Terms of Service
Last Updated: March 9, 2018
Thank you for choosing Meevo! We appreciate your business!
MSI is an industry leader offering online business management tools for the beauty and wellness space. This is your agreement to comply with MSI's general terms and conditions (referred to as these "Terms and Conditions", or these "Terms" and sometimes referred to as this "Agreement") governing your access to and use of the proprietary, cloud based "Meevo" "Software as a Service" offered by Harms Software Inc., dba Millennium Systems International ("MSI", "we", "our", or "us"), and, your access to and use of any other MSI cloud products or services including, but not limited, to Pre-Release Services, MSI's SMS Messaging Service, Meevo MSI Engage and any MSI Apps. The term "Services", which includes the foregoing products and services, is further defined below. It is important that you review these Terms carefully, because they document your legal rights and obligations in connection with your access to and/or use of the Services, and when you access/use the Services, you are agreeing to comply with these Terms.
BY ACCESSING AND/OR USING THE SERVICES, YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE SERVICES.
MSI reserves the right to modify these Terms and Conditions at any time, in its sole discretion, and without notice, so you should check these Terms for changes from time to time. Your access and use of the Services after any changes means that you accept and agree to the changed Terms. If you do not agree with any one or more changes, you are not authorized to access or use the Services. If you do not agree to any one or more changes, do not access, or use the Services.
If you are entering this Agreement on behalf of any other person, business or entity, you represent to MSI that you have the full right and authority to bind that entity.
1.1 For purposes of this Agreement, the following words and phrases shall have the meanings set forth below:
(a) “Access” or “access” means your access to the Services in accordance with MSI’s form of Subscription Agreement.
(b) “Additional Products” means any product or service that is not one of the Services (for example, if you purchase a Computer via MSI).
(c) “Additional Products” means any product or service that is not one of the Services (for example, if you purchase a Computer via MSI).
(d) “Additional Product Terms” means terms and conditions imposed by MSI in connection with Additional Products. Additional Product Terms must be in writing and are not enforceable absent MSI Consent.
(e) “Affiliate” means any person or entity that directly or indirectly controls, is controlled by, or is under common control with you, that is permitted to receive the Services, including all business locations. For purposes of these Terms, Affiliate includes, by way of example, but not limitation, your employees, contractors, representatives, and end users. “Control” means you oversee direction and management policies, through ownership or other contractual arrangement. Any references in these Terms or any Services Agreements mean to include Affiliates.
(f) “Aggregated Data” means information (excluding PII) anonymized, gathered, derived or summarized by or through the operation of the Services, developed by or on MSI’s behalf.
(g) “Business Associate Agreement” or “BAA” means an agreement required pursuant to HIPAA between a “covered entity” and “business associate” (as such terms are defined by HIPAA) ensuring security of data assets and PHI (as hereinafter defined), where the business associate performs services, functions, or activities requiring access to PHI.
(h) “Claims” include, by way of example, but not limitation, any action, litigation, or other claim by a third party arising directly or indirectly from: Your Breach (as defined herein), any personal injury or property damage resulting from Your negligence or willful misconduct, misuse of the Services, or use of the Services with other services, software, or programs incompatible with the Services, or otherwise contraindicated pursuant to the Documentation, or, any claim of libel, violation of privacy, unfair competition, or patent, copyright, trademark or other intellectual property infringement.
(i) “Computer” means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
(j) “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential, including information that is marked or identified as confidential, and if not marked or identified as confidential, information that should reasonably have been understood by the Receiving Party to be proprietary and confidential because of legends or other markings, or given the nature of the information itself and circumstances of disclosure. Confidential Information includes, without limitation, information relating to products, services, technology, research, development, know-how, specifications, and concepts; as well as information of business and commercial nature, including, Your Data (as defined herein), MSI Data (as defined herein), Pre-Existing Materials (as defined herein), Documentation (as defined herein), information relating to the Services and Documentation, software and related source code and object code utilized in connection with the Services, information regarding software or cloud service plans, designs, costs, pricing, names, information regarding a party’s business opportunities, personnel, customers (including PII), affiliates, sales and marketing plans and strategies, inventories, new markets, new products, technical information, financial, tax, and related information, business plans, processes, patented information, customer lists and trade secrets unique to a party’s brand, and any other non-public or technical or business information and data. Confidential Information does not include information which: (i) now or hereafter, through no act or failure to act by the Receiving Party, becomes generally known or available to the public; (ii) is known to the Receiving Party prior to the time the Receiving Party received same from MSI as evidenced by written records; or (iii) the Receiving Party acquired from a third party as a matter of right and without restriction on disclosure.
(k) “Content” means all templates and themes created by MSI, standard or otherwise, and text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, and computer code contained in or about the Services, including design, structure, selection, coordination, arrangement, expression, and its “look and feel”.
(l) “Data” (or “Your Data” or “End User Data”) means information collected, obtained, used in, stored, generated, or produced as the result of access to and use of the Services; including credit card numbers, expiration dates, billing addresses, and cardholder names (the foregoing is sometimes referred to as “Cardholder Data”).
(m) "Documentation" means all written, electronic and other materials supplied by MSI regarding the Services, including user manuals and/or training guides in connection with access, functionality, operation and features of the Services; technical specifications explaining and detailing the design, capabilities and performance standards for the Services; and any other writings or other materials provided by MSI for use in conjunction with the testing and use of the Services.
(n) “Effective Date” means the date that you sign the Subscription Agreement.
(o) “End User” means you, and/or the person or business that subscribes to the Services, including any persons, businesses, or Affiliates who access and uses the Services with you, through you, or for you.
(p) “Feedback” means your suggestions, enhancement requests, recommendations, proposals, correction or other feedback or information you provide regarding the Services or MSI's business.
(q) “Fees” means the fees you pay MSI to access and use the Services and Third Party Services, located at www.millemmiumsi.com/pricing-terms.
(r) “Force Majeure Event” means any foreseen or unforeseen act or event that: (i) prevents a party (the “Nonperforming Party”), in whole or in part, from (1) performing its obligations to the other party (the “Performing Party”); or (2) satisfying any conditions to the Performing Party’s obligations; (ii) is beyond the reasonable control of and not the fault of the Nonperforming Party; and (iii) the Nonperforming Party is unable to avoid or overcome the act or event by the exercise of due diligence. By way of example, but not limitation, Force Majeure Events include acts of God, acts of public enemies, acts of terror, acts of war, government, military actions, flood, fire, civil unrest or disturbance, strikes or other labor problems or difficulties, cyber-attacks, or malicious acts, including attacks on or through the Internet, floods, lightning, drought, earthquakes, fires, volcanic eruptions, landslides, hurricanes, cyclones, typhoons, tornados, explosions, epidemics, famines or plagues, shipwrecks, shortages of raw material, strike or similar labor difficulty, compliance with order or rule of any court, governmental, or regulatory authority. A Force Majeure Event excludes economic hardship, changes in market conditions or insufficiency of funds.
(s) “HIPAA” means the Health Insurance Portability and Accountability Act passed by Congress in 1996. Among other things, HIPAA imposed industry-wide standards for health care information on electronic billing and other processes and rules to protect PHI for IP Address.
(t) “Indemnity” means a promise to hold another party harmless from harm and money damages that party incurs as a result of something you have done (or not done), or if that party is sued by a third party as a result of something you have done (or not done).
(u) “IP Address” means a unique string of numbers that identifies a device on the internet or a local network that allows a system to be recognized by other systems connected via internet protocol.
(v) “Liabilities” means claims, losses, liabilities, obligations, damages, penalties, judgments, suits, costs, expenses or disbursements of any kind including, without limitation, reasonable attorneys' fees and expenses.
(x) “MSI Account” means the account MSI that uniquely identifies you in connection with your access to and use of the Services.
(y) “MSI Consent” means the express and specific prior written consent of a duly authorized representative of MSI, duly authorized to bind MSI.
(z) “MSI Data” means: (i) “Pre-existing Materials” (as defined herein); (ii) Aggregated Data (as defined herein); (iii) information and data collected through applications supported by Meevo (excluding Your Data); and (iv) any information collected by MSI independently without use of any of Your Data.
(aa) “MSI IP” means MSI's proprietary and intellectual property, including MSI's proprietary and intellectual property rights in and to the Services, including, without limitation, source code, object code, trade secrets, copyrights, trademarks, patents, functionality and business methodology embodied therein and the like, including any source code, object code, or other intellectual property developed by MSI relating to the Services that is not IP owned by an End User.
(bb) “Order Form” or “Order” means the document (written or electronic) prepared by MSI in the form of an order, quote, proposal, invoice, or other format, that specifies the Services you subscribe to, the fees for the Services, and other salient information in connection with your Subscription. The Order is attached to and part of the Subscription Agreement.
(cc) “PCI DSS” (Payment Card Industry Data Security Standard) means information security standards mandated by the major credit card brands and administered by the Payment Card Industry Security Council, developed to increase controls regarding cardholder data, and ensure compliance and secure environments by businesses that accept, process, store, or transmit credit card information, detailed at www.pcisecuritystandards.org/, as may be updated from time to time.
(dd) “PHI” means personal health information pursuant to HIPAA and applicable rules and regulations, broadly interpreted to include information about (or linked to) an individual’s health, health status, health care, medical record, or payment for health care.
(ee) “PII” means personally identifiable information collected, obtained, used in, stored, generated, or produced as the result of use of the Services, that may specifically identify an individual, distinguish one individual from another, contact, or locate an individual, or identify an individual in context, including personal health information, social security numbers or other government issued numbers, dates of birth, addresses, telephone numbers, maiden names, email addresses, credit card information, or a person’s name in combination with any other of the foregoing elements.
(ff) “Pre-existing Materials” means proprietary software, services (including cloud services), source code, object code, and related processes, instructions, methods, and techniques that have been previously developed by MSI, excluding Your Data.
(gg) “Pre-Release Services” means services offered by MSI that have not yet been released to the general public.
(hh) “Pre-Release Terms and Conditions” means the additional terms and conditions governing your use of and access to Pre-Release Services, located at www.millenniumsi.com/pre-release-agreement. These Terms and Conditions are incorporated by this reference into the Pre-Release Terms and Conditions, as if fully set forth in said Pre-Release Terms and Conditions.
(jj) "Professional Services" means project management, custom development and other services provided by MSI, which Professional Services are outside the scope of these Terms and subject to separate agreements and fees.
(kk) "Project Contact" is a party you appoint who will be the primary coordinator and central point of contact for MSI.
(ll) “Service Levels” means the level of services (including support and maintenance services) MSI will provide to you, based upon the Meevo edition you choose to subscribe to. Service Levels are set forth in the Service Level Agreement (as defined herein).
(mm) “Service Level Agreement” (or “SLA”) is the agreement between you and MSI that describes the levels of service MSI will provide to you, depending upon the edition of Meevo you choose to subscribe to. The SLA is set forth in Section 16 of these Terms.
(nn) “Services” means MSI's "Software as a Service" (SaaS) and related services (including Technical Support Services) that support the availability, function, and performance of the Meevo 2 in accordance with the specifications set forth in the Documentation. Services include "updates," but exclude "upgrades." "Updates" generally include enhancements, patches or small fixes that resolve specific issues. Updates are generally released quarterly and will include both patches released from the last update, as well as enhancements. "Upgrades" means new modules or add-ons that substantially enhance the service offering of Meevo, impact the version of the application, and are generally subject to additional costs. All patches and updates are cumulative, and can only be excepted in sequence for deployment. Services do not include Professional Services (as defined herein).
(qq) “Subscription” means the non-exclusive, non-transferable, non-revocable and limited right to access, use, and "subscribe" to the Services in accordance with these Terms and Conditions, the Subscription Agreement, and other Services Agreements.
(rr) "Subscription Agreement" is the separate agreement required to grant the right to subscribe to the Services, that contains the Order Form and specific terms of your subscription to the Services.
(ss) “Support and Maintenance Services” means MSI's standard technical support and maintenance services available to you when you subscribe to the Services, located at www.millenniumsi.com/technical-support-terms.
(tt) “Taxes” means all taxes, levies, duties, or similar governmental assessments of any kind or nature, including, by way of example, sales, use, or withholding taxes.
(uu) "Term" means the period of time in which you are authorized to subscribe to the Services, beginning on the Effective Date, and ending on the date either you or MSI terminates Subscription Agreement.
(vv) “Third Party Services” means certain additional services MSI agrees may be offered by Third Party Service Vendors that support or enhance the functionality of the Services (for example, payment processors), and for which you contract separately, subject to separate terms, conditions, and fees.
(ww) “Third Party Service Vendors” or "Third Party Service Providers" means companies that deliver Third Party Services.
(xx) "Use" or "using" means to access, use, or otherwise benefit from using the functionality of the Services, and includes use by you, or any permitted Affiliates.
(yy) "You" ("you") means the subscriber accessing and using the Services, including Affiliates. For purposes of these Terms, "you" means you the subscriber accessing and using the Services, any end user of the Services by or through you, and/or anyone that accesses the Services by, through, or with you, including your Affiliates. If you are entering this Agreement on behalf of any other person, business or entity, references to "you" in these Terms or in any Services Agreement includes said business or entity.
(zz) "Your Breach" means your breach, violation or non-compliance with any term or condition of these Terms or any Services Agreement (as defined herein).
(aaa) "Your Data" means data, information or material you submit in connection with use of the Services, including Cardholder Data and PII, and excluding Aggregated Data.
(bbb) "Your Marks" means Your business name(s), trademarks, copyrights, service marks or logos.
2. GRANT; SUBSCRIPTION TERMS+
2.1 Subscription to Access and Use the Services.
Subject to your compliance with these Terms and the other Services Agreements, MSI hereby grants you a non-assignable, limited privilege to subscribe to the Services during the Term. Specific terms and conditions regarding your subscription to the Services are set forth in the Subscription Agreement.
(a) You understand and agree that your right to access and use the Services is conditioned upon your compliance with these Terms, the Services Agreements, and any other agreement between you and MSI. Your compliance includes, but is not limited to, maintaining your account with MSI in good standing, timely payment of any fees due MSI, and compliance with Applicable Law, and laws applicable to your specific industry.
(b) You are subscribing to the Services. This means you have the right to access and use the Services, but you do not own the Services, which are and remain MSI’s sole property. MSI reserves all rights that are not expressly granted to you in these Terms. MSI is the beneficiary of these Terms and the Services Agreements, with the right to rely on and directly enforce the terms herein.
(c) Your MSI Account is your responsibility. You are responsible for compliance by your employees, contractors, applicable law, and laws including privacy laws and laws regarding data and personal information.
(d) If your MSI is no longer in good standing as a result of non-payment or habitual late payment, or if you violate any of these Terms, in addition to its other remedies, MSI, at its election, may suspend your account, revoke these Terms, and terminate your right to use the Services.
(e) You agree to provide MSI with complete, accurate, and updated information regarding your MSI Account, including your legal company name, street address, e-mail address, phone and facsimile number, and such other contact information and other information as MSI may reasonably request. You agree to promptly notify MSI in writing of any changes regarding your MSI account.
(f) You are responsible for all hardware, telecommunications, internet and other services required for use of the Services.
(g) MSI may, at any time, change modify, update, upgrade, or discontinue the Services, or any one or more components, features, or functions of the Services.
(h) You will be liable to MSI for its damages, including its reasonable attorneys' fees, resulting from your unauthorized use or transfer of the Services or your breach of these Terms.
2.2 Changes to these Terms; Additional Terms.
MSI may change these Terms at any time (“Modified Terms”). Modified Terms will be published on MSI’s website (www.millenniumsi.com) and/or via other electronic communication to MSI End Users. Modified Terms are effective when published on MSI’s website. Each time you access the Services, you reaffirm your acceptance of these Terms and any Modified License Terms. It is your responsibility to read any Modified Terms. If you do not agree with the Modified License Terms, your only remedy is not to access the Services and immediately notify MSI in writing that you wish to terminate your Subscription. In some circumstances, MSI may determine that your access to and use of the Services may be subject to certain additional terms and conditions (“Additional Terms”). Additional Terms will be set forth in the applicable Services Agreement and, to the extent any such Additional Terms are inconsistent with or conflict with these Terms, the Additional Terms will control. No Additional Terms will be enforceable absent MSI Consent.
2.4 Service Levels; SLA.
MSI will deliver the Services (including uptime and related requirements) in accordance with the MSI's Service Level Agreement set forth at here.
2.5 Control and Location of Services.
MSI controls, manages, and supervises method and means of providing the Services.
2.6 Data Management and Data Security.
MSI will maintain industry standard administrative, technical, and organizational safeguards and security measures to transfer, store, and process your Data. These measures are designed to protect the integrity of your Data, and guard against the unauthorized or unlawful access to, use, and processing of your Data. MSI will maintain PCI DSS compliance for the components of the Services that store Cardholder Data.
2.6 Data Management and Data Security.
MSI will maintain industry standard administrative, technical, and organizational safeguards and security measures to transfer, store, and process your Data. These measures are designed to protect the integrity of your Data, and guard against the unauthorized or unlawful access to, use, and processing of your Data. MSI will maintain PCI DSS compliance for the components of the Services that store Cardholder Data.
2.7 Account Monitoring.
To ensure compliance with these Terms and to determine any unauthorized access or use of the Services, MSI may from time to time, monitor your access to and use of the Services via the internet to a secure server. Only information that distinguishes your business as a unique entity including your business name, customer identification number and IP Address will be transmitted for this purpose. No sales, financial, or other information, confidential or otherwise, will be transmitted to this server.
2.8 Ownership of IP and Data.
Except with respect to Your Data which remains your property as between you and MSI, MSI specifically retains all right, title and interest in and to all proprietary and intellectual property rights in and to the Services, including without limitation, source code, object code, trade secrets, copyrights, trademarks, patents, functionality and business methodology embodied therein, and the like, photos or other images incorporated into the Services, and further including any source code, object code, or other intellectual property developed by MSI relating to, or in connection with your access or use, or its delivery of the Services. All rights not expressly granted to you in these Terms are specifically reserved by MSI.
2.9 Prohibitions on Use.
You understand and agree to the following "Prohibitions on Use" of the Services:
(a) YOU MAY NOT USE, COPY, MODIFY, OR TRANSFER ALL OR ANY PORTION OF THE SERVICES OR THE DOCUMENTATION. MSI permits you to access and use the Services only in accordance with these Terms and the applicable Services Agreements. To the extent that the Services may be used to reproduce data or reports, and similar materials, you understand and agree that your access and use is limited to reproduction of said materials solely for your use in your business. You understand and agree that the Services may not be shared, installed, or used concurrently on different Computers without MSI's Consent, and that a separate Subscription Agreement is required for each location the Services are accessed and used. If you are uncertain about your right to copy or permit access to the Services or to any material, you should contact an attorney.
(b) You shall not, and shall use best efforts to ensure any person or entity that accesses the Services does not: (i) make the Services or the Documentation publicly available or grant Access to the Services or the Documentation in any manner not explicitly authorized herein; (ii) copy, adapt, analyze, decompile, disassemble, reverse engineer, modify, translate (or the like) the Services or the Documentation; (iii) remove or transfer Access to the Services without MSI's Consent and the termination or transfer of the applicable Subscription Agreement or, where necessary, the execution of a new Subscription Agreement; (iv) transmit by any media, copy, or otherwise permanently or temporarily reproduce, in whole or in part, the Services or the Documentation; or (v) re-use, distribute, or permit use or re-use of the Services by any third party.
(c) You will not (i) use the Services or refer to MSI directly or indirectly in any written or electronic communications, articles, advertisements, sales presentations, news releases or releases of any kind or nature to any third party absent MSI's Consent; (ii) you will access and use the Services in a single location, and only through the interfaces and protocols provided by or authorized by MSI; (iii) you agree to exercise reasonable efforts to prevent and protect the Services and the Documentation from unauthorized disclosure or use by any third parties; and (iv) if you learn of any unauthorized use or disclosure of the Services, you will promptly notify MSI in writing.
(d) You may not by any means, methodology or process, access, acquire, copy or monitor any portion of the Services or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Services or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services.
(e) You may not attempt to gain unauthorized access to any portion or feature of the Services, or any other systems or networks connected to the Services or to any MSI server, or to any of the services offered on or through the Services, by hacking, password "mining" or any other illegitimate means.
(f) You may not probe, scan or test the vulnerability of the Services or any network connected to the Services, or breach the security or authentication measures on the Services or any network connected to the Services. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Services, or any other customer of MSI, including any MSI account, or any account that is not your account, to its source, or exploit the Services or any service or information made available or offered by or through the Services, in any way where the purpose is to reveal any information, including, but not limited to PII (excluding your personal information).
(g) You will not engage in any activity that may interfere with the proper working of the Services or any transaction being conducted via the Services, or with any other person's or entity's use of the Services.
(h) You may not by any means, methodology or process, disguise the origin of any message or transmittal you send to MSI on or through the Services or any service offered on or through the Services, or pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
(i) You understand that you may not use the Services or any Content for any purpose that is unlawful or prohibited by these Terms, Applicable Law, or laws applicable to your specific industry, or to solicit the performance of any illegal activity or other activity which infringes the rights of MSI or others.
(j) You will not authorize or assist any third party to engage in any of the foregoing restricted acts.
2.10 Delivery of Services; Suspension.
MSI will deliver the Services in accordance with these Terms, and the applicable Services Agreements, and subject to the following terms and conditions.
(a) MSI may, from time to time, temporarily suspend your access to the Services for scheduled maintenance or emergencies.
(b) MSI reserves the right to suspend Services in whole or in part: (i) during planned downtime as provided in the SLA; (ii) upon a Force Majeure Event; or (iii) if MSI reasonably believes any malicious software, cloud, or other service is being used in connection with Your account.
(c) MSI reserves the right to change, suspend or discontinue any features, components or functions of the Services at any time. MSI will notify you [by email] if MSI makes any material changes to the Services.
(d) Anything in these Terms or the Services Documents to the contrary notwithstanding, MSI has no obligation to update or enhance any Services or to produce or release new versions of the Services.
(e) You will access and use the Services in a single location, and only through the interfaces and protocols provided by or authorized by MSI. You agree to exercise reasonable efforts to prevent and protect the Services and the Documentation from unauthorized disclosure or use by any third parties, and if you learn of any unauthorized use or disclosure, you agree to promptly notify MSI in writing.
These Terms apply to any and all updates or upgrades to the Services, together with any other additional terms and conditions MSI may impose in connection with such updates or upgrades. In order to access and use an Update, you must possess a valid Subscription to the previous version. In order to receive an update, you must voluntarily terminate your right to use any previous versions of the Services on your Computer, except you may use the previous version only to assist you in the transition to the Update, and, only if: (i) the previous version(s) are on the same Computer; (ii) the previous versions (or copies thereof) are not transferred to any other party or Computer (unless all copies of the Update are also transferred to such party or Computer); and (iii) you acknowledge and agree MSI is not obligated to support previous versions of the Services terminates when the Update is available.
2.12 Feedback License Grant to MSI.
You hereby grant to MSI a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free right, license, and subscription to: (i) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any Feedback; and (ii) to use Your Marks in connection with providing the Services and for marketing and promotional purposes in connection with MSI's business. MSI agrees that any use by MSI of any of Your Marks will be limited to the foregoing purpose and be used only in a positive light.
If you are not fully satisfied with the Services, subject to the following, you may request a refund within [sixty (60)] days of the date of purchase. This refund applies only to up front, paid in full purchases of the entire Services package, and not if you elected to pay monthly or other incremental fees pursuant to any subscription plan or payment schedule, or any other payment plans, subscription based agreements, services, trainings, addons, workstation licenses, upgrades, or other products or services you obtain or may obtain from MSI, all of which are non-refundable and expressly excluded. Computer hardware, point-of sale equipment, and peripherals are separate purchases by you also expressly excluded, and may be subject to separate manufacturer warranties.
2.14 Support and Maintenance Services.
Your subscription to the Services includes MSI's standard Support and Maintenance Services.
2.15 Pre-Release Services.
MSI may offer you the opportunity to access and use Pre-Release Services from time to time. You understand and agree that your access to and use of the Pre-Release Services means you agree that such Services are provided to you, and you accept such Services "AS IS WHERE IS" with no representations or warranties of any kind or nature, and that MSI is not responsible or liable to you or any third party for any damages you may incur as a result of your access to or use of the Pre-Release Services. Terms and conditions regarding Pre-Release Services are located at here
2.16 Third Party Services.
MSI does not control Third Party Services, which are provided solely as a convenience to you. MSI is not responsible for and does not endorse the content of any Third Party Services, including any information or materials contained in or about such Third Party Services. Third Party Services are not subject to any of the promises, representations, warranties, service level commitments or other MSI obligations set forth in these Terms or any Services Agreements. MSI's offering you Third Party Services does not mean MSI endorses said Services or has any affiliation with the Third Party Services Vendor other than an agreement to offer the Third Party Services to you. MSI may receive consideration from Third Party Service Vendors. MSI is not obligated to monitor or maintain Third Party Services, and may temporarily or permanently suspend such Services at any time. When you agree to use Third Party Services, you are expressly permitting MSI to deliver or grant access to Your Data or other Confidential Information to such Third Party Services Vendor as required to enable your access to and use of such Third Party Services. Your access to and use of Third Party Services is at your own risk, and subject to the terms and conditions (including privacy policies) of such Third Party Service Vendors.
2.17 Your Work Performed at Your Risk.
You acknowledge that the Services (including, but not limited to the Pre-Release Services") may contain bugs, errors, and other problems that could cause system or other failures and data loss. Accordingly, you acknowledge that any work you perform with the Services or any product associated with the Services is done entirely at your own risk, and MSI is not responsible for any losses or data damage resulting from your use of the Services.
2.18 Incorporation by Reference of Services Agreements.
Anything in these Terms or any Services Agreement to the contrary notwithstanding, absent MSI Consent, these Terms are incorporated to each of the Services Agreements as if fully set forth in each such Agreement. To the extent there is any inconsistency, conflict or ambiguity between these terms and any such Services Agreement, absent MSI Consent to the contrary, the terms of the applicable Services Agreement shall govern.
2.19 Direct or Indirect Acts.
Any references to any actions or restrictions imposed upon you pursuant to these Terms, shall mean to include your direct or indirect acts.
3. TERMINATION; EFFECT OF TERMINATION+
(a) The Term begins on the Effective Date, and, unless earlier terminated in accordance with the terms herein or otherwise provided in the applicable Services Agreement, continues on a month to month basis, for so long as you subscribe to the Services.
(a) Either you or MSI may terminate your Subscription without cause upon thirty (30) days written notice.
(b) MSI may terminate your Subscription upon thirty (30) days' notice if you fail to make any payment of fees as and when due pursuant to these Terms or any Services Agreement. Non-payment is a material breach of these Terms and the other Services Agreements.
(c) If you breach or otherwise violate these Terms, or any term in any Services Agreement, MSI may immediately terminate your Subscription and all access to the Services.
(d) MSI has the right to cancel your subscription and immediately suspend or terminate the Services (or any component of the Services) at any time and without notice, if: (i) we detect harmful or illegal activity under your Account; (ii) if we reasonably believe that any activity or use of Services in connection with your Account violates these Terms or any Services Agreement, the intellectual property rights of any third party or any Applicable Law; (iii) if such activity is otherwise disruptive or harmful to MSI or any third party; or (iv) we are required to do so by law or order of a court of competent jurisdiction or other agency having jurisdiction.
3.3 Effect of Termination.
Your Subscription and right to access and use the Services automatically terminates if you fail to comply with any one or more of these Terms, or any material term of any Services Agreement. Termination of your Subscription in no way relieves you of any obligation to pay fees to MSI when due. Upon termination of your Subscription for any reason, you no longer have any right to access or use the Services, however, your monetary and non-monetary obligations in connection with the Services and indemnification for Your Breach survive termination. Upon termination of your Subscription for any reason: (i) you must immediately pay all unpaid fees to MSI; (ii) all Orders and other Services Agreements (including Support and Maintenance Agreement) automatically terminate and are null and void and of no force or effect; (iii) your right to Access, use and otherwise to subscribe to the Services cease and you must cease accessing and/or using the Services; (iv) except as otherwise set forth in these Terms, MSI has no obligation to maintain your MSI Account or to retain or forward any Data to you or any third party, unless and except as required by Applicable Law.
3.4 Transition Services; Final Export.
Provided that you are not in breach of these Terms or any Services Agreement, and further provided all unpaid fees due MSI are satisfied, upon termination, MSI will provide transition services for a period of up to thirty (30) days from the termination date ("Transition Period") provided you agree to pay MSI's then current project management fees ("Transition Fees"). Project management fees will be charged at the same rates as during the Term. During the Transition Period, you may continue to access and use the Services in accordance with these Terms and the Services Agreements, for the agreed specified and limited purpose of effecting an efficient transition from use of the Services. Similarly, during the Transition Period, MSI will continue to provide Support and Maintenance services.
(a) Provided you are not in uncured breach of this Agreement or any other Services Agreement, you may submit a written request for a final export of Your Data during the Transition Period ("Final Export Request" and "Final Export"). Upon receipt of such Final Export Request, MSI will conduct one (1) final export to make Your Data available to you. Upon delivery of the Final Export, you will pay all applicable fees for such Final Export. If you fail or refuse to pay all fees, you understand and agree that MSI will have no further obligations to retain, maintain, or deliver your Data.
3.5 Effect of the Sale or Transfer of Your Business.
If you sell or otherwise transfer your business or transfer control of your business to a third party (the "Business Transfer" and the "Transferee" respectively), you understand and agree that the Services are not transferable and cannot be a part of any such Business Transfer for any reason without compliance with the following: In order to assign your subscription and other rights to the Transferee, you must submit a written request to MSI at least fourteen (14) days prior to the consummation of such Business Transfer ("Transfer Request"). MSI may permit the assignment ("Subscription Assignment") of your Subscription Agreement (and other Service Agreements, as applicable) to such Transferee, provided that (i) the Transferee agrees to assume all of your obligations pursuant to these Terms and the Services Agreements in a writing satisfactory to MSI; and (ii) you pay MSI an "Administration Fee" of One Hundred Fifty ($150.00) Dollars prior to MSI granting access to the Services to said Transferee. You shall also provide such other information as MSI may reasonably request, including information regarding the Transferee's financial viability. The Transfer Request must include all salient information regarding the Business Transfer, including, by way of example, but not limitation, the effective date of the Business Transfer, the identity of, and contact information for the Transferee. MSI shall issue an invoice to you for the Administration Fee, which is due upon receipt, and prior to MSI approving the Subscription Assignment. Any attempted transfer in violation of the foregoing is a material breach of the Terms, and is null and void and of no effect.
4. FEES; PAYMENT TERMS+
Fees for subscription to the Services are set forth on the pricing terms page
4.2 Transition Fees.
The Transition Fees are due and payable as required herein.
4.3 Fee Increases.
MSI shall provide at least thirty (30) days' notice of any Fee increases pursuant to your Subscription Agreement MSI may increase any Fees not specified in an applicable Order or other Service Agreement without notice.
4.4 Fees are Your Responsibility.
You understand and agree that you are solely responsible for any and all Fees for your Subscription and all related services (including Support and Maintenance, and any other fees), and that MSI is not required to, and shall not look to any third party for payment of any fees.
4.5 Payment Terms.
Unless expressly and specifically set forth in any Service Agreement, all Fees are due net thirty (30) days of invoice. All payment obligations for your Subscription are non-cancelable and all fees paid are non-refundable. You agree to provide MSI with valid and current, updated credit card information, or such other form of payment permitted by MSI ("Payment Information"). If you present credit card information, you represent to MSI that you are duly authorized to use such credit card, and authorize MSI to charge the card for all fees due to MSI. When you submit Payment Information, you authorize MSI to provide that Information to third parties for purposes of facilitating or processing payment. You agree that you will verify any Payment Information or other information MSI requests, for purposes of processing payment to MSI. Any amounts not received by the applicable due date may accrue late interest at the greater of one and one-half (1.5%) percent of the outstanding balance per month, or the maximum interest permitted by applicable law, plus MSI's costs of collection (including MSI's reasonable attorney's fees).
4.6 Payment Errors.
If you believe an MSI invoice has been issued in error, you must provide MSI with written notice detailing the MSI error and disputed amount ("Dispute Notice") within thirty (30) days after the invoice date. If MSI does not receive the Dispute Notice within such thirty (30) day period, you will be deemed to have accepted such invoice. A Dispute Notice does not relieve you of your obligation to pay the amount in dispute. If MSI, in its good faith, reasonable discretion, determines the invoice was issued in error, MSI will refund the disputed amount, or, at its election, apply the disputed amount as credit towards future Fees.
4.7 Cessation of Services upon Default.
If any Fees or other amounts due from you to MSI remain unpaid for thirty (30) days after MSI notifies you of overdue payment, in addition to its other legal remedies, MSI reserves the right to suspend or cease delivery of all Services to you.
4.8 Additional Products.
To the extent applicable, absent MSI Consent to the contrary, these Fee and payment terms, together with any Additional Product Terms, are applicable to any Additional Products.
5. REPRESENTATIONS AND WARRANTIES+
5.1 Your Representations and Warranties.
You represent and warrant as follows:
(a) You have full authority and all necessary rights to execute and deliver this Agreement and the Services Agreements and to perform your obligations herein and therein;
(b) These Terms, together with the other Services Agreements, when executed and delivered, are your valid and binding obligations, enforceable in accordance with their terms;
(c) The execution, delivery, and performance of this Agreement and the Services Agreements have been duly authorized, and constitute your legal, valid, and binding agreement, enforceable against you in accordance with their terms;
(d) You will comply with your obligations pursuant to these Terms, the Services Agreements, and with all applicable federal, state, local, international, or other laws and regulations applicable to the performance of your obligations under these Terms and the Services Agreements;
(e) You will respond to MSI's reasonable requests for information and other communications promptly and with reasonably sufficient detail;
(f) You will pay all Fees when due in accordance with these Terms or any Services Agreement;
(g) You will not duplicate, transfer, copy, or grant access to the Services or any component(s) thereof except in accordance with this Agreement;
(h) You will only access and use the Services for your own internal business use and not for the benefit of any other person or entity other than permitted Affiliates;
(i) You will not adapt, modify or reverse engineer the Services in any way, or use them to create source code or a derivative work;
(j) You will exercise best efforts to monitor and enforce your employees', contractors', and Affiliates' compliance with these Terms and the Services Agreements, and to support and assist MSI with resolving any disputes and/or pursuing any claims and/or indemnities for any losses or damages arising from a breach of any Services Agreement;
(k) You will not: (i) submit to MSI material that is infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious, including any material that violates any third party intellectual property, privacy, or other rights or Applicable Law; (ii) disrupt or otherwise interrupt or interfere with the Services, or any components or data contained in the Services; (iii) access or use, or try to access or use the Services in any manner not permitted by these Terms; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any MSI copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store any MSI IP; or (ix) use any robot, spider, software, service, search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or otherwise gather MSI IP, or reproduce or circumvent the navigational structure or presentation of the Services;
(i) You represent to MSI that you are not subject to any United States trade restrictions or sanctions, and promise to comply with any applicable export control laws, restrictions, and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority ("Export Laws"). You promise that you will not use the Services to export, or allow any export or re-export in violation of any such Laws. You represent to MSI that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction.
(m) You will notify MSI of any actual or threatened violations or infringements of the intellectual property rights of others, to enable MSI to investigate and respond to such actual or threatened violations or infringements.
5.2 By MSI.
MSI represents and warrants to you that:
(a) Subject to the terms and conditions set forth herein or in any Services Agreement, the Services will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in the Documentation;
(b) MSI is the lawful owner of MSI as necessary to render the Services, with all the necessary rights to perform its obligations hereunder; and
(c) The Services do not infringe on any copyright, patent, or trademark of any third party.
6. DATA, CONTENT OWNERSHIP, USE, AND RESPONSIBILITY+
6.1 Ownership of Your Data.
Subject to the "Limited Data License" (as hereafter defined), Your Data, which is considered Confidential Information, is and shall remain your sole and exclusive property.
6.2 Limited Data License.
Except with respect to PII, you grant MSI a limited, nonexclusive, fully paid, and royalty-free license to use Your Data for its internal business purposes, analysis of markets and market trends, and to enable MSI to evaluate ways and means to improve the Services ("Limited Data License"). You represent and warrant to MSI that you have all necessary rights and permissions required to grant the Limited Data License, and that granting such License to MSI does not and will not violate any third party rights or applicable law.
6.3 Ownership of Content.
MSI owns and controls Content. Content is protected by all applicable laws, including trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. You may not copy, duplicate, republish, upload, post, display in any public manner, encode, translate, transmit, "mirror" or distribute Content in any way to any other computer, server, website, or other medium.
6.4 Accounts, Passwords and Security.
You are entirely responsible for maintaining the confidentiality of the information you hold for your MSI Account (including your user name/identification ("User ID") and password), and for any and all activity that occurs or may occur under your MSI Account as a result of your failing to keep Your Data, Cardholder Data, and other information secure and confidential. You agree to notify MSI immediately of any unauthorized access or use of your MSI Account, user name, password, Your Data, Cardholder Data, or any other breach of security regarding the Services. If you fail to keep your Account information secure and confidential, and as a result, a third party accesses or uses your User ID and/or password, or Account, then you may be held liable for Liabilities incurred by MSI or any other user of or visitor to the Services. You may not use anyone else's User ID, password, or account at any time, unless you have obtained that person's express permission and consent. MSI is not liable for any Liabilities or damage arising from your failure to comply with these obligations.
6.5 Your Data Responsibility.
The collection, quality, accuracy of Your Data and Cardholder Data is your responsibility. MSI is not responsible for your access to and use of Your Data or Cardholder Data, including any third party disputes of any kind or nature involving Your Data or Cardholder Data. User names and passwords associated with your MSI Account are your responsibility and considered Confidential Information, subject to change upon MSI's direction. You must comply with all Applicable Laws regarding Your Data and Cardholder Data, including PCI DSS, together with all laws applicable to your specific industry.
6.6 Rights to MSI Data.
MSI owns all right, title and interest in all MSI Data.
6.7 Data Export During the Term.
MSI will export Your Data during the Term upon Your written request, and subject to payment by You of MSI's then current fees for such services.
6.8 Backup and Recovery of Your Data.
MSI will backup and recover your Data as follows: [TBC].
6.9 Data Security.
MSI will implement and maintain appropriate administrative, technical and physical safeguards, procedures and practices designed to: (i) ensure the security, confidentiality, integrity and authorization of Your Data; (ii) protect against any anticipated threats or hazards to the security, confidentiality or integrity of Your Data; (iii) protect against unauthorized use, destruction, modification or disclosures of Your Data; and (iv) ensure the proper export or disposal of Your Data. MSI will notify You [via email] if MSI learns or reasonably suspects that the security, confidentiality or integrity of Your Data has been compromised or if there has been an unauthorized use, destruction, modification or disclosure of Your Data, and MSI will promptly take all actions required to stop and remedy any such incident. You must immediately notify MSI as soon as you learn or reasonably suspect that the security, confidentiality, or integrity of Your Data has been compromised or that there has been an unauthorized use, destruction, modification, or disclosure of any of Your Data.
7. CONFIDENTIAL INFORMATION+
7.1 Confidential Information.
Each of MSI and You acknowledges the importance of the protection of Confidential Information, and agree that neither will disclose or use any Confidential Information of the other party except: (i) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to these Terms or any Services Agreement; (ii) with the other party's prior written consent; or (iii) to the extent required by law, subpoena, or order of a court or other governmental authority or regulation, and in such event, to the extent legally permitted, the Receiving Party shall, prior to any such disclosure, promptly notify the Disclosing Party of such request for disclosure in order to give the Disclosing Party the opportunity to object to or seek to limit the scope of such disclosure. Your agreement to these Terms and your Access and use of the Services represents your consent to MSI's use of your Confidential Information for the purpose of rendering the Services and performing its obligations herein.
8. MSI LIMITED WARRANTY+
8.1 Limited Warranty.
MSI WARRANTS THAT THE SERVICES WILL MATERIALLY PERFORM AND FUNCTION AS GENERALLY DESCRIBED IN THE DOCUMENTATION. SUBJECT TO THE FOREGOING LIMITED WARRANTY, THE SERVICES AND THE DOCUMENTATION ARE FURNISHED "AS IS, WHERE IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
If the Services do not perform as provided in the foregoing Limited Warranty, MSI will use commercially reasonable efforts to achieve performance as described therein. If MSI is unable to restore such functionality, you may terminate your Subscription by providing written notice to MSI, and MSI will refund any pre-paid fees on a pro-rata basis. The foregoing is your sole and exclusive remedy for a violation of MSI's Limited Warranty, and is expressly conditioned upon satisfaction of the following conditions: (i) you must notify MSI not later than thirty (30) days after the first instance of any material functionality problem; (ii) you have utilized the Services in accordance and compliance with this Agreement, the Services Agreements, and all applicable laws; and (iii) this Limited Warranty does not apply to any trial, beta, or Pre-Release products or services.
EXCEPT AS EXPRESSLY PROVIDED IN THE FOREGOING LIMITED WARRANTY, WITH RESPECT TO THESE TERMS, THE SERVICES, THE SERVICES AGREEMENTS, OR ANY COMPONENT OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MSI DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF QUALITY, CORRECTNESS, COMPLETENESS, COMPREHENSIVENESS, SUITABILITY, AND ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MSI DOES NOT WARRANT THAT: (i) USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED; (ii) THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT; (iii) THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (iv) THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND LOCAL NETWORKS AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN THE FOREGOING LIMITED WARRANTY, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND SOLELY FOR USE IN ACCORDANCE AND COMPLIANCE WITH THESE TERMS AND THE SERVICES AGREEMENTS. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT OR ANY SERVICES AGREEMENT) ARE MADE ON BEHALF OF BOTH MSI AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (THE FOREGOING ARE COLLECTIVELY REFERRED TO AS THE "MSI PARTIES").
10. LIMITATION OF LIABILITY+
10.1 LIMITED LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER YOU OR MSI SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES AGREEMENT. A PARTY SHALL BE LIABLE TO THE OTHER FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR THE SERVICES AGREEMENTS. EXCEPT WITH RESPECT TO YOUR INDEMNITY, THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE, FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT YOU PAID TO MSI IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE EVENT RESULTING IN THE DAMAGE OCCURRED.
11.1 Your Indemnity.
You agree to indemnify, defend, and hold MSI harmless from and against any and all Claims and Liabilities we incur arising from or relating to: (i) Your Breach; (ii) Your unauthorized use of or access to the Services; (iii) Your unauthorized actual or alleged violation a third party's intellectual property, privacy, or other legal rights; or (iv) any dispute between you and a third party involving Your Data.
11.2 MSI's IP Indemnity.
Upon an allegation that the Services or your permitted use of the Services infringes any third party's personal, contractual, or proprietary rights, including any patent, copyright, trade secret, trademark, right of privacy, right of publicity, or other intellectual property right ("IP Claim"), and such IP Claim results in an injunction or final judgment that prohibits your use of the Services, or in the event MSI reasonably believes that use of the Services may result in an IP Claim, then MSI shall, at its election, either: (i) procure for you the right to continue using the Services; (ii) replace or modify the Services to be non-infringing; or (iii) terminate your Subscription. If MSI terminates your Subscription based upon the foregoing, MSI will refund any prepaid, unused fees and provide transitional services as reasonably necessary at no cost to you. The foregoing (including indemnification with respect to third party claims) is your sole remedy in the event of an IP Claim.
In the event of any conflict or any ambiguity between these Terms, the Subscription Agreement, the Support and Maintenance Agreement, or any Order, the precedence shall be as follows:
First: The Order;
Second: The Subscription Agreement;
Third: The Support and Maintenance Agreement; and
Fourth: These Terms and Conditions.
13. GOVERNING LAW; JURISDICTION+
13.1 Governing Law; Consent to Jurisdiction.
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 Services Agreements, and the transactions contemplated herein, and therein, including, without limitation, 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
You understand and consent that MSI may deliver any notices to you via the Services, or via the email address on file in your MSI Account. MSI's notice to you will be effective on the date sent, if sent on a business day, or the following business day if not sent on a business day. To be effective, all notices and other communications you provide to MSI must be in writing and will be deemed duly given to MSI four (4) days after mailed by registered or certified mail, return receipt requested, postage prepaid, to MSI at the following address:
Millennium Systems International
28 Eastmans Road
Parsippany, NJ 07054
Attention: Customer Service Department
15. GENERAL PROVISIONS+
(a) Electronic Communications. You agree to the use of electronic communications to enter into agreements, place orders, receive notices, and communicate with MSI in connection with the Services, and, to the extent waive any rights of any kind or nature that require original or non-electronic signature or delivery, or retention of nonelectronic records.
(b) References to MSI URLs. All references to MSI URLs in these Terms and the Services Agreements shall mean to include such other URLs as MSI shall determine or amend regarding the applicable service, terms, or agreement.
(c) Relationship between Parties. Your Access and use of the Services and entry into this Agreement and the Services Agreements does not create a joint venture, partnership, or principal/agent relationship between you and MSI. Neither you nor MSI has the right to create an obligation, liability, or responsibility of any kind, whether expressed or implied, in the name of, or on behalf of the other party, and no employee of either one of the parties shall be deemed for any reason to be an employee of the other.
(d) References. For purposes of these Terms and the Services Agreements, all references to MSI include MSI's affiliates. All references to "you", include you, the end user, and all of your Affiliates. All references to this Agreement shall mean these terms, and references to your execution shall mean to include by written or electronic means.
(e) Compliance with Laws. Each of you and MSI agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.
(f) Cooperation. You agree that where your approval, acceptance, consent or similar action is required in connection with our delivery of, and your access to and use of the Services, you will not unreasonably delay, condition, or withheld such approval. You further agree to cooperate with MSI as reasonably required by responding promptly with our requests for management decisions, information, approvals, and acceptances to enable MSI to properly accomplish its obligations and responsibilities in connection with the Services.
(g) Entire Agreement. These Terms, together with the Services Agreements, constitute the entire agreement between MSI and you and supersede any and all previous representations, understandings, or agreements as to the subject matter hereof.
(h) Progressive Dispute Resolution. You and MSI agree that we will endeavor to resolve in good faith any dispute in connection with your use of the Services, before filing any lawsuit in accordance with the following: The aggrieved party shall deliver written notice to the other party, detailing its grievance or dispute. We will exercise best efforts to resolve the dispute by good faith negotiations, within thirty (30) days of the date of the dispute notice. If we cannot resolve the dispute by such good faith negotiations, then either party may file suit in a court of competent jurisdiction.
(i) Waiver of Jury Trial. Each party knowingly, voluntarily, and intentionally waives its right to a trial by jury to the extent permitted by law in any action or other legal proceeding arising out of or relating to this Agreement, the transactions contemplated herein, and any other agreement between the parties in connection with this Agreement or the transactions contemplated herein.
(j) Assignment and Delegation. Except as otherwise permitted by MSI in accordance with these Terms or the Services Agreements, you may not assign any of your rights hereunder, or delegate any performance under these Terms. Any assignment in violation of the foregoing is and shall be null, void, and of no effect.
(k) Successors and Assigns. This Agreement binds and benefits you and MSI and our respective permitted successors and assigns.
(l) Third Party Beneficiaries. This Agreement does not and is not intended to confer any right or remedies upon any person or entity other than you and MSI.
(m) Rights and Remedies Cumulative. The enumeration of either party's rights and remedies pursuant to this Agreement is not intended to be exhaustive. A party's exercise of any right or remedy hereunder does not preclude its exercise of any other right or remedy, all of which are cumulative.
(n) Force Majeure. MSI is not responsible for suspension of its delivery if the Service if such suspension is caused by a Force Majeure Event. Upon the occurrence of a Force Majeure Event, MSI will notify you as to the nature and extent of the Force Majeure Event and estimated duration of the period ("Suspension Period") during which MSI will be unable to perform ("Force Majeure Notice"). During the Suspension Period, MSI will provide updates to you as to its efforts to commence performance. When MSI is able to resume, it shall promptly deliver you notice ("Resumption Notice") and resume performance no later than [two (2)] business days after the date of delivery of the Resumption Notice. If the Suspension Period extends beyond [TBC] days, you may terminate your subscription upon written notice to MSI.
(o) Costs and Expenses. In addition to paying Fees, you are required to pay your own fees, costs, and expenses (including, without limitation, for example, in connection with consultants, hardware purchase and installation) in connection with your access and use of the Services, these Terms, the Services Agreements, and your relationship with MSI.
(p) Prevailing Party. If any legal action, arbitration, or other proceeding ("Action") is brought under this Agreement, in addition to any other relief to which the prevailing party or parties ("Prevailing Party") is entitled, the Prevailing Party is entitled to recover, and the non-Prevailing Party shall pay to the Prevailing Party, all (i) reasonable attorneys' fees of the Prevailing Party; (ii) court costs, and (iii) expenses, even if not recoverable by law as court costs (including, without limitation, all fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy and post-judgment proceedings), incurred in that Action, and all appellate proceedings. For purposes of this provision, "attorneys' fees" includes, without limitation, paralegal fees, investigative fees, expert witness fees, administrative costs, disbursements, and all other charges billed by the attorney to the Prevailing Party.
(q) Amendment and Modification. MSI may amend, modify, supplement or change these Terms at any time. Neither these Terms nor any of the Services Agreements as between you and MSI may be amended orally, and may only be amended or supplemented by a written agreement, signed by a duly authorized representative of MSI, that specifically identifies itself as an amendment.
(r) Waiver. MSI may waive its right to insist upon your strict compliance with any obligation, covenant, agreement, or condition in these Terms or in the Services Agreements, however, any such waiver or failure to insist upon strict compliance is not a waiver of, or estoppel with respect to, any subsequent or other failure.
(s) Severability. If any provision of these Terms or any Services Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions therein shall not be affected or impaired in any way.
(t) Merger. These Terms, together with the Services Agreements, are the final agreement, and complete and exclusive expression of your agreement with MSI with respect to the matters herein and therein. All prior and contemporaneous negotiations and agreements between you and MSI are expressly merged into and superseded by these Terms. The provisions of these Terms may not be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. In agreeing to these Terms, you confirm that you have not relied upon any statement, representation, warranty, or agreement by MSI other than those contained in these Terms or the applicable Services Agreement. There are no conditions precedent to the effectiveness of these Terms other than those expressly stated herein.
(u) Number and Gender. All terms and words used in these Terms and the Services Agreements, 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.
(v) Captions. The captions and other descriptive headings of the articles, sections, and subsections of these Terms and the Services Agreements are for convenience only and do not constitute a part of these terms.
(w) Further Assurances. At any time and from time to time after the Closing, the parties shall cooperate with each other to execute and deliver any other documents, instruments of transfer or assignment, files, books and records and do all further acts and things as may reasonably be required to carry out the parties' intent and the purposes of this Agreement.
16. SERVICE LEVEL AGREEMENT+
16.1 Uptime Commitment.
MSI will make the Service available to you on a twenty-four hour, seven days a week (24x7) basis at a rate of 99.9% (“Uptime Requirement”). Subject to the “SLA” Exclusions” (as hereinafter defined), if we do not meet the Uptime Requirement, you may be eligible to receive “Service Credit” (as hereinafter defined). The Uptime Requirement begins on the Effective Date.
16.2 Measuring Uptime.
We measure Uptime starting on the Effective Date, for twelve (12) month periods (each a Measurement Period). The “Uptime Metric Percentage” (as hereafter defined) will be calculated using the following formula, resulting in the “Uptime Requirements Percentage” set forth in the table below:
(Total Minutes Per Period – SLA Failure – SLA Exclusions)
(Total Minutes Per Period – SLA Exclusions)
In other words:
Total Minutes Per Period,
equals the Uptime Metric Percentage
Uptime Metric Percentage is then divided by:
The difference between Total Minutes Per Period,
The foregoing equals the Uptime Requirements Percentage.
16.3 Service Credits.
If the Uptime Requirement for an applicable Measurement Period is not satisfied, you may be entitled to a "Service Credit" as follows:
Uptime Requirements Percentage:
99.9% or higher
One (1) free month of Services
Two (2) free months of Services
Six (6) free months of Services
Twelve (12) free months of Services
16.4 Credit Request.
To receive Credit, you must send MSI an email to email@example.com later than thirty (30) days after the end of the applicable Measurement Period. The email must include date(s), time(s) and description(s) of each instance of downtime, and any supporting documentation and calculations. MSI will review all properly submitted credit requests against MSI’s logs and system records.
16.5 Credit Eligibility.
Your Meevo Subscription must be current and in good standing for a minimum of twelve (12) consecutive months to request a Service Credit. You are not eligible to request or receive any Credit Service for any Measurement Period during which you were in breach or other violation of any monetary or non-monetary obligation to MSI. Credits will be applied to future Services only, and any unused Credits are non-refundable upon termination of the Agreement. Beta, trial, sandbox, and similar testing services are excluded from this SLA and not eligible for Service Credit.
(1) “Total Minutes Per Period” means the total number of minutes in the Measurement Period.
(2) “SLA Failure” means downtime during Measurement Period that does not satisfy the Uptime Requirement and is not an SLA Exclusion.
(3) “SLA Exclusion” means downtime or performance issues directly or indirectly cause by or arising from any of the following:
- Scheduled maintenance for which we give you at least eight (8) hours prior notice performed from 10pm to 6am EST;
- Emergency maintenance;
- Any Force Majeure Event (as defined herein);
- Internet issue (congestion, slowdown, or unavailability) or problems beyond MSI’s operating infrastructure
- Suspension or termination of Service by MSI pursuant to this Agreement
- Your equipment of any third-party telecommunications, computer hardware, software, or network infrastructure not within MSI’s sole control
- Any issue resulting from your actions, inactions, or improper use of API, and any of the foregoing by any third party
- Modules of MSI software outside of your ability to login and access MSI Services, including but not limited to, reports, third party integration, hardware integrations, your own custom integrations via MSI API, marketing integrations, SMS integrations and delivery, and email integrations and delivery.