherwise by sending an email to M²ORE Platform at legal@m2orevector.com, which direction may be given at any time, Customer agrees that M²ORE Platform may display Customer's name and logo as one of M²ORE Platform's customers, subject to any trademark guidelines Customer provides.
Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement shall have legal effect only if in writing and addressed to M²ORE Platform at the address set forth on the Order Form and to Customer at Customer's address set forth on the Order Form (or to such other address or such other person that each such party may designate from time to time in accordance with this Section 15.4). Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
This Agreement, together with the Order Form, and any other documents incorporated herein by reference, constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, 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 document incorporated by reference, the following order of precedence governs: (a) first, this Agreement, unless the Order Form states otherwise; (b) second, the Order Form; and (c) third, any other documents incorporated herein by reference.
Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the non-assigning Party's prior written consent, except that either Party without such consent may make such an assignment to an Affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the assigning Party's voting securities or assets. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
(a) No Breach or Default. In no event will M²ORE Platform be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond M²ORE Platform's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, pandemic, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of sixty (60) days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, M²ORE Platform shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
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 any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. There will be no force or effect to any terms of any related purchase order provided as part of payment processing or, if applicable, as a condition to or evidence of execution or acceptance of any Order Form. 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 will 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.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This Agreement is governed by and construed in accordance with the internal laws of the State of Texas. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and its Expedited Procedures. The place of arbitration shall be in the city of Houston, Texas, United States. The language of the arbitration shall be English. M²ORE Platform may enforce any arbitration award in the State and Federal courts located in Houston, Texas, and/or in such other Court with jurisdiction to enforce the award.
Each party acknowledges and agrees that a breach or threatened breach by either party of any of its obligations under Section 9 or, in the case of Customer, Sections 3.1, 4.3, or 7.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
If you have any questions about this Agreement, please contact us at legal@m2orevector.com.