TERMS OF SERVICE
Last Updated: September 29th, 2020
This agreement (“Agreement”) is between MaintainX, Inc. (“MaintainX”, “We”, “Us”) and the person or entity agreeing to the terms of this Agreement (“Customer”, “You”). This Agreement is effective on the earliest of (a) the date Customer signs up to the Service (as defined below); (b) Customer entering into an Order Form or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority bind that organization to this Agreement.
In addition to definitions set forth elsewhere in this Agreement, the following terms have the following meanings:
“Admin User” means any individual who is authorized by You to use the Service, to whom You (or We at Your request) have supplied access credentials, and who has permissions to administer Your account within the Service in addition to using all other features of the Service applicable to Your Subscription.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized User” means any Admin User, Full User, or Requester User.
“Beta Service” means certain features, technologies, and services that are not generally available to Our customers, as updated from time to time.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, by Us or our Affiliates from Customer or an Authorized User by or through the Service, including Customer assets, policies, practices, and protocols that Customer or its Authorized Users upload or otherwise provide to the Service. For the avoidance of doubt, Customer Data does not include any information reflecting the access or use of the Service by or on behalf of Customer or any Authorized User.
“Documentation” means the online documentation and Service feature descriptions, as updated from time to time, located at https://www.getmaintainx.com/#features or at such other URL as We may provide from time to time.
“Full User” means an individual, other than an Admin User, who is authorized by You to use the Service, to whom You (or We at Your request) have supplied access credentials, and who has permissions to use features of the Service applicable to Your Subscription beyond the permissions provided to a Requester User.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses.
“Order Form” means an online confirmation page or an ordering document specifying a Subscription to the Service or Implementation Services, or both, to be provided under this Agreement that specifies a number of Users, including any free trial of any Subscription plan or any free or paid Subscription plans offered by Us. For clarity, Order Forms may include online requests by You for access to the Service for a particular number of Users along with any accepted quotes, purchase orders or signed order forms, in each case referencing this Agreement and without any terms or conditions added by You.
“Our” means MaintainX’s and “Your” means Customer’s.
“Our Materials” means the Service, Installed Software, Documentation, and Our Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided, developed or used by Us or any Subcontractor in connection with the Service or otherwise comprise or relate to the Service or Our Systems, including any information, data, or other content derived from MaintainX’s monitoring of Customer’s or any Authorized User’s access to or use of the Service, but not including Customer Data.
“Our Systems” means the information technology infrastructure used by or on behalf of MaintainX in providing the Service, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Us or using third-party services.
“Purchased Service” means the Service that You purchase under an Order Form specifying a paid Subscription, as distinguished from those provided pursuant to a free trial or under a free Subscription.
“Requester User” means an individual who is authorized by You to use the Service for the limited purpose of making work requests, viewing the status of work requests, and sending and receiving messages within the Service, and any other limited permissions provided to Requester Users specified in the Documentation, and to whom You (or We at Your request) have supplied access credentials.
“Service” means the computerized maintenance and management software as a service platform that We make available online and through one or more mobile applications, including any changes or updates, as described in the applicable Order Form.
“Subscription” means access to the Service as requested by You on a per User basis as specified in the applicable Order Form.
“Subscription Term” means the period of time during which Authorized Users are permitted to use the Service as set forth in the applicable Order Form along with any renewals as specified in Section 12.2 (Term of Purchased Subscriptions).
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Service that are not proprietary to MaintainX.
“User” means an Admin User or Full User.
2. Free Trial
If You register for a free trial Subscription to the Service on Our website or with Our mobile application, subject to the terms of this Agreement, We will make the Service available to You on a trial basis, free of charge, until the earlier of (a) the end of the free trial period, or (b) the start date of any paid Subscription ordered by You. Additional trial terms and conditions may appear on the trial registration web page and are incorporated into this Agreement by reference.
Your Customer Data that you input into Our Systems, and any customizations made to the Service by or for You, during Your free trial may be permanently lost or deleted at the end of the free trial period unless You purchase a Subscription to the Service before the end of the free trial period.
3. Our Responsibilities
3.1 Provision of the Service. We will use commercially reasonable efforts to make the Service available to Customer and its Authorized Users pursuant to this Agreement and the applicable Order Form. Notwithstanding the foregoing, the Service may not be available due to planned downtime (which We will schedule to the extent practicable during low usage hours such as nights or weekends).
3.2 Access and Use. MaintainX hereby grants to Customer a non-exclusive, non-sublicensable, non-transferrable (except in compliance with Section 14.3), worldwide right to access and use, and permit Authorized Users to access and use, the Service solely for Customer’s internal business operations in accordance with the terms of this Agreement.
3.3 Software License. MaintainX hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.3) license to install, execute and use any mobile application software that We provide or otherwise make available to You or Your Authorized Users in connection with use of the Service as permitted herein (collectively, “Installed Software”), in object code only, on devices owned or controlled by Customer or the applicable Authorized User (each, an “Authorized Device”), solely for Customer’s internal business operations in accordance with the terms of this Agreement.
3.4 Documentation License. MaintainX hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.3) license to use, and permit Authorized Users to use, the Documentation solely for Customer’s internal business purposes.
3.5 Changes to the Service, Installed Software and Documentation. We reserve the right, in our sole discretion, to make changes to the Service, Installed Software and Documentation at any time that We deem necessary or useful to (a) maintain or enhance: (i) the quality or delivery of services to Our customers; (ii) the competitive strength of or market for Our services; or (iii) the Service’s cost efficiency or performance; or (b) to comply with applicable Law.
3.6 Beta Service. We may invite You to try Beta Service at no charge. You may accept or decline any such trial in Your sole discretion. Beta Service will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Service is for evaluation purposes and not for production use, are not considered part of the “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Service trial period will expire upon the date that a version of the Beta Service becomes generally available. We may discontinue Beta Service at any time in Our sole discretion and may never make features, technologies, or services of Beta Service generally available.
3.7 Suspension or Termination of Service. We may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Service, without incurring any resulting obligation or liability, if: (a) MaintainX receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires MaintainX to do so; or (b) MaintainX believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, including payment obligations, or accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Service; or (iii) this Agreement expires or is terminated. This Section 3.7 does not limit any of Our other rights or remedies, whether at law, in equity, or under this Agreement.
3.8 Support. Each Subscription includes customer support services (“Support Services”) at the support levels applicable to the Subscription in accordance with the MaintainX service support schedule then in effect.
3.9 Implementation Services. If You purchase implementation services such as bulk provisioning of Authorized User accounts or Customer training (“Implementation Services”), MaintainX shall provide such implementation services as set forth on the applicable Order Form.3.10 Subcontractors. We may engage third parties (each, a “Subcontractor”) to perform Our obligations under this Agreement in Our discretion, but We remain responsible for performance of any such Subcontractor.
4. Use of Services
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) access to the Service is acquired by Customer with a Subscription with fees for the applicable Subscription plan, if any, payable on a per User basis, (b) Subscriptions have a monthly or annual Subscription Term, (c) Subscription plans may be upgraded during the Subscription Term with the term for such upgraded plan prorated for the portion of that Subscription Term remaining at the time the mid-term subscription plan is upgraded, and (d) access for all Authorized Users terminates on the same date as the Subscription Term.
4.2. Increases and Decreases. The total number of Users may be increased during the then-current Subscription Term by any of Your Admin Users by submitting an Order Form specifying the new higher number of Users with fees pro-rated for the then-current Subscription Term. The total number of Users may be decreased during the then-current Subscription Term by Customer by submitting an Order Form specifying a new lower number of Users with fee changes and applicable usage limits taking effect at the end of the then-current Subscription Term.
4.3 Usage Limits. The Service is subject to usage limits, including, for example, the quantities or other limits specified in the applicable Order Form(s) (for example, number of Users, work orders with pictures, number of parts in parts inventory, repeatable work orders, length of history for reports provided by the Service to you).
4.4 Your Responsibilities. You will (a) be responsible for Authorized Users’ compliance with this Agreement and for all activities that occur through Your Authorized Users’ use of the Service and any Installed Software, including the restrictions set forth in Section 4.5 below, (b) be responsible for the accuracy, quality and legality of Customer Data, (c) use reasonable efforts to prevent unauthorized access to or use of the Service or the Installed Software, and notify Us promptly of any such unauthorized access or use, (d) use the Service and Installed Software only in accordance with this Agreement and applicable laws and government regulations, and (e) respond to questions and complaints from Authorized Users or third parties relating to Your or Your Authorized Users’ use of the Service and Installed Software and use reasonable efforts to resolve support issues before escalating them to Us.
4.5 Usage Restrictions. You will not, and You will not permit any third party (including any Authorized User) to, (a) make the Service or Installed Software available to, or use the Service or Installed Software for the benefit of, anyone other than You, (b) sell, resell, license, sublicense, distribute, rent or lease the Service or Installed Software, or include the Service or Installed Software in a service bureau or outsourcing offering, (c) use the Service or Installed Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (d) use the Service or Installed Software to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or Installed Software or third-party data contained therein, including without limitation any anomalous use of the Service or Installed Software, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Service or Installed Software in a way that circumvents a contractual usage limit, (h) copy the Service or Installed Software or any of their respective parts, features, functions, or user interfaces, (i) frame or mirror any part of the Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in this Agreement, (j) access the Service or Installed Software in order to build a competitive product or service, (k) reverse engineer the Service or any of its associated software or the Installed Software (to the extent such restriction is permitted by law), (l) remove any proprietary notices from the Service, Installed Software, or Documentation, or (m) access the Service or Installed Software for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
5. Security and Access to Customer Data
5.1 Protection of Customer Data. We maintain industry-standard administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of Customer Data by Our personnel.
5.2 Self-Service Access to Customer Data. We will provide Customer’s Admin Users with the ability to download Customer Data from the Service, subject to any usage limits applicable to Your Subscription. For example, We may only provide Customer the ability to download particular types of Customer Data in particular formats under a free Subscription plan.
5.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Service; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Service directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Without limiting the foregoing, the Service does not replace the need for Customer to maintain regular data backups or redundant data archives. We have no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data.
6. Fees and Payment for Purchased Services
6.1 Fees. For any paid Subscription, Implementation Service or other Service You purchase from Us, You will pay all fees specified in the applicable Order Form(s). Except as otherwise specified herein or in an Order Form, (a) fees for the Service are based on the Subscription purchased and the total number of permitted Users rather than actual usage or actual number of individuals with access credentials and (b) payment obligations are non-cancelable and fees paid are non-refundable.
6.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You (a) authorize Us to charge such credit card for (i) all Purchased Services listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions) and (ii) any Implementation Services listed in the Order Form, and (b) will ensure that the credit card information provided to Us is current and valid and promptly update the information if the credit card expires. Charges will be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Overdue Charges. If any undisputed invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) We may charge interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment), and (c) We may require You to pay any collections or legal fees or costs incurred by Us in order to collect payment of the corresponding undisputed invoiced amount.
6.4 Payment Disputes. If You dispute any invoiced amounts, You will promptly provide Us with notice of the disputed amounts along with supporting documentation within 30 days of Your receipt of the invoice, and the parties will cooperate diligently to resolve such dispute in good faith. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute, provided that You remit payment for any undisputed amounts in a timely manner.
6.6 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property, and employees.
6.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. Intellectual Property Rights
7.1 Our Materials. Subject to the limited rights expressly granted hereunder, We retain all of Our rights, title, and interest in and to Our Materials and all of Our intellectual property rights therein. With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. No rights are granted to You hereunder other than as expressly set forth herein or, with respect to Third-Party Materials, the applicable third-party license.
7.2 Customer Data. As between You and Us, You are and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, subject to the rights and permissions granted in Section 7.3.
7.4 License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our Materials any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Authorized Users relating to the Service.
8.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes Our Materials; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
8.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its and its Affiliates’ employees, contractors and advisors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations to the Receiving Party at least as protective as those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. Representations, Warranties, Exclusive Remedies and Disclaimers
9.1 Representations. Each party represents to the other party that it has validly entered into this Agreement and has the legal power to do so.
9.2 Our Warranties. We warrant to You that the Purchased Services will perform materially in accordance with the specifications set forth in the Documentation. We further warrant to You that the Implementation Services and Support Services will be performed in a professional and workmanlike manner. For any breach of the above warranty, Your exclusive remedies and Our sole obligations are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
9.3 Mutual Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Purchased Services, Implementation Services and Support Services, as applicable (including applicable data security breach notification law).
9.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED UNDER SECTION 9.2 ABOVE, THE SERVICE, THE INSTALLED SOFTWARE, THE IMPLEMENTATION SERVICES, THE SUPPORT SERVICES, AND ANY BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
9.5 Benefit of the Bargain. The warranty disclaimer set forth above in Section 9.4 and the limitation of liability set forth in Section 11 below are fundamental elements of the basis of the agreement between MaintainX and Customer. We would not be able to provide the Service on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Our suppliers.
10. Mutual Indemnification
10.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a ”Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You pursuant to a settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. You may participate in the defense and settlement of the Claim Against You at Your expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your Subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the Subscription Term for the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your breach of this Agreement or otherwise from Your gross negligence or willful misconduct.
10.2 Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party, including any Authorized User (a) alleging that Customer Data or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or rights of privacy or publicity; (b) based on Customer’s or any Authorized User’s (i) gross negligence or willful misconduct, (ii) use of the Service in a manner not authorized by this Agreement, (iii) use of the Service in combination with data, software, hardware, equipment, or technology not provided by Us or authorized by Us in writing; or (c) alleging personal injury or property damage caused by Customer or any Authorized User in connection with the Service (collectively, a ”Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us pursuant to a settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense. We may participate in the defense and settlement of the Claim Against Us at Our expense.
10.3 Exclusive Remedy. This Section 10 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 10.
11. Limitation of Liability
11.1 Limitation of Liability. EXCEPT FOR ANY BREACH OF SECTION 5 (DATA SECURITY) OR SECTION 8 (CONFIDENTIALITY), OR YOUR OBLIGATIONS UNDER 4.6 (USAGE RESTRICTIONS) OR SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES), NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE GREATER OF THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS OR $100. WITH RESPECT TO ANY BREACH OF SECTION 5 (DATA SECURITY) OR SECTION 8 (CONFIDENTIALITY), NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE GREATER OF TWO TIMES THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS OR $200. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
11.2 Exclusion of Consequential and Related Damages. EXCEPT FOR ANY BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 (CONFIDENTIALITY) OR YOUR OBLIGATIONS UNDER 4.6 (USAGE RESTRICTIONS), IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. Term and Termination
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all Subscription Terms hereunder have expired or have been terminated.
12.2 Term of Purchased Subscriptions. The Subscription Term is as specified in the applicable Order Form. Subscriptions automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless otherwise set forth in the applicable Order Form or either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The pricing during any automatic renewal term, as described in the Order Form, will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
12.3 Termination. A party may terminate this Agreement (a) 30 days after providing written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such 30-day period, (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (c) upon 10 days’ written notice to the other party if the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
12.4 Refund or Payment upon Termination. If You terminate this Agreement in accordance with Section 12.3 (Termination), We will refund You any prepaid fees for the Service covering the remainder of the Subscription Term of all Order Forms after the effective date of termination and any prepaid fees for any Implementation Services not yet performed. If We terminate this Agreement in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5 Customer Data Portability and Deletion. After the effective date of termination or expiration of this Agreement, We will have no obligation to maintain or provide Customer Data, and may, in Our sole discretion, delete or destroy all copies of Customer Data in Our systems or otherwise in Our possession or control, unless legally prohibited. Notwithstanding the foregoing, for any Purchased Service, We will make all Customer Data available to You for electronic retrieval for a period of 30 days after such termination or expiration.
12.6 Surviving Provisions. Each party is responsible for any obligations to the other party that arose prior to any termination or expiration of this Agreement. In addition, except as otherwise set forth in this Agreement, Section 7 (Intellectual Property Rights), Section 8 (Confidentiality), Section 9.4 (Disclaimers), Section 10 (Mutual Indemnification), Section 11 (Limitation of Liability), Section 12.4 (Refund or Payment upon Termination), Section 12.5 (Customer Data Portability and Deletion, this Section 12.6 (Surviving Provisions), Section 13 (Notices, Governing Law and Dispute Resolution), and Section 14 (General Provisions) survive any termination or expiration of this Agreement.
13. Notices, Governing Law and Dispute Resolution
13.1 Manner of Giving Notice. All notices, permissions, and approvals hereunder must be in writing and will be deemed given upon: (i) personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending via an overnight delivery service; or (iii) the first business day after sending by email (provided email is not sufficient for notices of material breach, termination, or an indemnifiable claim). Notices to Us shall be addressed to:
Attn: Customer Service Department
185 Clara Street Suite 101C
San Francisco, CA 94107
Email: [email protected]
Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Admin User designated by You, in writing, by like notice
13.2 Governing Law and Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
13.3 Informal Dispute Resolution and Arbitration. The parties acknowledge that most disputes can be resolved without resort to litigation. The parties will use their best efforts to settle any dispute directly through consultation with each other before initiating a lawsuit or arbitration. If, after good faith negotiations the parties are unable to resolve the dispute, any and all disputes arising out of or in any way relating to this Agreement, including without limitation its existence, validity or termination, shall be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (“JAMS”) and pursuant to the then existing arbitration rules at JAMS.
If the parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be San Francisco, California unless otherwise agreed upon by the parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The existence of a dispute, submission to arbitration, and any arbitration award under to this Agreement is deemed the Confidential Information of both parties.
The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this Section 13.3 mandating arbitration shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
You may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to MaintainX. Any such notice must be given within 30 days of the Effective Date. If Customer opts out of arbitration, MaintainX also will not be bound to arbitrate.
Notwithstanding anything to the contrary in this Section 13, (a) either party shall be entitled to seek injunctive relief as set forth in Section 13.4 (Equitable Relief) below and to stop unauthorized use of the Service or infringement of Intellectual Property Rights and (b) any disputes, claims, or controversies concerning either party’s Intellectual Property Rights or claims of piracy or unauthorized use of the Service shall not be subject to arbitration but instead must be heard in state or Federal court in San Francisco, California.
13.4 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 (Confidentiality) or, in the case of Customer, Section 4.6 (Usage Restrictions), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14. General Provisions
14.1 Export Compliance. The Service, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You will not permit Authorized Users to access or use the Service in a U.S.-embargoed country, or permit access or use by any denied party, or otherwise in violation of any U.S. export law or regulation.
14.2 Entire Agreement and Order of Precedence. This Agreement, including any Order Forms and addenda or exhibits incorporated therein, is the entire agreement between You and Us regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) during the term of this Agreement is void. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) this Agreement, (2) the applicable Order Form, and (3) the Documentation.
14.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Notwithstanding the foregoing, if a party merges with, is acquired by, sells substantially all or substantially all of its assets to, or otherwise undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.
14.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.5 Publicity. Unless otherwise set forth on an Order Form, MaintainX may use Customer’s name, logo and marks to identify Customer as a MaintainX customer on MaintainX’s website and marketing, public relations and materials for current or prospective investors.
14.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
14.7 Waiver. No failure or delay by either party in exercising any right under this Agreement constitutes a waiver of that right.
14.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.9 Changes. MaintainX may revise this Agreement from time to time by posting a revised version on its website. Any such revised version will take effect as of the date of posting of the revised version or such later date set forth in a notice to you. Notwithstanding the foregoing, if You do not agree to the revised version, You may provide us written notice of non-renewal under Section 12.2 (Term of Purchased Subscriptions) within 30 days of the effective date of the revised version and such revised version will not apply to Your access and use of the Service through the remainder of Your then-current Subscription Term.
14.10 Force Majeure. Except for payment obligations, neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, Internet service provider failure or delay, or denial of service attack) that was beyond the party’s reasonable control.
14.11 US Government Rights. Each of the Installed Software, Documentation, and each software component that We use to provide the Service is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. If Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Service, Installed Software and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.