1. Introduction and Acceptance.
This Master Service Agreement (the “Agreement”) is a legal agreement between Client (either an individual or an entity) (“Client” or “Customer”) and Mavtron LLC (“Mavtron”) setting forth the terms and conditions under which Mavtron will grant Client the right to access and use certain online, web-based Mavtron software as a service described in the accompanying or online documentation (the “Service”).
BEFORE CLIENT AGREES TO THE TERMS AND CONDITIONS, CAREFULLY READ THIS AGREEMENT. IF CLIENT IS A CORPORATION, PARTNERSHIP LIMITED LIABILITY COMPANY OR OTHER ENTITY, THEN THE PERSON SIGNING THIS AGREEMENT ON THE ENTITY’S BEHALF REPRESENTS THAT HE OR SHE IS AUTHORIZED TO SIGN FOR AND BIND THE ENTITY. IF CLIENT IS NOT AUTHORIZED TO SIGN FOR AND BIND THE ENTITY, THEN DO NOT AGREE TO THE TERMS AND CONDITIONS AND DO NOT ACCESS OR USE THE SERVICE. This Agreement is effective between Customer and Mavtron as of the date of Customer’s accepting this Agreement (the “Effective Date”).
2. Provision of the Service; Trial Services.
2.1 Subject to the restrictions set forth below and the payment of all applicable fees as set forth in any applicable Order Form, Mavtron grants Client a limited, non-exclusive, non-transferable, non-sublicensable right to access the Service through Client salesforce.com instance (“SFDC Instance”) for Client use in connection with Client SFDC Instance for the number of users for which Client has paid applicable subscription fees for Client internal business purposes. An “Order Form” shall mean an ordering document executed by the parties that specifies the Services purchased by Customer under this Agreement.
2.2 An Affiliate may purchase the Service under this Agreement by entering into an Order Form that incorporates by reference the terms of this Agreement, and in each such case, all references in this Agreement to the Customer shall be deemed to refer to the applicable Affiliate for purposes of that Order Form. An “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2.3 Notwithstanding the foregoing and subject to the terms of this Agreement, Client may access and use the Service on a trial basis and free of charge (the “Trial Service”) for a period not to exceed thirty (30) calendar days (“Trial Period”). Client access to the Service will automatically terminate following such Trial Period, unless Client has paid in full all applicable fees in accordance with this Agreement. ANY TRIAL SERVICE SHALL BE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MAVTRON SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE TRIAL SERVICE. WITHOUT LIMITING THE FOREGOING, MAVTRON DOES NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT USE OF THE TRIAL SERVICE WILL MEET CLIENT REQUIREMENTS, (B) CLIENT USE OF THE TRIAL SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE TRIAL SERVICE WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 15 (LIMITATION OF LIABILITY), CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MAVTRON FOR ANY DAMAGES ARISING OUT OF CLIENT USE OF THE TRIAL SERVICE, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. Service Availability.
Client acknowledges that access to and use of the Service is dependent on the availability and proper functioning of Client SFDC Instance and that Mavtron has no control over Client SFDC Instance or the salesforce.com service. Mavtron disclaims responsibility and liability for any inability to access or use the Service, or degradation of the performance of the Service, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, Client SFDC Instance or other third party owned or controlled technology. Client is solely responsible for the configuration of Client SDFC Instance and all technology and services necessary to access and use the Internet and Client SFDC Instance.
4. Ownership.
4.1 The rights granted hereunder do not constitute a transfer or sale of Mavtrons’ or its licensors’ ownership rights in or to the Service, including, without limitation: (a) the Service and the applicable documentation; (b) Mavtrons’ name, logo, domain name, Mavtron product names and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “Mavtron Technology”). The Mavtron Technology is protected by applicable intellectual property laws, including, but without limitation, United States copyright laws and international treaties. Except for the rights granted above, Mavtron and its licensors retain all right, title and interest in and to Mavtron Technology, including all intellectual property rights therein.
4.2 As between Mavtron and Client, Client owns the information in Client SFDC Instance and Mavtron makes no claim of ownership to any information in Client SFDC Instance. Client acknowledge and agree that the Service will access and use Customer information from Client SFDC instances, but solely to the extent necessary for the Service to perform as intended. This access and use does not permit the Service, or Mavtron, to access or use such Customer information outside of Client SFDC instance or for any other purpose, except as expressly permitted in writing by Client. Client is solely responsible for the accuracy of all information in Client SFDC Instance.
5. Restrictions; Responsibilities; Feedback.
5.1 CLIENT MAY NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, CHARGE, ASSIGN, LOAN, USE FOR TIME SHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER THE SERVICE OR ANY OF CLIENT RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT. Client may not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Service by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any use restrictions or gain unauthorized access to the Service, computer systems or networks related to the Service; (d) modify or create derivative works based on the Service; (e) copy or distribute the Service; (f) allow use of the Service by anyone other than user(s) authorized and paid for by Client; (g) knowingly transmit through the Service unlawful, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Service other than as permitted in Section 2. Client acknowledges and consents that Mavtron may utilize technological license control features that can limit Client access to or use of Service to ensure Client compliance with this Agreement. “Package Usage Data” is data provided to Mavtron from Salesforce that indicates assigned licenses, active users, and other relevant usage data of the Service. Client acknowledges that Mavtron reserves the right to monitor Package Usage Data and if needed, take action to ensure Client compliance with this agreement.
5.2 Client is responsible for all activity occurring under Client user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Client use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Client shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Master Service Agreement Mavtron Service, and will notify Mavtron promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Mavtron immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by Client or Client users; and (iii) not impersonate another Mavtron user or provide false identity information to gain access to or use the Service. Client will not attempt to or use Client access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein.
5.3 Client grants to Mavtron a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Client users relating to the operation of Mavtrons’ Service.
6. Fees and Payment.
Client must pay all fees in advance for users to access and use the Service. Fees are described in the applicable Service listing on the Salesforce AppExchange. Mavtron will invoice Client annually or monthly, and Client will not be given access to the Service until Client has paid the applicable fees. The first annual fee shall start to accrue the earlier of (i) the day Client first accesses the Service, or (ii) the date set forth on an Order Form. Payment obligations are non-cancelable and all fees paid are non-refundable. Client may purchase additional user licenses at any time on a pro-rata basis so that all licenses will have the same expiration date. Fees for the Service are based on subscriptions purchased during a Subscription Term and not actual usage. The number of subscriptions purchased cannot be decreased during a Subscription Term. When an annual subscription is canceled, access to the Service will be removed at the renewal date. When a monthly subscription is canceled, access to the Service will be removed at the end of the current paid period. All amounts are quoted in and must be paid in US dollars. The fees do not include any taxes, levies or duties or similar government assessments of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement (collectively “Taxes”) and Client shall be solely responsible for all such Taxes other than taxes based solely on Mavtrons’ income. If Mavtron has the legal obligation to pay or collect Taxes for which Client is responsible under this section, Mavtron will invoice Client and Client will pay that amount unless Client provides Mavtron with a valid tax exemption certificate authorized by the appropriate taxing authority. In addition to any other rights granted to Mavtron herein, Mavtron reserves the right to suspend Client access to and use of the Service if Client fails to pay any amount owed on or before its due date. Client agrees that Client purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Mavtron regarding future functionality or features. CLIENT ACKNOWLEDGES THAT ANY UNPAID PAST DUE INVOICE(S) FROM ANY MAVTRON SERVICE MAY RESULT IN SUSPENSION OR CANCELATION OF SERVICE.
7. Term; Subscription Term.
This Agreement commences on the Effective Date and continues until all Order Forms have expired or been terminated. The Order Form will identify the period of time during which Customer is authorized to use the Service (the “Subscription Term”). Except as otherwise specified in the applicable Order Form, Subscription Terms shall automatically renew for additional successive term at the then-current list price, unless either party gives notice to the other party of non-renewal at least thirty (90) days prior to the expiration of the then-current Subscription Term.
8. Termination.
Either party shall have the right to terminate this Agreement in the event of a breach by the other party, which breach has not been cured within 30 days of the receipt of written notice thereof, except in the case of Client failure to pay any fees when due hereunder, which must be cured within 5 days after receipt of written notice from Mavtron. Upon any termination for cause by Client, Mavtron shall refund to Client and prepaid, unused fees applicable to the remaining portion of the subscription term following the effective date of termination. Either party may terminate this Agreement if the other party becomes the subject of an involuntary petition in bankruptcy or other proceeding relating to insolvency, receivership, or liquidation, if such petition is not dismissed within 60 days of filing. Upon termination of this Agreement for any reason, the rights granted to Client hereunder will immediately terminate and Client shall immediately discontinue any use of the Service. Termination shall not relieve Client of the obligation to pay any fees accrued or payable to Mavtron prior to the effective date of termination.
9. Support; Updates.
Mavtron will provide Client with email support for current versions of the Service. Mavtron will investigate all of Client questions and problems promptly. Client agrees to provide adequate information to Mavtron to assist in the investigation and to confirm that any problems have been resolved. Mavtron targets a support case response time of twenty-four (24) hours or less during weekdays, excluding holidays. Mavtron may, in its sole discretion, from time to time update the Service and may include such updates, free of charge, in the Service, provided Client has paid all applicable fees then due hereunder.
10. Confidentiality.
“Confidential Information” means information disclosed by either party to the other, whether orally, electronically or in writing, which is designated as confidential or would reasonably be considered to be confidential under the circumstances by a reasonable person. Mavtrons’ “Confidential Information” shall include, but not be limited to, Service, documentation, technology and technical information, product designs and business processes. Each party agrees to use Confidential Information solely to perform obligations and exercise rights under this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without the other’s prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own confidential information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party bears responsibility for safeguarding information that is publicly available without breach of an obligation owed to the disclosing party hereunder, obtained from third parties not under confidentiality restrictions, independently developed or known to the recipient without breach of an obligation owed to the disclosing party, or required to be disclosed by order of court or other governmental entity. If either party breaches, or threatens to breach the provisions of this Section 10, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief.
11. Customer Obligations and Warranties.
Client shall be solely responsible for all activities in connection with the Service that occur under Client username(s). Without limiting the generality of the foregoing, Client shall: (i) comply with all applicable laws and regulations in performing Client obligations hereunder; and (ii) be solely responsible for the accuracy, reliability, and quality of any information or data submitted by Client to Mavtron or processed using the Service. Client warrants that any data, content, or materials used, stored or created by Client using the Service will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party. In the event of any breach, or reasonably anticipated breach, of any of Client warranties or obligations, or if Client were to infringe or misappropriate Mavtrons’ intellectual property rights, in addition to any other remedies available at law or in equity, Mavtron will have the right to immediately, in Mavtrons’ sole discretion, suspend Client access to or use of the Service and/or terminate this Agreement, if deemed reasonably necessary by Mavtron to prevent any harm to Mavtron or its business.
12. Mavtron Warranties.
Mavtron warrants that: (i) it shall comply with all applicable laws and regulations in performing its obligations hereunder; (ii) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) it owns or otherwise has sufficient rights in the Service to grant to Client the rights to use the Service granted herein. Client exclusive remedy and Mavtrons’ entire liability for a breach of the warranties in this Section 12(i) and 12(ii) are those described in Section 8 (“Termination”) above and for a breach of the warranty in this Section 12(iii), the indemnification described in Section 14 (“Indemnification”) below.
13. WARRANTY DISCLAIMER.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS. CLIENT ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE SERVICE TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAVTRON DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE. MAVTRON DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET CLIENT REQUIREMENTS, BE UNINTERRUPTED, OR ERROR-FREE.
14. Indemnity.
14.1 Subject to this Agreement, Mavtron shall defend Client, at Mavtrons’ expense, against any claims made or brought against Client by third parties, arising out of a claim or demand alleging that Client use of the Service as contemplated hereunder infringes a U.S. patent, copyright or trademark of a third party or misappropriates such third party’s trade secrets. Further, Mavtron shall indemnify and hold Client harmless against all costs (including reasonable legal fees and expenses) finally awarded against Client by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Mavtron, in connection with such claims. Mavtron may, at its option and expense: (a) procure for Client the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Client access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current subscription term following the effective date of termination. Mavtron will have no liability to Client for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Client or of the use of the Service (i) after it has been modified by Client or a third party without Mavtrons’ prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Mavtron where the combination is the basis for the infringing activity.
14.2 Subject to this Agreement, Client shall defend Mavtron, at Client expense, against any claims made or brought against Mavtron by third parties, arising out of a claim or demand alleging that any data or content submitted by Client to Mavtron infringes, misappropriates, or violates any rights of a third party including any third party intellectual property rights. Further, Client shall indemnify and hold Mavtron harmless against all costs (including reasonable legal fees and expenses) finally awarded against Mavtron by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Client, in connection with such claims.
14.3 Promptly upon receiving notice of a claim or demand, the indemnified party shall (a) give the indemnifying party prompt written notice of the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party, at indemnifying party’s sole cost and expense, all reasonable assistance in the defense or settlement of such claim. The indemnifying party’s indemnification obligation shall be offset only to the extent its ability to defend or settle a claim is materially prejudiced by the indemnified party’s failure to provide prompt notice of the claim as required in subsection (a) of the aforementioned sentence.
14.4 This Section 14 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 14.
15. LIMITATION OF LIABILITY.
EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 14 (“INDEMNIFICATION”), UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA (EVEN IF THE SAME WERE JUDGED BY A COURT TO BE DIRECT LOSSES) OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 14 (“INDEMNIFICATION”), OR CLIENT BREACH OF THE RESTRICTIONS IN SECTION 5.1, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CLIENT FOR THE SERVICE FOR THE IMMEDIATELY PRECEDING 12 MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE.
16. Survival.
The following provisions will survive any expiration or termination of this Agreement: Sections 4 (Ownership), 5 (Restrictions; Responsibilities; Feedback), 6 (Fees and Payment), 8 (Termination), 10 (Confidentiality), 13 (Warranty Disclaimer), 14 (Indemnity), 15 (Limitation of Liability), 16 (Survival), 17 (3rd Party Dependencies), and 19 (General).
17. 3rd Party Dependencies.
Client acknowledges that access to and use of the Service may be dependent on the availability and proper functioning of other 3rd party services. Mavtron disclaims responsibility and liability for any inability to access or use the Service, or degradation of the performance of the Service, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, third party owned or controlled technology. Client is solely responsible for the configuration, maintenance, payment, and good standing of any and all technology or 3rd party solution providers necessary for the access and use of the Service.
18. Discounts.
Mavtron may apply discounts to the Service subscription cost. Client acknowledges that Mavtron maintains full discretion for the creation, application, and transfer of any such discount.
19. General.
This Agreement shall be governed by Michigan law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Lansing, Michigan USA. This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void. No text or information set forth on any other purchase order, preprinted form or document (other than an associated Mavtrons’ quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between Client and Mavtron. The failure of Mavtron to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by Mavtron in writing. This Agreement, together with any associated Mavtrons’ quote or invoice, comprises the entire agreement between Client and Mavtron and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or three (3) days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email if delivered by email with a fax confirmation sent on the same day. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure.
