THIS MASTER SERVICES AGREEMENT (the “MSA” or “Agreement”) is entered into by and between RegVerse, LLC, a Delaware limited liability company (“Company”) and the company or other legal entity accepting this MSA and affiliates of that company or entity (“Customer”). This MSA is effective, and Customer agrees to its terms and conditions, as of the date that Customer accepts the MSA by (1) executing an order form that references this MSA; or (2) using the Software or Services (the “Effective Date”). Customer and the Company agree to the following:
(a) The Company’s products and services may include software in any form (“Software”), support services (“Support Services”), installation services (“Installation Services”), and professional services (“Professional Services”) (Support Services, Installation Services, and Professional Services each and collectively “Service” or “Services”). Except with respect to Third-Party Materials (defined below), the use of the Software and Services is governed by: (i) this Master Services Agreement; (ii) the Order (defined below); and (iii) any end user license agreement or separate click-wrap agreement or terms in any Software, including, but not limited to, any such agreement included with Third-Party Materials (each, a “EULA” and collectively, with the Master Services Agreement and each Order, the “Agreement”). If there is a conflict among any of the foregoing, priority shall be given in order to the: Order, these Master Services Agreement, and any EULA.
(b) Third Party Provider (as defined below) products and services (“Third-Party Materials”) may be included in the Software or Services or required to support an additional feature Customer requires for the Software or Services. “Third Party Provider” means any person or entity other than the Company or Customer that provides services or software embedded in the Software or Services, or which is provided by the Company to use with the Software or Services which could include hardware for use with the Subscription Services. For purposes of this Agreement, such Third-Party Materials are subject to their own terms and conditions and the applicable flow-through provisions, all of which will be prompted for acceptance by Customer prior to use or can be found at the Company’s website. The Company may amend the linked terms and conditions at any time and for any reason. Customer is responsible for reviewing such link periodically as continued use by Customer and/or its Authorized Users after amendment shall be deemed acceptance. If Customer does not agree to abide by the applicable terms for any such Third-Party Materials, then Customer should not install or use such Third-Party Materials. For the avoidance of doubt, the Company does not endorse, warrant, or control such Third-Party Materials and is not responsible for the legality, quality, accuracy, reliability, or availability of any Third-Party Materials. Customer is responsible for reviewing, accepting, and complying with the terms of use or other restrictions applicable to the Third-Party Materials. The Company is not liable for and makes no representations related thereto, including without limitation, the way Third Party Providers handle Customer Content. The Company reserves the right to suspend or terminate access to the Third-Party Materials from the Software or Services at any time upon thirty (30) days’ notice, or sooner as otherwise set forth herein.
(c) Customer shall not combine or distribute the Software or any derivative work thereof with opensource software or with software developed using opensource software in a manner that subjects the Software to any obligations requiring that the Software be disclosed or distributed in source code form or be licensed on terms inconsistent with the terms of this Agreement.
(d) Professional Products and Services. Customer may request additional products, implementation, site planning, training, creative services, configuration, integration, project management and other products and services from the Company, all of which shall be included in the definition of “Professional Products and Services”. Professional Products and Services shall be provided under a mutually executed Order. If an applicable Order expressly sets forth certain deliverables for Customer (“Deliverables”), the Company hereby grants Customer, subject to timely payment of applicable fees and charges, and subject to the restrictions in this Agreement, a personal, nonexclusive, non-transferable license to use the Deliverables solely in connection with its use of the Software and Services during the subscription term. Unless specified in an Order, the Company does not provide updates or reintegration work required to make Deliverables compatible with future versions or releases of the Software or Services. Customer will (i) timely cooperate and provide all assistance and access to resources reasonably required by the Company to perform the Professional Products and Services, (ii) provide a reasonable work environment if the Professional Products and/or Services are performed on Customer’s premises, (iii) permit the Company to control and/or operate all facility controls, systems, apparatus, equipment and machinery necessary to perform the Professional Products and/or Services; (iv) furnish the Company with all information, approvals, permits and consents from government authorities and others as may be required for performance of the Professional Products and/or Services, except for those the Company has expressly agreed in writing to obtain; (v) notify the Company promptly of any site conditions requiring special care, and provide the Company with any available documents describing the quantity, nature, location and extent of such conditions; (vi) be solely responsible for, and assume the risk of, any problems resulting from the content, accuracy, completeness and consistency of all data, materials, information and other resources supplied by Customer; and (vii) be solely responsible for its data, including electronically stored data (e.g., data backup, security and virus protection).
(e) Customer Responsibilities. Customer is responsible and liable for all uses of the Software and Services and documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions Authorized Users (as defined herein), and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User’s use of the Software and Services, and shall cause Authorized Users to comply with such provisions. “Authorized User” means Customer's employees, consultants, contractors, representatives, and agents (i) who are authorized by Customer to access and use the Software and Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Software and Services has been purchased hereunder.
(f) Suspension. Notwithstanding anything to the contrary in this Agreement, the Company may temporarily suspend Customer's and any Authorized User’s access to any portion or all of the Software and Services if: (i) the Company reasonably determines that (A) there is a threat or attack on the Software or Services; (B) Customer's or any Authorized User's use of the Software or Services disrupts or poses a security risk to the Software or Services or to any other customer or vendor of the Company; (C) Customer, or any Authorized User, is using the Software or Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) the Company's provision of the Software or Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of the Company, including, but not limited to, any Third Party Provider, has suspended or terminated the Company's access to or use of any third-party services or products required to enable Customer to access the Software or Services; or (iii) in accordance with Section 3 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). The Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software or Services following any Service Suspension. The Company shall use commercially reasonable efforts to resume providing access to the Software or Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. The Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
The Customer may request additional products and/or services during the term of this contract and these requests will be governed by this agreement and the quote provided by the Company. The Company may submit a quote to the Customer containing quantity, pricing, and other ordering information (“Quote”). Customer will be deemed to have accepted a Quote when Customer either: (i) signs and returns the Quote; (ii) issues a purchase order (“PO”) per the Quote; or (iii) sends the Company an email or other written acceptance referring to the Quote. The foregoing is an “Order.” Customer agrees that any terms and conditions inconsistent with or in addition to this Agreement or the Quote, including without limitation any PO terms and conditions, are rejected and null and of no effect, even if the Company accepts, acknowledges, or ships Software or provides Services in response to the Order. Each Order is complete when the Company provides Software and onboards Customer for the Services, if applicable.
The Company will invoice Customer after the Order is complete, and Customer will pay the invoice in the chosen payment method as well as pay or reimburse the Company for all related taxes, withholdings, duties and assessments, except for taxes based on the Company’s net income. Amounts are due in the currency stated in the Order, as applicable, in full thirty (30) days after the date of invoice, with interest accruing thereafter at the lesser of 1.5% per month or the maximum permitted by law. If no currency is stated, amounts are due in United States dollars. Payment shall be made free of any currency controls or other restrictions, by wire transfer or ACH, or Auto-Pay to the bank account designated by the Company. The Company may suspend shipments of and/or access to Software or performance of Services if Customer fails to make payment when due and the Company shall not be liable for any damages or liabilities arising out of or resulting from any such suspension. For the avoidance of doubt, Customer acknowledges and agrees that Software and Services shall not be shipped, access granted, or performed until Customer makes payment under an invoice.
(a) Overages. The Company bills Customer for Software and Services through the payment provider agreed upon by the parties (“Payment Method”). Customer authorizes the Company to charge for the Software and Services through the Payment Method. The Company reserves the right to charge overage for usage of licenses over and above the ordered licenses. If the number of active devices exceeds the minimum number of devices in the Quote, the parties agree that the active device count will be reviewed and adjusted, including fees owed, on the next invoice. Such invoices will include a report detailing the actual number of devices in use as of the last day of the previous month to support the changes in billing.
(b) Recurring Billing. Most subscription plans to the Software and related Services consist of recurring periodic charges as agreed to by Customer. By entering into this Agreement, Customer acknowledges that the subscription may have an initial and recurring payment feature as described in the Order and Customer accepts responsibility for all recurring charges prior to cancellation.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE COMPANY SUBMITS PERIODIC CHARGES (E.G., MONTHLY, QUARTERLY OR ANNUALLY) THROUGH THE PAYMENT METHOD WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (CONFIRMED IN WRITING UPON REQUEST BY THE COMPANY) THAT THE CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE THE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE THE COMPANY REASONABLY COULD ACT. TO TERMINATE AUTHORIZATION OF PAYMENT, CUSTOMER AGREES TO SEND AN EMAIL TO BILLING@SURGEVENTURES.COM IN ORDER TO CANCEL THE AUTHORIZED PAYMENT METHOD.
(c) Current Information Required. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE BILLING INFORMATION. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP PAYMENT METHOD CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND MUST PROMPTLY NOTIFY THE COMPANY IF PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF THE CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF USER NAME OR PASSWORD. IF CUSTOMER FAILS TO PROVIDE THE COMPANY ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT THE COMPANY MAY CONTINUE CHARGING FOR USE OF THE SOFTWARE AND SERVICES.
(d) Auto-renewal. Unless the Company or Customer gives the other written notice of its intent not to renew a subscription at least sixty (60) days prior to the expiration of the then-current subscription period, the subscription will be automatically extended for successive renewal periods of the same duration as the subscription period originally selected, at the then-current non-promotional subscription rate, unless a renewal price is agreed to in the Quote or Order. Customer’s non-termination or continued use of the Service reaffirms that the Company is authorized to charge through the chosen Payment Method. The Company may submit those charges for payment and Customer agrees to be responsible for such charges. This does not waive the Company’s right to seek payment directly from the Customer. Charges may be payable in advance, periodically, or as otherwise described in the Quote or Order when Customer initially subscribed to the Service.
(e) Refund for Subscription and Pre-paid Services. If Customer terminates this Agreement or any Order, whether for Software or Services, without cause prior to expiration of the current subscription term (as set forth in the applicable Order), Customer shall be responsible for all outstanding amounts due for the then-current term, which will become immediately due. For the avoidance of doubt, upon termination for convenience, Customer will not receive a refund for any prepaid fees applicable to the then-current term.
(f) Free Trials and Other Promotions. Any free trial or other promotion that provides subscriber-level access to the Software and Services must be used within the specified time of the trial. In accordance with any Order provided therewith, Customer must cancel subscription before the end of the trial period in order to avoid being charged a subscription fee. If Customer cancels prior to the end of the trial period and is inadvertently charged for a subscription, Customer shall contact billing@surgeventures.com immediately to have the charges reversed. To the maximum extent provided by applicable law, Customer acknowledges and agrees that the Company shall have no liability, and Customer hereby releases from the same, for any use of the Software and Services during a trial or promotion period.
(g) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. The Company may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid the Company with respect to any amounts due and payable during the term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with this Section 3. Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
(a) Software and the Third-Party Materials within such are licensed to Customer, not sold, and Customer does not have under or in connection with the Agreement any ownership interest in the Software, Third-Party Materials, or in any related intellectual property rights of the Company or the respective holders in the Third-Party Materials. Nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to any of the Software or Third-Party Materials. By using any Software (including any Software hosted by the Company and provided through the “cloud”), Customer agrees to be bound by and abide by the terms of any applicable EULA.
(b) Customer shall not use the Software for any purposes beyond the scope of the access granted in this Agreement and applicable EULA. Customer shall not at any time, directly or indirectly, and shall not permit any users of the same to: (i) copy, modify, or create derivative works of the Software, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Customer acknowledges and agrees that the Company may use information regarding Customer’s use of the Software (including input into and output of the Software as well as data pertaining to Customer’s use) or otherwise provided to the Company in connection with this Agreement (“Content”) to provide, maintain, develop, and improve the Software, including (but not limited to) training and improving on Software models and algorithms including Third-Party Materials used therewith; provided that, the Company shall do not so in a way that publicly discloses Customer’s Confidential Information or identifies Customer.
(a) Subject to the limitations and conditions set forth in Section 5(b) and Section 5(c), the Company warrants to Customer that for a period of sixty (60) days from the date of installation of the Software (the “Warranty Period”), the Software will substantially conform in all material respects to the specifications available in the applicable Order, when installed, operated, and used as recommended in in accordance with the Agreement. The Company does not make any representations or guarantees regarding uptime or availability of the Software.
(b) Notwithstanding any provisions to the contrary in the Agreement, the limited warranty set forth in Section 5(a) does not apply to problems arising out of or relating to: (i) Software, or the media on which it is provided, that is modified or damaged by Customer or its agents, employees, managers, or any other representatives; (ii) Customer or any third party’s negligence, abuse, misapplication, or misuse of the Software, including any use of the Software other than as specified in the Agreement; (iii) Customer’s breach of any material provision of the Agreement; (iv) Third-Party Materials; or (v) any other circumstances or causes outside of the reasonable control of the Company (including abnormal physical or electrical stress).
(c) The Company represents and warrants that it shall comply with the service level obligations set forth on Exhibit A (Service Level Obligations) (the “Service Level Obligations”), incorporated herein by reference. In the event the Company fails to meet the Service Level Obligations more than two (2) times in the first calendar quarter upon the initial contract execution, and all outstanding Orders upon written notice to the Company and shall be entitled to a refund of amounts paid for Software and Services not rendered, prorated from the effective date of termination. Customer shall send written notice of any service level issue to the Company and, in such notice, initially identify, in good faith, the severity level as set forth in Exhibit A, provided such shall not be binding on the Company. Upon receipt of written notice of a service level issue, the Company will evaluate the issue and may, in good faith, modify the severity level in its sole discretion.
(d) The limited warranties set forth in Section 5(a) and Service Level Obligations, and Customer’s rights with respect to a failure to meet the same, set forth in Section 5(c) apply only if Customer: (i) notifies the Company, with respect to Section 5(a) in writing of the warranty breach before the expiration of the Warranty Period, or, with respect to Section 5(c), in writing of a breach within thirty (30) days of such occurring; and (ii) as of the date of notification, is in compliance with all terms and conditions of the Agreement (including the payment of all fees then due and owing in connection with the Agreement).
(e) EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 5(a), ALL SOFTWARE, AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY THE COMPANY ARE PROVIDED “AS IS” AND THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE COMPANY 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5(a), THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, 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.
(a) IN NO EVENT WILL THE COMPANY, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS, INCLUDING, WITHOUT LIMITATION, THIRD PARTY PROVIDERS, BE LIABLE UNDER OR IN CONNECTION WITH THE 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) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY SOFTWARE OR SERVICES, OR ANY OTHER PRODUCTS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE 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.
(b) IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO THE COMPANY UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(a) The Company will defend or settle any action brought against Customer by a third party to the extent it is based upon a third -party claim that the Software infringes any patent or copyright existing in the United States of America. The Company will pay any actual, documented out-of-pocket costs and damages made in a written settlement negotiated by the Company or awarded by a court of competent jurisdiction against Customer in final judgment resulting from the claim, provided Customer: (i) gives the Company prompt written notice of the claim; (ii) grants the Company sole control of the defense and settlement of the claim; (iii) cooperates in response to the Company’s requests for information, assistance, and authority in connection with the foregoing; and (iv) is not in breach of this Agreement. The Company will not be bound by any settlement Customer enters into without the Company’s prior written consent. The Company will have no obligation under this Section 7 to the extent any claim is based on negligent acts, fraud or willful misconduct by Customer or Customer’s employees or subcontractors. If the operation of the Software becomes, or the Company believes is likely to become, the subject of such a claim, Customer will permit the Company, at the Company’s option and expense, either to secure the right for Customer to continue using the Software or to replace or modify it so that it becomes non-infringing. However, if neither of the foregoing alternatives is available on terms which are reasonable in the Company’s judgment, Customer will return the Software upon the Company’s written request for a refund of the Software cost, prorated from the effective date of termination.
(b) The Company shall have no liability or obligation under this Section 7 to the extent that the alleged infringement arises out of or relates to: (i) the use or combination of the Software or Services with third party products or services; (ii) use for a purpose or in a manner for which the Software or Services was not designed or intended; (iii) any modification or alteration to the Software or Services made by any person other than the Company or its authorized or designated representatives; (iv) any modifications or alterations to the Software or Services made by the Company pursuant to Customer’s specific requests or instructions; (v) any technology owned or licensed by Customer from third parties, including, but not limited to, Third-Party Materials; (vi) use of any older version of the Software or Services when use of a newer Software or Service release made available to Customer would have avoided the infringement; or (v) the Content.
(c) THIS SECTION 7 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE COMPANY’S SOLE AND ENTIRE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS SECTION 8 SHALL BE SUBJECT TO SECTION 7.
(d) Customer shall indemnify, defend, and hold harmless the Company and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns from and against 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 resulting from any action by a third party arising out of or relating to (i) negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer or any of its agents, representative, employees, or managers with respect to the Software, Services, or otherwise in connection with the Agreement; (ii) use of the Software or Services by or on behalf of Customer or any of its representatives that is outside the purpose, scope or manner of use authorized by the Agreement, or in any manner contrary to the Company’s instructions; (iii) the Content or Protected Information, or the Company’s use thereof, including any action for infringement, misappropriation, or other violation of such third party’s intellectual property rights; (iv) use or combination of the Software or Services with third party products or services; (v) any modification or alteration to Software or Services made by any person other than the Company or its authorized or designated representatives; (vi) any modifications or alterations to the Software or Services made by the Company pursuant to Customer’s specific requests or instructions; (vii) any technology owned or licensed by Customer from third parties, including, but not limited to, Third-Party Materials; or (viii) use of any older version of the Software when use of a newer Software release made available to Customer would have avoided such action.
The Software is "commercial computer software" as defined in the U.S. Federal Acquisition Regulations (“FAR”) at 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the "FAR" and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses U.S. Government rights in the Software. Any confidential or proprietary information received by the U.S. Government in connection with this Agreement is exempt from release under the Freedom of Information Act and is prohibited from release under the Federal Trade Secrets Act, 18 U.S.C. 1905.
(a) Each of the parties (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business, including, without limitation computer programs, software, technical drawings, algorithms, know-how, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), designs, schematics and other technical, business, financial, customer and product information, data and development plans, of any nature and in any form whatsoever, which to the extent previously, presently or subsequently disclosed to the Receiving Party is “Confidential Information” of the Disclosing Party (whether or not such information was or is marked or designated in writing as “confidential,” “proprietary,” or any other similar term or designation). Customer agrees without limitation that the Company’s prices, quotes, discounts and proposals to Customer are the Company’s Confidential Information. The Receiving Party agrees: (i) to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials); (ii) not to divulge any such Confidential Information to any third person, except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein, and provided that Customer shall in any event remain liable for any breach of these provisions by its employees or subcontractors; (iii) not to make any use whatsoever at any time of such Confidential Information except to perform obligations or exercise rights under this Agreement; and (iv) not to copy, decrypt, reverse assemble, dissemble, decompile or reverse engineer any such Confidential Information. Without granting any right or license, the Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document by contemporaneous written evidence: (i) is or becomes (through no improper action or inaction by the Receiving Party) readily available to the public; (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (iii) was lawfully disclosed to it by a third party that lawfully received such information without restriction on disclosure or use; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and provides reasonable advance notice of and allows the Disclosing Party to participate in the proceeding.
(b) No Protected Information. Customer acknowledges and agrees that use of the Subscription Services does not require Customer to provide any Protected Information to or through the Subscription Services and Company shall have no liability to Customer or its representatives, users or any other party related to any Protected Information. Customer shall not upload, provide or submit any Protected Information to the Subscription Services. For the purposes of this Agreement, “Protected Information” means: (i) Social Security number; (ii) passport numbers or other government-issued identification numbers; (iii) health or medical information (other than dietary preferences or medical contact information); (iv) date of birth, (v) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; or (vi) other information that a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, title, company name, mailing address, email address, and phone number).
(c) Customer acknowledges and agrees that any feedback, suggestions, comments, improvements, modifications and other information (including any ideas, concepts, “know-how” or techniques contained therein) that Customer provides to the Company about its Software or Services or their performance (collectively, the “Feedback”) shall not be deemed as Customer’s Confidential Information and may be used, disclosed, disseminated or published by us for any purpose, including developing, manufacturing and marketing products and services incorporating Feedback, without obligation of any kind to Customer, Customer waives any rights whatsoever in or to all Feedback. Customer hereby assigns to the Company on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, although the Company is not required to use any Feedback.
(a) Each party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof. Upon termination of this Agreement: (i) Customer will promptly return to the Company all Confidential Information; and (ii) Customer will, within thirty (30) days after receipt of the Company’s invoice, pay all accrued and unpaid fees and expenses. In the event of termination by the Company due to Customer’s uncured material breach, all amounts due and payable to the Company for the full term of any outstanding Orders or other agreements between the parties shall become immediately due and owing upon such termination. The rights and obligations of the parties contained in Sections 4 through Section 14 (inclusive), and any other Section or provision which by its nature is intended to survive, will survive the expiration or termination of this Agreement.
(b) Either party may terminate this Agreement at any time, and for any reason upon thirty (30) days’ prior notice to the other party. In the event of such termination for convenience, unless otherwise mutually agreed to in writing by the parties, the Company shall cease any and all Services currently in progress for or on behalf of Customer, for which Customer shall owe the Company only those amounts actually incurred as of the date of termination provided, however, that if Customer has prepaid for any Services, and Customer is the party terminating for convenience, Customer shall have no right to refund of any prepaid amounts. In the event Customer terminates for convenience, Customer shall be liable for all amounts due and payable to the Company for the full term of any outstanding Orders or other agreements between the parties, which shall become immediately due and owing to the Company upon termination. In the event the Company terminates for convenience, the Company shall provide Customer a refund for any prepaid fees for Services, prorated from the effective date of termination.
(c) Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Software and Services and, without limiting Customer’s obligations under Section 10, Customer shall delete, destroy, or return all copies of the Software and Services and certify in writing to the Company that the Software and Services have been deleted or destroyed. Except as expressly set forth herein, no expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund.
By purchasing Software and Services from the Company, Customer agrees to allow the Company to use Customer’s name, logo, Feedback, and testimonials for marketing purposes, including publication on the Company’s website and other promotional materials. With respect to testimonials, Customer’s participation is voluntary, and Customer may withdraw Customer’s testimonial at any time by notifying the Company in writing.
Customer will comply with all export laws and regulations of the Applicable Law (as defined in Section 13, below), including without limitation of the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, or other U.S. or foreign agency or authority, and Customer will not export, or allow the export or re-export of any Software or Services in violation of any such laws or regulations. By installing or using any Software or Services, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country.
This Agreement is governed by and construed in accordance with the laws of the State of California, United States, as if performed wholly within such state and without giving effect to the principals of conflict of law (“Applicable Law”). The U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply. In the event of a dispute concerning this Agreement, Customer consents to the sole and exclusive personal jurisdiction of the courts of competency in the location where the Company’s principal executive offices are located.
Customer may not assign or transfer any rights or delegate any duties under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the Company and any attempt to do so is void and without effect. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. For the avoidance of doubt, the Company may freely assign any of its rights and/or delegate any of its obligations hereunder. This Master Services Agreement and its attachments (and any terms and documents incorporated herein by reference) and any associated EULA or other agreement entered into with the Company in connection with the Software or Services represents the parties’ entire agreement relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any communication between the parties relating to its subject matter. No modification to this Agreement will be binding unless in writing and signed by an authorized representative of each party. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. To the extent that any and all provisions of this Agreement (including its attachments) shall exclude or limit any statutory liability which, according to mandatory provisions of Applicable Law cannot be contractually excluded or limited by mutual agreement of the parties, then such provision shall be given only such effect, if any, as is permitted by the Applicable Law. Neither party will be responsible for any failure or delay in its performance under this Agreement, excluding Customer’s payment obligations, due to causes beyond its reasonable control, including, but not limited to, any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, earthquakes, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party.
1300 El Camino Real Suite 100
Menlo Park, CA 94025
(408) 320-0387
info@surgeventures.com