E0000_01_edited_edited.jpg

/ Legal Stuff / Mperativ Services Agreement

Mperativ Services Agreement
 

THIS SERVICES AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER") AND MPERATIV, INC. ("MPERATIV"). BY EXECUTING AN ORDER FORM THAT INCLUDES THIS AGREEMENT BY REFERENCE, OR BY USING THE MPERATIV SERVICE (AS DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THE TERMS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY.  IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY.  IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE MPERATIV SERVICE. 
 

In consideration of the mutual promises and agreements set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed by the parties, the parties agree as follows:
 

  1. DEFINITIONS.

    1. “Ancillary Services” means implementation, training or other professional services that Mperativ may perform as described in an Order Form or SOW executed by the parties.
       

    2. “Authorized Purposes” means Customer’s internal business purposes if the Subscription Term is not for an Evaluation License.  If the Subscription Term is for an Evaluation License, then “Authorized Purposes” means Customer’s internal testing and evaluation use only and not for any production use.
       

    3. “Customer Data” means all data submitted, or otherwise transmitted by or on behalf of Customer or its Users and received and analyzed by the Mperativ Service.
       

    4. “Customer System” means Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.
       

    5. “Documentation” means the printed, paper, electronic or online user instructions and help files made available by Mperativ for use with the Mperativ Service, as may be updated from time to time by Mperativ.
       

    6. “Evaluation License” means a non-production license granted to Customer with respect to the Software for the limited period of time specified in the Order Form.
       

    7. “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
       

    8. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
       

    9. “Mperativ Service” means Mperativ’s cloud-based revenue marketing platform and, for all purposes of this Agreement, excludes any Open Source Software that may be used to provide such service and all Third Party Offerings.
       

    10. “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
       

    11. “Order Form” means ordering documents for Services provided by Mperativ that are executed hereunder by the parties from time to time, including modifications, supplements and addenda thereto. Order Forms are incorporated herein.  
       

    12. “Services” means the Mperativ Service and Ancillary Services.
       

    13. “Statement of Work” or “SOW” means a written statement of work entered into and signed by the parties describing Ancillary Services to be provided by Mperativ to Customer, including modifications, supplements and addenda thereto. SOWs are incorporated herein.
       

    14. “Subscription Term” means the subscription period for Customer’s use of the Mperativ Service chosen by Customer when signing up online or as set forth in an Order Form.  
       

    15. “Third Party Offerings” means certain software or services delivered or performed by third parties that are required for the operation of the Mperativ Service, or other online or offline business services or products provided by third parties that interoperate with the Mperativ Service.
       

    16. “Users” means Customer’s employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to the Mperativ Service during the Subscription Term have been purchased pursuant to an Order Form, (b) who are authorized by Customer to access and use the Mperativ Service, and (c) who have been supplied user identifications and passwords for such purpose by Customer (or by Mperativ at Customer’s request).
       

  2. ORDERS; LICENSES; AND RESTRICTIONS.  

    1. Orders.  Subject to the terms and conditions contained in this Agreement, Customer may purchase subscriptions for Users to access and use the Mperativ Service by signing up online and paying applicable fees or by executing one or more Order Forms.  Subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Mperativ Service.  Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Mperativ regarding any future functionality or features.  If there is any inconsistency between an Order Form and this Agreement, the Order Form controls.
       

    2. Access and Use License.  Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Mperativ hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the Mperativ Service in accordance with the Documentation in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity.  Customer’s use of the Mperativ Service may be subject to certain limitations – for example, there may be limits on storage capacity for Customer Data, the number of sales opportunites for which Customer may use the Mperativ Service, etc.. Any such limitations will be specified either in the Order Form or in the Documentation. 
       

    3. Restrictions.  Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Mperativ Service; (b) modify, translate, or create derivative works based on any element of the Mperativ Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Mperativ Service; (d) use the Mperativ Service for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the Mperativ Service without Mperativ's prior written consent; (g) use the Mperativ Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Mperativ Service; (i) introduce any Open Source Software into the Mperativ Service; or (j) attempt to gain unauthorized access to the Mperativ Service or Mperativ’s related systems or networks.
       

    4. Reservation of Rights.  Except as expressly granted in this Agreement, there are no other licenses granted to Customer, express, implied or by way of estoppel.  All rights not granted in this Agreement are reserved by Mperativ.
       

  3. THIRD PARTY OFFERINGS.

    1. Integration with Third Party Offerings.  The Mperativ Service may contain features designed to interoperate with Third Party Offerings.  To use such features, Customer may be required to obtain access to such Third Party Offering from their providers or configure the Mperativ Service to communicate with such Third Party Offerings.  Any acquisition by Customer of any such Third Party Offerings, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering.  Mperativ does not warrant or support any Third Party Offering, whether or not they are designated by Mperativ as “certified” or otherwise.  If Customer installs or enables any Third Party Offering for use with Mperativ Service, Customer acknowledges that the Mperativ Service will access Customer Data stored on such Third Party Offerings.  If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Mperativ Service features on reasonable terms, Mperativ may cease providing such features without entitling Customer to any refund, credit, or other compensation.
       

    2. Third Party Access Codes.  To the extent that Mperativ requires that Customer grant Mperativ authorizations, passwords or other user credentials to a Third Party Offering (“Third Party Access Codes”) to retrieve Customer Data or to enable interoperability with the Mperativ Service, Customer shall promptly provide such Third Party Access Codes. Mperativ shall not share, reassign, divulge or disclose any Third Party Access Codes except to Mperativ employees or contractors specifically engaged in the performance of the Services. Third Party Access Codes shall constitute Customer’s Confidential Information under this Agreement.
       

    3. Third Party Hosting.  Mperativ may use the services of one or more third parties to deliver any part of the Services.  Mperativ will pass-through any warranties to the extent that Mperativ receives any from its then current third-party service provider that it can provide to Customer.  Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
       

  4. PASSWORDS; SECURITY.

    1. Passwords.  Customer will create, or Mperativ will issue to Customer, user logins and passwords for each of Customer’s Users.  Customer shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued.  Customer is solely responsible for any and all access and use of the Mperativ Service that occurs using logins and passwords issued to its Users.  Customer shall restrict its Users from sharing passwords.  Customer agrees to immediately notify Mperativ of any unauthorized use of any account or login and password issued to Customer’s Users, or any other breach of security known to Customer.  Mperativ shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
       

    2. No Circumvention of Security.  Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the Mperativ Service.  Customer will immediately notify Mperativ of any breach, or attempted breach, of security known to Customer.  
       

    3. Security.  Mperativ will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in a manner consistent with what Mperativ supplies generally to its other customers.  
       

  5. CUSTOMER OBLIGATIONS.

    1. Customer System.  Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all other computer hardware, software, modems, routers and other communications equipment necessary for Customer and its Users to access and use the Mperativ Service; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Internet to access the Mperativ Service; and (c) paying all third party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in this Agreement, or in an Order Form, Mperativ shall not be responsible for supplying any hardware, software or other equipment to Customer under this Agreement.
       

    2. Acceptable Use Policy.  Customer shall be solely responsible for its actions and the actions of its Users while using the Mperativ Service.  Customer acknowledges and agrees:  (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Mperativ Service, including without limitation the provision of Customer Data; (b) not to send or store data on or to the Mperativ Service which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Mperativ Service or another's computer or mobile device; (d) not to upload in any way any data comprised of “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act; (e) not to use the Mperativ Service for illegal, fraudulent, unethical or inappropriate purposes; (f) not to distribute, promote or transmit through the Mperativ Service any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another customer’s use and enjoyment of the Mperativ Service; (i) not to use the Mperativ Service in any manner that impairs the Mperativ Service, including without limitation the servers and networks on which the Mperativ Service is provided; (j) to comply with all regulations, policies and procedures of networks connected to the Mperativ Service and Mperativ’s service providers; and (k) to use the Mperativ Service only in accordance with the Documentation.  Customer acknowledges and agrees that Mperativ neither endorses the contents of any Customer communications, Customer Data, or Other Information (as defined in Section 11.2 below) nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby.  Mperativ may remove any violating content posted or stored using the Mperativ Service or transmitted through the Mperativ Service, without notice to Customer.  Notwithstanding the foregoing, Mperativ does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data, Other Information, or any other information or data input into or stored in the Mperativ Service for completeness, integrity, quality, accuracy or otherwise.  Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into the Mperativ Service.  
       

    3. Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Mperativ to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Mperativ of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Mperativ at such e-mail address. In addition, Customer agrees that Mperativ may rely and act on all information and instructions provided to Mperativ from the above-specified e-mail address.
       

    4. Temporary Suspension.  Mperativ may temporarily suspend Customer’s or its Users’ access to the Mperativ Service in the event that either Customer any User is engaged in, or Mperativ in good faith suspects Customer or any User is engaged in, any unauthorized conduct (including, but not limited to any violation of this Agreement). Mperativ will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Mperativ’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include User sub-accounts. Customer agrees that Mperativ shall not be liable to Customer, any of its Users, or any other third party if Mperativ exercises its suspension rights as permitted by this Section.  Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Mperativ’s reasonable satisfaction, Mperativ shall reinstate Customer’s and its Users’ access and use of the Mperativ Service.  Notwithstanding anything in this Section to the contrary, Mperativ’s suspension of Customer’s and its Users’ access to the Mperativ Service is in addition to any other remedies that Mperativ may have under this Agreement or otherwise, including but not limited to termination of this Agreement for cause.  Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Mperativ may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
       

  6. AVAILABILITY; ANCILLARY SERVICES.

    1. Availability.  Subject to the terms and conditions of this Agreement, Mperativ will use commercially reasonable efforts to make the Mperativ Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Mperativ will use commercially reasonable efforts to provide twenty-four (24) hours advance notice), and (b) any unavailability caused by circumstances of Force Majeure described in Section 14.6.  Certain enhancements to the Mperativ Service made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge.  However, the availability of some new enhancements to the Mperativ Service may require the payment of additional fees, and Mperativ will determine at its sole discretion whether access to any other such new enhancements will require an additional fee.  These Agreement will govern any bug fixes, error corrections, new builds, enhancements, updates, upgrades and new modules to the Mperativ Service subsequently provided by Mperativ to Customer hereunder.
       

    2. Evaluation Licenses. No availability target is offered or guaranteed in connection with this Agreement if the Subscription Term is for a version of the Mperativ Service offered under an Evaluation License.  Mperativ has no obligation to support or maintain the Mperativ Service during the Subscription Term of any Evaluation License in any way, correct any errors or deficiencies in the Mperativ Service or provide updates, new builds or error corrections.
       

    3. Beta Releases.  If Customer’s Order Form indicates that a subscription or period of a subscription is for a “beta release,” “beta subscription”  or other pre-release version of the Mperativ Service (a “Beta Release”), Customer acknowledges and agrees that the Beta Release is for testing purposes only and may contain, in Mperativ’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Mperativ Service.  Customer acknowledges and agrees that any subscription to use a Beta Release will automatically convert to a paid commercial release subscription upon the termination date of such Beta Release subscription indicated in the applicable Order Form. While the Mperativ generally intends to distribute commercial release versions of the Mperativ Service, Mperativ reserves the right not to release later commercial release versions of any Beta Release.  Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Beta Release is not considered by Mperativ to be suitable for commercial use, and that it may contain errors affecting its proper operation.  BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT THE BETA RELEASE MAY CONTAIN BUGS, ERRORS AND OTHER PROBLEMS AND IT MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE MPERATIV SERVICE IN GENERAL.  MPERATIV SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY BETA RELEASE. 
       

    4.  Ancillary Services.  Mperativ shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable mutually executed Order Forms or SOWs.  Each such Order Form or SOW will include, at a minimum: (a) a description of the scope of Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services. All SOWs shall be deemed part of and subject to this Agreement. If there is any inconsistency between a SOW and this Agreement, the SOW or Order Form shall control.  If either Customer or Mperativ requests a change to the scope of Ancillary Services, the party seeking the change shall propose such change by written notice. Promptly following the other party’s receipt of the written notice, the parties shall discuss and agree upon the proposed changes. Mperativ will prepare a change order document describing the agreed changes to the Ancillary Services and any applicable change in fees and expenses (a “Change Order”). Change Orders are not binding unless and until executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement. Mperativ and Customer shall cooperate to enable Mperativ to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each applicable Order Form or SOW.  In addition, Customer shall perform any Customer obligations specified in each such Order Form and/or SOW.  In the event the Ancillary Services are not performed in accordance with the terms of the applicable SOW, Customer shall notify Mperativ in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services by Mperativ. Customer’s notice shall specify the basis for non-compliance with the relevant Order Form or SOW and if Mperativ agrees with the basis for non-compliance, then at Mperativ’s sole option, Mperativ shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service.  THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND MPERATIV’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.
       

  7. FEES AND PAYMENT.

    1. Fees. Customer agrees to pay all fees specified in all Order Forms and SOWs or otherwise applicable to Customer’s and its Users’ use of the Mperativ Service using one of the payment methods Mperativ supports. Except as otherwise specified in this Agreement or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) fees are based on Services purchased, regardless of actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the number of Users for whom subscriptions are purchased cannot be decreased during the relevant Subscription Term.  User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.  All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
       

    2. Invoices and Payment. All fees for Services will be invoiced in advance and in accordance with the applicable Order Form.  Fees for Ancillary Services will be invoiced as set forth in an applicable SOW or Order Form. Except as otherwise set forth in the applicable Order Form or SOW, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.  Customer is responsible for providing complete and accurate billing and contact information to Mperativ and notifying Mperativ of any changes to such information.
       

    3. Overdue Charges.  If Mperativ does not receive fees by the due date, then at Mperativ’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Mperativ may condition future purchases of Services and Order Forms on payment terms shorter than those specified in Section 7.2 (Invoices and Payment).
       

    4. Suspension of Service. If any amounts owed by Customer for the Services are sixty (60) or more days overdue, Mperativ may, without limiting Mperativ’s other rights and remedies, suspend Customer’s and its Users’ access to the Services until such amounts are paid in full.
       

    5. Payment Disputes. Mperativ agrees that it will not exercise its rights under Section 7.3 (Overdue Charges) or Section 7.4 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
       

    6. Taxes. All fees are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Mperativ’s net income). 
       

  8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

    1. Mutual Representations and Warranties.  Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust. 
       

    2. Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE MPERATIV SERVICE, ANCILLARY SERVICES, AND THIRD-PARTY OFFERINGS  ARE PROVIDED ON AN AS-IS BASIS.  CUSTOMER’S USE OF THE MPERATIV SERVICE, ANCILLARY SERVICES, AND THIRD-PARTY OFFERINGS IS AT ITS OWN RISK.  MPERATIV DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  THE EXPRESS WARRANTIES MADE BY MPERATIV IN SECTION 8 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY.  ANY SOFTWARE PROVIDED TO CUSTOMER AS A RESULT OF MPERATIV’S PROVISION OF THE SERVICES IS LICENSED AND NOT SOLD.  NO WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE SUBSCRIPTION TERM OF ANY EVALUATION LICENSE.
       

NO AGENT OF MPERATIV IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF MPERATIV AS SET FORTH HEREIN.  MPERATIV DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MPERATIV IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

 

  1. INDEMNIFICATION.
     

    1. Mperativ Indemnity.  
       

      1. General.  During the Subscription Term (other than with respect to an Evaluation License or a Beta License), Mperativ, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Mperativ Service infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim.  Mperativ’s obligations under this Section are conditioned upon (i) Mperativ being promptly notified in writing of any claim under this Section, (ii) Mperativ having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Mperativ’s expense and reasonable request) in the defense of such claim.  In no event shall Customer settle any claim without Mperativ’s prior written approval.  Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Mperativ’s right to control the defense and settlement.
         

      2. Mitigation.  If any claim which Mperativ is obligated to defend has occurred, or in Mperativ’s determination is likely to occur, Mperativ may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Mperativ Service, (b) substitute a functionality equivalent, non-infringing replacement for the Mperativ Service, (c) modify the Mperativ Service to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Mperativ Service due to such claim and the remaining days in the then-current Subscription Term.
         

      3. Exclusions.  Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Mperativ Service in combination with any software, hardware, network or system not supplied by Mperativ where the alleged infringement relates to such combination, (iii) any modification or alteration of the Mperativ Service other than by Mperativ, (iv) Customer’s continued use of the Mperativ Service after Mperativ notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; (vi) Third Party Offerings; and (vii) the Customer System.
         

      4. Sole Remedy.  THE FOREGOING STATES THE ENTIRE LIABILITY OF MPERATIV WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE MPERATIV SERVICE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF MPERATIV WITH RESPECT THERETO.  NO INDEMNITIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT RELATED TO ANY SERVICE OFFERED UNDER AN EVALUATION LICENSE.
         

    2. Customer Indemnity.  Customer shall defend Mperativ and its licensors and their respective officers, directors and employees (“Mperativ Indemnified Parties”)  from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Mperativ of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Customer’s use or alleged use of the Mperativ Service other than as permitted under this Agreement; or (c) arising from the occurrence of any of the exclusions set forth in Section 9.1(c).  Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim.  Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Mperativ providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim.  In no event shall Mperativ settle any claim without Customer’s prior written approval.  Mperativ may, at its own expense, engage separate counsel to advise Mperativ regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
       

  2. CONFIDENTIALITY. 

    1. Confidential Information.  Each party (the “Receiving Party”) hereby understands and acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party).  Confidential Information of Mperativ shall include any and all non-public information regarding features, functionality and performance of the Mperativ Service.  The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party.  Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.  
       

    2. Injunctive Relief.  The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
       

  3. PROPRIETARY RIGHTS. 

    1. Mperativ Service.  As between Mperativ and Customer, all right, title and interest in the Mperativ Service and any other Mperativ materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Services, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Mperativ or Mperativ’s licensors and providers, as applicable.  If the Subscription Term is for an Evaluation License, Customer shall periodically (and, in any case, not less than once every thirty (30) days or more frequently as provided in the Order Form) provide Mperativ with written feedback regarding Customer’s use of the Mperativ Service, the functionality of the Mperativ Service, any bugs, errors or deficiencies that Customer encounters regarding the operation and functionality of the Mperativ Service and any suggestions that Customer may have regarding improvement of such operation and functionality (“Feedback”).  Additionally, Customer shall promptly respond to any questions that Mperativ may have regarding such Feedback or to any other questions Mperativ may have regarding Customer’s use of the Mperativ Service.  Customer hereby does and will irrevocably assign to Mperativ all Feedback and all Intellectual Property Rights in the Feedback.  
       

    2. Customer Data.  As between Mperativ and Customer, all right, title and interest in (a) the Customer Data, (b) other information input into the Mperativ Service by Customer or its Users or generated by the Mperativ Service as a result of Customer’s or its Users’ use thereof (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Customer.  Customer hereby grants to Mperativ a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Mperativ to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined in Section 11.3 below).  To the extent that receipt of the Customer Data requires Mperativ to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Mperativ hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement. As between Mperativ and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
       

    3. Aggregated Statistics.  Notwithstanding anything else in this Agreement or otherwise, Mperativ may monitor Customer’s use of the Services and use data and information related to such use, Customer Data and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Mperativ Service (“Aggregated Statistics”).  As between Mperativ and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Mperativ.  Customer acknowledges that Mperativ will be compiling Aggregated Statistics based on Customer Data, Other Information and information input by other customers into the Mperativ Service, and Customer agrees that Mperativ may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
       

    4. Mperativ Developments.  All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Mperativ, whether solely or jointly, including without limitation, in connection with Mperativ’s performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable SOW or Order Form) all Deliverables (“Mperativ Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Mperativ.  Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees, consultants, contractors or agents to the creation of the Mperativ Developments is not, by operation of law or otherwise, vested in Mperativ, Customer hereby assigns and agrees to assign to Mperativ all right, title and interest in and to such Mperativ Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
       

    5. License to Deliverables.  Subject to Customer’s compliance with this Agreement, Mperativ hereby grants Customer a limited, non-exclusive, non-transferable license during the Subscription Term to use the Deliverables solely in connection with Customer’s authorized use of the Services. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by Mperativ to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.   
       

  4. LIMITATION OF LIABILITY.

    1. No Consequential Damages.  NEITHER MPERATIV NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF MPERATIV OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE MPERATIV SERVICE, ANCILLARY SERVICES OR THE RESULTS THEREOF.  MPERATIV WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
       

    2. Limits on Liability.  NEITHER MPERATIV NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO MPERATIV UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT OF FEES PAID BY CUSTOMER IN A SINGLE SUBSCRIPTION TERM.
       

    3. Essential Purpose.  CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
       

  5. TERM AND TERMINATION.  

    1. Term.  The term of this Agreement shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in this Agreement.  Evaluation Licenses will terminate at the end of their respective Subscription Terms unless the parties enter into an Order Form for a new Subscription Term or may, if set forth on the applicable Order Form, convert to paid Subscription Terms.
       

    2. Termination for Cause.  A party may terminate this Agreement (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing  or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree.  Upon any termination for cause by Customer, Mperativ shall refund Customer any prepaid fees for the remainder of the terminated Subscription Agreement after the effective termination date.  Upon any termination for cause by Mperativ, Customer shall pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination.  In no event shall any termination relieve Customer of the obligation to pay any fees payable to Mperativ for the period prior to the effective date of termination.
       

    3. Effects of Termination.  Upon expiration or termination of this Agreement, (a) Customer’s use of and access to the Mperativ Service and Mperativ's performance of all Ancillary Services shall cease; (b) all Order Forms shall terminate; and (c) all fees and other amounts owed to Mperativ shall be immediately due and payable by Customer, including without limitation, all fees incurred under any outstanding Statement of Work up through the date of termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for any partially completed Ancillary Services. Customer understands and agrees that it is required to download all desired Customer Data from the Mperativ Service prior to the effective date of termination.  Unless otherwise agreed in writing by the parties, Mperativ shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.  In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data and Other Information) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing. 
       

    4. Survival.  This Section and Sections 1, 2.3, 2.4, 7, 8, 9, 11, 12, 13.3, and 14 shall survive any termination or expiration of this Agreement. 
       

  6. MISCELLANEOUS.

    1. Notices.  All notices which any party to this Agreement may be required or may wish to give may be given by addressing them to the other party at their addresses set forth in the applicable Order Form or provided during online signup (or at such other addresses as may be designated by written notices given in the manner designated herein) by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery.  All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
       

    2. Governing Law.  These Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.  Any disputes arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance or termination, or any dispute between the parties arising from the parties’ relationship created by this Agreement, shall be heard in the state and federal courts located in San Francisco County, California and the parties hereby consent to exclusive jurisdiction and venue in such courts.
       

    3. Publicity. Mperativ has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Mperativ business development and marketing efforts, including without limitation Mperativ’s marketing materials and website.
       

    4. Export.  The Mperativ Service utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Mperativ Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Mperativ Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Mperativ and its licensors make no representation that the Mperativ Service is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data nor any information acquired through the use of the Mperativ Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
       

    5. General.  Customer shall not assign its rights hereunder or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Mperativ.  Any purported assignment in violation of the preceding sentence is null and void.  Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto.  There are no third-party beneficiaries to this Agreement.  Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties.  No waiver will be implied from conduct or failure to enforce rights.  No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted.  If any provisions of this Agreement found invalid or unenforceable such provisions will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force.  The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties.  This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.  Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood (each a “Force Majeure” event), provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.