Limited Subscription Agreement for Pre-Release Software Service

Last Updated: January 2, 2018



PLEASE READ THIS ENTIRE DOCUMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICE

Congratulations on being selected as a "Beta Participant" ("Participant", or "you") in the Millennium System International ("MSI") "Beta SaaS Pre-Release Program (the "Program") for its "Meevo 2" service (the "Service"). The "Effective Date" of this MSI Limited Subscription Agreement for Pre-Release Software Service (referred to as this "Agreement") and the date you become a "Participant", is the date you sign the Subscription Agreement. By signing the Subscription Agreement, you are agreeing to the terms set forth herein.

In addition to the terms, conditions, and obligations set forth in the Subscription Agreement and the Services Agreements (including the MSA), as a "Beta Participant", you also accept and are bound by the terms of this Agreement, so if you do not understand or agree to any one or more terms or conditions contained herein, before accessing or using the Service, please contact MSI with your questions. If there is any conflict between this Agreement and any Services Agreement, this Agreement shall take precedence. Capitalized terms not defined herein shall have the same meaning as ascribed to them in the Master "Software as a Service" Agreement (the MSA).

For good and valuable consideration, the sufficiency of which is hereby acknowledged, Participant agrees as follows:


1. Participant's General Obligations.

In addition to the terms and conditions set forth below, you understand and agree that your general obligations and promises to MSI include (i) your active use and evaluation of the Service; (ii) your prompt response to MSI's questions and submission of meaningful feedback as MSI requests; (iii) your giving MSI all rights to any feedback you submit; (iv) your promise not to share access (including MSI's e-learning and community site) or use of the Service with any unauthorized third party for any reason; and (v) your promise not to share documentation you receive regarding the Service (whether in written or electronic form) (referred to as "Documentation") with any unauthorized third-party.


2. Participation, Access, Use, and Compliance.

You hereby agree to participate in the Program and access and use the Service only in accordance with the terms and conditions of this Agreement.


3. Limited Subscription Agreement.

This is a limited subscription agreement. This means that you can only access and use the Service for a limited period of time. You do not own, license, or have any claim or rights to the Services, or to any related copyrights, trademarks, patents, or other intellectual property, all of which are the sole property of MSI. Subject to your compliance with this Agreement and with applicable law, MSI grants you a limited subscription to access and use the Service, solely and exclusively for the purpose of evaluating and testing same for MSI's benefit in accordance with the Program. You may not share access or use of the Service or otherwise give the Service (in whole or in part) with or to any person or entity, for any reason without MSI's prior and express written consent ("MSI Consent"). The Service and all Documentation is and remains at all times MSI's sole, proprietary, and confidential property, and MSI reserves any and all rights thereto. If you violate this Agreement, MSI will cancel this subscription and your right to use the Service, and you may be liable to MSI for its damages, including its reasonable attorney's fees.


4. Term and Termination.

The "Term" of this Agreement (which is the period you may participate in the Program), begins on the Effective Date, and ends when the Service becomes available to the general public.

  1. Upon termination of this Agreement, whether by you or by MSI, you are still obligated to comply with the terms and conditions herein, which terms and conditions shall survive termination, including, but not limited to your promises of confidentiality and your agreement to indemnify MSI for your breach. If you fail to comply with any one or more of its terms or conditions, this Agreement automatically terminates.
  2. You acknowledge that you understand and agree that, termination of this Agreement does not affect the Services Agreement, the Subscription Agreement, or any other agreement in connection with the Services, all of which remain in full force and effect.

5. MSI's Obligations; Limitations of Obligations.

During the Term, MSI will provide the Service to you, and will also provide technical support on terms and conditions in MSI's commercially reasonable discretion. You understand that this is a test program, and that MSI cannot make any promises or guarantees regarding the Service, including with regard to uptime, downtime, or support. Notwithstanding the foregoing, you may call MSI's Direct Support Line at (973) 402-8801 for technical support related to the Program. MSI reserves the right to alter or change the Services or any portion of the Services at any time, in whole or in part, for any reason. You understand and agree that MSI is under no obligation to release a final MEEVO service to the general public.


6. Participant's Obligations.

You agree to: (i) test and evaluate the Service in the manner and form required by MSI; (ii) familiarize yourself with the Documentation, and any other information and instructions provided to you in connection with the Service; (iii) use or test the Service only as directed; (iv) notify MSI of any and all functional flaws, errors, anomalies, and problems directly or indirectly associated with the Service that you discover in the manner and form requested by MSI; (v) provide MSI with reports via methods and formats designated by MSI; (vi) promptly respond to any and all reasonable inquiries, questionnaires, surveys, and other test documents MSI submits to you; and (vii) be responsible for all usual and customary incidental costs you incur in the ordinary course arising from your participation in the Program (i.e., internet and phone service).


7. Confidentiality.

You understand that as a result of your participation in the Program and access and use of the Service, you may or will have access to certain information that is of special and unique value to MSI, developed and acquired by and for MSI as result of its great effort and expense, and that any unauthorized use of or access to this confidential and proprietary information will cause great damage to MSI. You therefore understand, acknowledge and agree as follows: (i) the Service and Documentation, and information relating to the Service, contains trade secrets and confidential and proprietary information of a special and unique value to MSI, and this information is commercially valuable and vital to MSI's success; (ii) such information includes "Supportive Information" (as hereafter defined), and, documentation, communications and reports pursuant to this Agreement, and, to the extent you have access to same: MSI's sales and marketing plans and strategies, business plans, processes, patented information, customer lists and trade secrets that are unique to MSI's brand and program (all of the foregoing is collectively referred to as "Confidential Information"). Confidential Information does not include information which: (i) now or hereafter, through no act or failure to act on your part, becomes generally known or available to the public; (ii) is known to you prior to the time you received same from MSI as evidenced by your written records; or (iii) you acquire from a third party as a matter of right and without restriction on disclosure.

  1. Accordingly, you agree and promise that: (i) you will access and use the Service (including the Confidential Information) solely for purpose of your participation in the Program as it relates to the operation of your business and for no other reason, and will not disclose same to any person or entity for any reason without MSI's prior and specific written consent, and then only for MSI's benefit; (ii) only your employees or independent contractors with a bona fide need to know may access or use the Service, and then only for the purpose of doing their respective jobs and your participation in the Program; and (iii) you will ensure that your employees, independent contractors, and any other person or entity that is permitted to access or use the Service, will access or use same solely for the purposes required of your business, and limited to the purposes in this Agreement and will observe the confidentiality obligations set forth herein.

8. No Proprietary Rights.

You further understand and agree that (i) the Service (including all Confidential Information) is and remains MSI's sole, confidential, and proprietary property and that you have no rights in the Service other than as specifically set forth in this Agreement; (ii) you will take all reasonable actions to ensure that your employees, independent contractors, or agents with permitted access also use, access, and treat the Service as Confidential.


9. Supportive Information.

You understand and agree (i) that your feedback, ideas, modifications, suggestions, improvements, and the like (written or oral) regarding the Service or the Program ("Supportive Information") is and at all times remains MSI's sole and exclusive property; (ii) to assign, and hereby assign to MSI, all right, title, and interest worldwide and in perpetuity in the Supportive Information and all related intellectual property rights, and to assist MSI, at no cost to you, in perfecting and enforcing such assignment and rights for the benefit of MSI; (iii) that MSI may disclose or use Supportive Information for any purposes whatsoever; and (iv) Supportive Information is considered part of the Service. You further agree that Supportive Information is considered Confidential Information.


10. Breach; Indemnification.

If you breach any one or more term or condition of this Agreement, in addition to all of its available legal remedies, MSI will remove all of your functionality and capability to access and use the Service. You will be liable to MSI for all of its costs and expenses related to such removal and for any liabilities or damages MSI incurs as a result of your violation of this Agreement. You hereby indemnify, save, defend, and hold MSI harmless from and against any and all claims, losses, liabilities, obligations, damages, penalties, judgments, suits, costs, expenses or disbursements of any kind including, without limitation, reasonable attorneys' fees, court costs, and MSI's costs and expenses resulting from MSI's efforts to collect these sums (collectively, "Damages") incurred by MSI resulting from your breach of this Agreement.


11. Nondisparagement.

You agree that you shall not disparage MSI, or make any statement or comment, whether oral or written, in any medium (including in social media) about or concerning MSI, especially, but in no way by limitation, if such a statement or comment is intended to or could have a disparaging or negative interpretation or effect on MSI's business, goodwill, reputation, products or services. You understand and agree that if you violate this provision, you will be liable to MSI immediately and without further notice, for any and all Damages arising therefrom.


12. No Warranty or Guarantee.

The Service and Documentation is provided to you on an "AS IS" and "AS AVAILABLE" basis, solely for use in accordance with this Agreement. MSI DOES NOT MAKE ANY WARRANTITES OF ANY KIND RELATED TO THE SERVICE OR DOCUMENTATION EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MSI DOES NOT WARRANT OR GUARANTEE THAT YOUR USE OF THE SERVICE WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICE IS OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS. THE SERVICE MAY CONTAIN ERRORS, BUGS AND OTHER PROBLEMS THAT MAY CAUSE SYSTEM OR OTHER FAILURES AND DATA LOSS, AND THAT THE TESTING AND QUALITY ASSURANCE OF THE SERVICE MAY NOT YET BE COMPLETED. ACCORDINGLY, ANY USE OR RELIANCE ON THE SERVICE IS AT YOUR OWN RISK AND MSI IS NOT RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING DAMAGES TO DATA, RESULTING FROM YOUR USE OF THE SERVICE.


13. Limitation of Remedies.

MSI's entire liability to you, and your only remedy in connection with defective or non-performing Service or in connection with this Agreement, is to terminate this Agreement. At MSI's option, prior to its release of the Service to the general public, MSI may provide you with a replacement Service or restore your prior version of the Service. IN NO EVENT IS MSI LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, OR YOUR USE OF, OR INABILITY TO USE THE SERVICE, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA, OR INTERRUPTION OF SERVICE.


14. Waiver.

A waiver of any breach or default of this Agreement is not a continuing waiver or a waiver of any other breach or default, but shall apply solely to the instance to which such waiver is directed.


15. No Assignment.

MSI may assign this Agreement or delegate any rights or obligations herein. You may not assign this Agreement or any rights hereunder to any third party. If you sell the business that is the Participant, you understand and agree that this Agreement is not transferable and cannot be a part of the sale. The purchaser of the Participant business must secure a separate Agreement from MSI for access to and use of the Service. Any attempted transfer or assignment in violation of this Agreement is null and void and of no effect, and will result in a termination of this Agreement by MSI.


16. Severability.

If any part of this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision herein, all of which shall remain in full force and effect.


17. Governing Law.

The laws of the State of New Jersey (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions contemplated herein, including, without limitation, its interpretation, construction, performance, and enforcement. Each party hereby consents to the exclusive jurisdiction of the State or Federal Courts located in the State of New Jersey, as proper venue for the resolution of any dispute arising out of or relating to this Agreement and waives any objection that it may now or later have to governing law or jurisdiction.


18. Entire Agreement.

This Agreement represents the entire agreement between you and MSI regarding the Services and the Program, and supersedes any and all prior agreements, whether written or oral, regarding the subject matter hereof, and may not be modified or amended except upon MSI's Consent.


19. References.

All terms and words used in this Agreement, regardless of the sense or gender in which they are used, shall be deemed to include each other sense and gender unless the context requires otherwise. Whenever the context may require, the singular forms of nouns, pronouns, and verbs shall include the plural and vice versa. All references to MSI in this Agreement shall mean to include MSI's officers, directors, shareholders, employees, agents, representatives, subsidiaries, divisions, affiliates, predecessors, successors or assigns.


20. Subscription Agreement.

The Subscription Agreement is incorporated by reference as if fully set forth herein. If there is any conflict between the terms of this Agreement and the Subscription Agreement, during the Term of this Agreement, this Agreement shall govern.


21. Authority to Bind.

By signing the Subscription Agreement, you are confirming: (i) your acceptance of the terms and conditions of this Agreement and (ii) that you are duly authorized to execute contracts on behalf of the Participant and bind the Participant to the terms herein.