REVISION MAY 29, 2018 MANAGED METHODS TERMS OF SERVICE PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THE “MANAGED METHODS TERMS OF SERVICE” IS AN AGREEMENT (THE “ AGREEMENT ”) ENTERED INTO BETWEEN THE INDIVIDUAL OR CUSTOMER ENTITY (“CUSTOMER”) IDENTIFIED ON ANY ORDER FOR SERVICES (WHETHER FOR TRIAL OR SUBSCRIPTION SERVICES) REFERENCING THIS AGREEMENT (EACH AN “ ORDER ”) AND MANAGED METHODS, INC., A DELAWARE CORPORATION WITH OFFICES AT 719 WALNUT STREET, BOULDER, CO 80302 (“ MANAGED METHODS ”) RELATING TO THE MANAGED METHODS SERVICES. BY (I) CUSTOMER CLICKING THROUGH THIS AGREEMENT ELECTRONICALLY, (II) THE PARTIES ENTERING INTO AN ORDER REFERENCING THIS AGREEMENT, OR (III) CUSTOMER USING THE SERVICES, CUSTOMER AND MANAGED METHODS MUTUALLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREOF INCLUDING IF APPLICABLE THE UPGRADE NOTICE ABOVE. EACH ORDER SHALL BE MUTUALLY AGREED TO AND ENTERED INTO BETWEEN CUSTOMER AND MANAGED METHODS PROVIDED THAT IF CUSTOMER PURCHASES THE SERVICES THROUGH A MANAGED METHODS AUTHORIZED PARTNER (‘RESELLER”), THE ORDER SHALL BE THE ORDER ENTERED INTO BETWEEN MANAGED METHODS AND THE RESELLER FOR CUSTOMER’S USE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN AGENT, EMPLOYEE OR REPRESENTATIVE OF YOUR EMPLOYER, THE TERM “CUSTOMER” MEANS YOUR EMPLOYER AND/OR ANY OTHER PARTY ON WHOSE BEHALF YOU ACT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON SUCH PARTY’S BEHALF. IF YOUR ORGANIZATION HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH MANAGED METHODS SPECIFICALLY RELATING TO THE DELIVERY OF THE MANAGED METHODS SERVICES, THEN THE TERMS OF THAT AGREEMENT SUPERSEDE ANY CONFLICTING TERMS IN THIS AGREEMENT.
2.1 Services License. Managed Methods shall provide the Services as described in an Order. Subject to the terms and conditions of this Agreement and subject to the payment of any applicable fees, Managed Methods grants Customer, during the subscription term specified in an Order, a non-exclusive, non-transferable license (without the right to sub-license) to access and use the Services for Customer’s internal business purposes in accordance with the Documentation. In connection with such use, Customer shall have the right to allow its employees and contractors (“ Authorized Personnel ”) to use the Services on Customer’s behalf. Managed Methods owns all right, title and interest in its Services and in the Managed Methods Intellectual Property including without limitation to the Pre – Existing Intellectual Property. Nothing in this Agreement shall be construed to grant Customer any rights in Managed Methods’ Services beyond those expressly provided for herein.
2.3 Customer Access to the Services. Customer is solely responsible for ensuring that only appropriate Authorized Personnel of Customer have access to the Services, that such Authorized Personnel have been trained in proper use of the Services, and for ensuring proper usage of passwords, tokens and access procedures. Managed Methods reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to notify Managed Methods immediately upon learning of any unauthorized use of Customer’s account or any other breach of security relating to Customer’s use of the Services.
2.4 Free or Beta Versions of the Services. If Customer is using a free trial or proof of concept version of the Services or a beta version of the Services or a beta version of a specific feature within the service, Managed Methods makes such Services available to Customer until the earlier of (a) the end of the free trial or proof of concept period or beta testing period as communicated by Managed Methods, (b) the start date of any purchased version of such Services, or (c) written notice of termination from Managed Methods. Customer is authorized to use a trial or proof of concept version of the Service only for evaluation and not for any commercial or productive purposes. Any data Customer enters into the Services and any customizations made to the Services by or for Customer during the free trial or proof of concept or during the beta testing period will be permanently lost unless Customer (a) has purchased a subscription to the same Services as covered by the free trial or proof of concept or beta version or (b) exports such data before the end of such free period. There is no guarantee that features or functions of the Service available in a beta version of the Service will be available, or if available will be the same, in the general release version of the Service and Customer should review the Service features and functions before making a purchase.
2.5 Hosting. Customer acknowledges that Managed Methods’ Services operate on one or more third-party cloud computing platforms and that Managed Methods shall have the right to change or add to the cloud computing platforms on which its Services operate. Managed Methods shall ensure that any such third party cloud platform provider(s) are covered by an annual SSAE16 SOC2 Type 2 (or higher standard) audit.
2.6 Third-Party Licensing. Customer shall not, directly or indirectly, use the Managed Methods Services as follows: (1) to disassemble, decompile, reverse engineer, recreate or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly permitted by applicable statutory law); (2) to encumber, sublicense, transfer, distribute, rent, lease, time-share or use the Service in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Managed Methods; (3) in a manner that imposes or may impose (as determined by Managed Methods in its sole discretion) an unreasonable or disproportionately large load on the infrastructure of Managed Methods (or its third party providers) or beyond the limits of licensed usage (including without limitation the Service specific usage limitations below); (4) in a manner that interferes or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (5) to bypass any privacy settings or measures used to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (6) run mail list, Listserv, any form of auto-responder or “spam” on the Service; (7) to use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Service in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Service; (8) for purposes other than its intended use as a cloud security solution or in a manner that is inconsistent with the customary use of the Service; (9) to store or transmit viruses or malicious code; (10) to attempt to gain unauthorized access to the Managed Methods Service or their related systems or networks; (11) in a manner which interferes with or disrupt the integrity or performance of the Service; (12) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (13) in any way that is unlawful, illegal, fraudulent or harmful.
If you are in material breach of your obligations as set forth, in addition to any of its other rights or remedies set forth in the Agreement or otherwise available at law or in equity, Managed Methods reserves the right to immediately suspend use of the Service without liability until such breach is cured.
2.7 Use Policy. Customer shall not, directly or indirectly, use the Managed Methods Services as follows: (1) to disassemble, decompile, reverse engineer, recreate or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly permitted by applicable statutory law); (2) to encumber, sublicense, transfer, distribute, rent, lease, time-share or use the Service in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Managed Methods; (3) in a manner that imposes or may impose (as determined by Managed Methods in its sole discretion) an unreasonable or disproportionately large load on the infrastructure of Managed Methods (or its third party providers) or beyond the limits of licensed usage (including without limitation the Service specific usage limitations below); (4) in a manner that interferes or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (5) to bypass any privacy settings or measures used to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (6) run mail list, Listserv, any form of auto-responder or “spam” on the Service; (7) to use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Service in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Service; (8) for purposes other than its intended use as a cloud security solution or in a manner that is inconsistent with the customary use of the Service; (9) to store or transmit viruses or malicious code; (10) to attempt to gain unauthorized access to the Managed Methods Service or their related systems or networks; (11) in a manner which interferes with or disrupt the integrity or performance of the Service; (12) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (13) in any way that is unlawful, illegal, fraudulent or harmful.
If you are in material breach of your obligations as set forth, in addition to any of its other rights or remedies set forth in the Agreement or otherwise available at law or in equity, Managed Methods reserves the right to immediately suspend use of the Service without liability until such breach is cured.
3.1 Data Rights. Customer owns all right, title and interest in all data and/or content created or provided by Customer, and in all data derived therefrom (“ Customer Data ”) excluding the Non-Identifiable Aggregated Data (as defined below). Nothing in this Agreement shall be construed to grant Managed Methods any rights in Customer Data beyond those expressly provided herein. As between Managed Methods and Customer, Customer shall retain possession of the Customer Data at all times. Managed Methods shall implement daily backup of the Customer Data for the purpose of service recovery in the case of service unrecoverable failure, except if Customer specifically requests Managed Methods to disable Managed Methods’ automatic backup procedure. Backup files will also be considered Customer Data. Notwithstanding any other restrictions on use of data in this or any other agreement (i) Customer grants Managed Methods the limited, non-exclusive right to perform an automated content scan of Customer Data stored with Customer’s Cloud Provider solely for the purpose of providing the Services to Customer, (ii) Customer grants Managed Methods the limited, non-exclusive right to view, modify, collect and use the Customer Data to create meta-data derived from Customer Data (which may include, by way of example, file encryption, file modification dates, audit trails, and the number of times a file has been accessed) (“ Customer Meta-Data ”), solely for the purpose of providing the Services to Customer (iii) Customer grants Managed Methods the right to collect and use anonymized generic statistical information derived from such Customer Meta-Data (but not derived from the Customer Data directly) and aggregate it with statistical information from other customers (“ Non-Identifiable Aggregated Data ”) solely for providing and improving its services, and (iv) Customer agrees that Managed Methods shall own all right, title and interest in any such Non-Identifiable Aggregated Data. For purposes of greater clarity, Managed Methods will not store any Customer Data, except to the extent that it constitutes Customer Meta-Data. As between Managed Methods and Customer, Customer is solely responsible for the content, quality and accuracy of Customer Data, for securing any necessary approvals for Managed Methods’ use of the Customer Data as provided for herein, and for ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations. Managed Methods is not responsible for Customer Data once it leaves the Managed Methods Service, including by way of example, if Customer downloads a report from the Service to a Customer personal computer.
3.2 Use of Data. Managed Methods uses the data to set up, administer and provide the Managed Methods Service for organizations. We may also use the information to contact you to further discuss your interest in our company and the Managed Methods Service, to send information regarding our company or partners, such as promotions and events, and to respond to your requests for information. At any time, you have the ability to opt out of receiving marketing communications from us, but you may not opt out of administrative emails. We may provide your personal information to companies that provide services to help us with our business activities such as payment processing or offering customer service through our live chat service. These companies are authorized to use your personal information only as necessary to provide these services to us.
If you request to quote or purchase a 3rd party solution on the Managed Methods platform, Managed Methods will share with your selected 3rd party or its authorized reseller information required in order to provide such quote or fulfill the purchase of the 3rd party license. Such information may include but not limited to total number of users, total number of files, total amount of data stored, average number of file changes per time period, etc. Except as otherwise described in this document, your email address and personal information will not be distributed or shared with any third parties outside Managed Methods.
With your prior express permission, Managed Methods may log into your Managed Methods Service account solely to resolve a problem or support issue. In this case, the Managed Methods personnel investigating the problem would have the same access and abilities that you have when you are logged in to the Managed Methods Service; however, the Managed Methods personnel actions are logged in an immutable audit log.
Managed Methods collects and stores information to monitor and maintain the Managed Methods Service to you. Such information includes system health and availability, CPU and disk utilization over time, etc. The sole purpose of collecting this data is to monitor the availability of your service and to respond to failures in order to restore the service. Managed Methods also aggregates anonymized user data, including document and user meta-data, usage and volume statistical information, and other statistics (but not contact information) from our visitors and Users and may provide such anonymous aggregated information to third parties.
In addition to the above, Managed Methods may in any event use and disclose information disclosed to it or collected by to the extent required by any law, subpoena, legal process, court, judicial, regulatory or governmental authority, or if in Managed Methods’ reasonable discretion use or disclosure is necessary to investigate fraud or any threat to the safety of any individual, to protect Managed Methods’ legal rights or to protect the rights of third parties. In the event that Managed Methods is involved in a merger, reorganization, dissolution, sale of business or assets or similar event, information disclosed to or collected by Managed Methods may be transferred to Managed Methods’ successor, or to the purchaser of such assets, as applicable. You will be notified via email and/or a prominent notice on our Website of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information.
3.3 POLICY TOWARDS K-12 EDUCATION AND CHILDREN. We adhere to the laws of the State of Colorado for Student Data Transparency and Security Act as passed in HB16-1423 and signed into law on June 10, 2016 and the United States Family Educational Rights and Privacy Act of 1974.
3.4 SECURITY. We follow generally accepted industry standards to protect the PII submitted to us, both during transmission and once we receive it. However, due to the nature of Internet communications and evolving technologies, unauthorized entry or use, hardware or software failure, and other factors, the security of Customer Data may be compromised at any time. No method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, we cannot guarantee the absolute security of PII and disclaim any assurance that such information will remain free from loss, misuse, or alteration by third parties who, despite our efforts, obtain unauthorized access.
- SUPPORT; UPDATES AND MAINTENANCE. Managed Methods shall make available to Customers who have paid fees for the Service support, updates, and maintenance in accordance with the Managed Methods Software as a Service License Agreement.
- FEES. Fees for the Service are due annually in advance net thirty (30) days from date of invoice unless the Order specifies otherwise. Fees do not include sales, use, value added or other excise tax. Customer is responsible for payment of all such taxes based on fees paid or payable hereunder (but not taxes based on Managed Methods’, a 3rd party partner, a Reseller’s gross revenues or net income) together with any interest on such taxes if not due to Managed Methods’ or the Reseller’s delay.Delinquent payments may be assessed interest at the rate of one-and-one-half percent per month (or the highest rate permissible by law if less) from the payment due date until paid in full. Fees for the Service are based on “normal usage” of the Service in a manner consistent with its intended purposes and as described in the Documentation. If Customer’s usage is in a manner outside of the intended purposes or otherwise exceeds the quantities listed in the Order or the applicable Service specific usage limits set forth in the Managed Methods Software as a Service License Agreement, then Managed Methods reserves the right to require Customer to either comply with such limits or pay an additional mutually agreed fee, not to exceed Managed Methods’ list price for such additional usage.
6. TERM AND RENEWAL.
6.1 Term and Termination of Agreement. This Agreement shall remain in effect unless or until terminated in accordance with the terms hereof. Either party may terminate this Agreement, upon thirty (30) days prior written notice, for any reason, in the event that there is no Order then in effect.
6.2 Term of Order. Each Order shall remain in effect for the term stated in the Order or, in the case of a trial unless otherwise stated in a trial Order, for so long as Managed Methods determines, unless sooner terminated in accordance with the terms of this Agreement or the Order.
6.3 Renewal of Order. Unless otherwise prohibited by applicable law, the Initial Term will renew automatically for the renewal period provided on the initial order quotation unless (a) either party notifies the other in writing at least thirty (30) days before the end of the current Term of its intention not to renew the Cloud Service. We will notify You reasonably in advance of any Renewal if there are any fee changes. If You agree with the fee changes, You may do nothing and the new fees will apply for the upcoming Renewal Term. If this Agreement is terminated for any reason, You will pay the fees for the Cloud Service provided up to the effective date of termination.
6.4 Termination or Suspension of an Order. Either party may terminate an Order upon written notice to the other party if the other party materially breaches this Agreement or the Order and fails to cure such breach within thirty (30) days after receiving written notice of such breach. Managed Methods may terminate an Order and/or suspend the Services upon written notice to Customer if Managed Methods has not received payment for such Services and if such failure is not cured within thirty (30) days after Managed Methods provides written notice of such failure.
6.5 Effect of Termination. Upon termination of an Order (i) Managed Methods will immediately stop Services; (ii) Customer will have Fourteen (14) days after termination to export any existing data, after which Managed Methods will delete any Customer Data; (iii) each party will use commercially reasonable efforts to return any tangible Confidential Information and destroy any electronic Confidential Information of the other party within its possession or control; Customer acknowledges that, prior to termination and fourteen (14) days after termination, Customer is responsible for exporting any Customer Data to which Customer desires continued access after termination. The provisions of Sections 3, 5, 6.5, 7, 8, 9, 10, 11, 13, 14 and 15 shall survive termination.
7. CONFIDENTIALITY. Each party may have access to information that is confidential or proprietary to the other party and/or its Affiliates. For purposes of this Agreement, “ Confidential Information ” means the confidential information of a party and/or its Affiliates which is made available in connection with this Agreement, whether disclosed in written, oral, electronic, visual or other form, which is identified as confidential at the time of disclosure or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation information regarding a party’s business, operations, finances, technologies, current and future products and services, pricing, personnel, customer and suppliers and (i) with regard to Customer, the Customer Data and Customer Pre-existing Intellectual Property, and (ii) with regard to Managed Methods, the Services and Managed Methods Pre-existing Intellectual Property. The receiving party will use the disclosing party’s Confidential Information solely as necessary in connection with the performance of this Agreement. The receiving party shall maintain the confidentiality of the disclosing party’s Confidential Information using at least the same degree of care that such party uses to protect its own Confidential Information of a similar nature, and shall restrict disclosure of the disclosing party’s Confidential Information to its employees, consultants, contractors, agents and representatives who have a need to know such information and are bound by obligations of confidentiality and non-use no less restrictive than those set forth herein; provided, that a party may disclose the disclosing party’s Confidential Information if required by law and provided the receiving party provides prompt notice of such requirement and disclosure to the other party to the extent allowed by law. Confidential Information excludes information to the extent such information (i) is or becomes part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and was not obtained directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
8 WARRANTIES AND DISCLAIMERS.
8.1 Limited Services Warranty. Managed Methods warrants that the Services will perform in substantial conformity with the Documentation. Customer shall be required to report any breach of warranty to Managed Methods within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred. Managed Methods’ sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of this warranty will be for Managed Methods, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if Managed Methods fails to correct the breach within such cure period, Customer may terminate the affected Order and, in such event, Managed Methods shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis.
8.2 Compliance with Laws. Each party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
8.3 Disclaimer. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES GIVEN BY Managed Methods WITH RESPECT TO THE SERVICES OR THIS AGREEMENT. Managed Methods DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, FREE OF DEFECT OR ERROR, NON-INFRINGING, OR FIT FOR ANY PARTICULAR PURPOSE. Managed Methods DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF THE SERVICES. NOTWITHSTANDING THE EXPRESS WARRANTY SET FORTH ABOVE, Managed Methods MAKES NO WARRANTY WHATSOEVER TO CUSTOMERS USING A FREE OR TRIAL OR BETA VERSION OF THE SERVICES (“ NONPAYING CUSTOMERS ”) OR USING ANY COMPONENT OF THE SERVICE THAT IS IDENTIFIED BY Managed Methods AS A SAMPLE OR ANY SAMPLE REFERENCED IN THE DOCUMENTATION, AND PROVIDES SUCH SERVICES TO NONPAYING CUSTOMERS AND ALL SAMPLES “AS IS” AND “AS AVAILABLE.” CUSTOMER UNDERSTANDS THAT IF API’S ARE SUPPLIED WITH THE SERVICE, THEN SUCH APIS ARE SUBJECT TO CHANGE AND ASSUMES THE ASSOCIATED RISKS OF USING API’S FOR DEVELOPMENT PURPOSES. CUSTOMER AGREES THAT ITS PURCHASES HEREUNDER ARE FOR THE CURRENTLY AVAILABLE SERVICES AND ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY MANAGED METHODS REGARDING FUTURE FUNCTIONALITY OR FEATURES.
9.1 Services Indemnity. Managed Methods shall defend, at its expense, any claim, action or proceeding (“ Claim ”) brought by a third party against Customer and/or its Affiliates and their officers, directors and employees (the “ Customer Indemnified Parties ”) arising from an alleged infringement or violation by the Services of a third party’s patent, copyright or trade secret, and shall indemnify and hold the Customer Indemnified Parties harmless against all damages and costs finally awarded against the Customer Indemnified Parties in connection with such Claim; provided that Managed Methods shall not be responsible for any Claim to the extent arising from (i) use of the Services in violation of the terms of this Agreement, or (ii) use of the Services in combination with software, hardware, systems or data provided or controlled by Customer or a third party to the extent the Claim would not have arisen but for such combination. If the Services become, or in Managed Methods’ opinion are likely to become, the subject of a valid claim of infringement or the like under any patent, copyright or trade secret law, Managed Methods shall have the right, at its option and expense, either to (i) obtain for Customer a license permitting the continued use of the Services, (ii) replace or modify the Services so that they become non-infringing, or (iii) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis. The indemnification obligations of Managed Methods in this Section are not applicable to Nonpaying Customers.
9.2 Customer Data and Use Indemnity. Customer shall defend, at its expense, any Claim brought by a third party against Managed Methods and/or its Affiliates or their officers, directors and employees (the “ Managed Methods Indemnified Parties ”) arising from an alleged infringement or violation by the Customer Data of a third party patent, copyright or trade secret, or Managed Methods’ use of the Customer Data in accordance with the terms of this Agreement; and Customer shall indemnify and hold the Managed Methods Indemnified Parties harmless against all damages and costs awarded against the Managed Methods Indemnified Parties in connection with such Claim.
9.3 Indemnification Process and Exclusivity. The indemnifying party shall have sole control over the defense and settlement of any claim for which it has provided indemnity; provided that the indemnified party shall have the right to provide for its separate defense at its own expense. The indemnified party shall give prompt notice of any claim for which indemnity is sought and shall cooperate in defending against such claim at the indemnifying party’s expense. The rights and remedies set forth in this Section 9 state a party’s sole and exclusive liability and the other party’s sole and exclusive rights and remedies with regard to any third-party claim for infringement or violation of a third party’s intellectual property.
- Limitations of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, TORT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF OR DAMAGE TO SOFTWARE OR DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES FURNISHED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT ANY DAMAGES, LIABILITY, LOSSES, COSTS OR EXPENSES INCURRED BY A PARTY WHICH ARE PAYABLE TO A THIRD PARTY AS PART OF AN INDEMNIFICATION OBLIGATION HEREUNDER SHALL NOT BE SUBJECT TO THE FOREGOING EXCLUSION OF LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HEREUNDER EXCEED THE TOTAL OF THE FEES PAID AND PAYABLE BY CUSTOMER TO Managed Methods FOR THE THEN CURRENT SUBSCRIPTION TERM OF THE ORDER TO WHICH THE CLAIM RELATES. THE LIMITATIONS OF LIABILITY IN THIS PARAGRAPH APPLY WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR OTHERWISE. HOWEVER, NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF SERVICE OR ANY ORDER, NO EXCLUSION OR LIMITATION OF LIABILITY SHALL APPLY TO ANY LIABILITY BASED ON FRAUD OR WILLFUL MISCONDUCT.
- U.S. GOVERNMENT RESTRICTED RIGHTS; EXPORT RESTRICTIONS. If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that (a) the Services (including any software forming a part thereof) were developed entirely at private expense, (b) the Services (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to Managed Methods, (c) the Services (including any software forming a part thereof) are not in the public domain, and (d) the software forming a part of the Services is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014 or FAR Part 12.212. Customer agrees not to store or process any data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access to or use of the Services in any U.S. embargoed country or in violation of any U.S. export laws or regulations.
- PUBLICITY. Neither party shall use any of the Marks or other trademarks of the other party in any public manner without the party’s prior written consent. Subject to written consent and to the limitations set forth within such consent, either party may use the other party’s name and/or logo (the “Marks”) on its website, customer or vendor list (as applicable) or other marketing materials to refer to the relationship between the parties pursuant to this Agreement. All such use shall be in accordance with the usage policies and guidelines of the party owning the Marks and provided in writing to the other party. If the owner of the Marks objects to any such use or wishes to revoke its permission to use its Marks hereunder, the other party shall cease any such use promptly after receiving notification. Neither party’s use of the other party’s Marks implies or confers any endorsement by either party.
- SERVICE SUGGESTIONS. If Customer provides Managed Methods with ideas or suggestions for improvements or changes to the Service (“Suggestions”), Customer hereby assigns to Managed Methods ownership of such Suggestions and Managed Methods will have sole discretion as to whether and how to implement such Suggestions into the Service.
- GENERAL PROVISIONS.
15.1 Notices. All notices under this Agreement shall be made in writing and delivered to each party at the address under its signature hereto. Notices shall be deemed delivered (i) upon personal delivery with signature required, (ii) one Business Day after they have been sent to the recipient by reputable overnight courier service (charges prepaid and signature required), or (iii) upon successful transmission of an email containing such notice if sent between 9 a.m. and 5 p.m., local time of the recipient, on any Business Day, and as of 9 a.m. local time of the recipient on the next Business Day if sent at any other time, or (iv) three Business Days after deposit in the mail. “Business Day” as used in this Section 15.1 shall mean any day other than Saturday, Sunday or a day on which banks are required or authorized by law to be closed in the city of Boulder, Colorado, USA.
15.2 Entire Agreement. This Agreement, including all Orders and any exhibits or attachments referenced herein, represent the entire agreement between Customer and Managed Methods with respect to the subject matter hereof, and supersedes all prior proposals, representations and agreements, whether written or oral, with respect thereto. This Agreement shall govern with respect to all Orders and forms of purchases, whether submitted through electronic transmissions or otherwise, unless otherwise agreed by both parties in writing. Unless the Order expressly amends this Agreement, the terms and conditions of this Agreement shall take precedence over any conflicting terms in the Order. Any waiver, amendment, or modification of any right or remedy, in whole or in part under this Agreement, or any additional or different terms in any purchase orders, acknowledgments or other documents other than the Order, will not be effective unless expressly agreed to by both parties in writing or electronic form. If Customer issues a purchase order in connection with an Order, such purchase order shall be solely for Customer’s internal administrative purposes and to facilitate payment. In no event shall the terms of such purchase order modify or become part of these Terms of Service or become binding on Managed Methods even if Managed Methods signs an acknowledgment copy of such purchase order.
15.3 Assignment and Subcontractors. Except as expressly provided for herein, this Agreement may not be assigned by either party without the prior written consent of the other party, including by reason of a change of control or by operation of law. Managed Methods may assign this Agreement, without consent, in whole (but not in part), to a successor in interest to its business including in connection with a change of control, merger, acquisition, sale of all or substantially all of its assets, or similar transaction. Managed Methods may use subcontractors in connection with the performance of the Services provided that it shall be responsible for the acts and omissions of its subcontractors to the same extent as it would be responsible hereunder for its own acts and omissions. The terms of this Agreement shall be binding upon the permitted successors and assigns of each party.
15.4 Governing Law. The terms of this Agreement shall be construed in accordance with the substantive laws of the State of Colorado without regard to its principles of conflict of law or the U.N. Convention on Contracts for the International Sale of Goods. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the governing state laws.
15.5 Force Majeure. Neither party shall be liable for any breach of this Agreement to the extent that such breach arises from factors outside its reasonable control. Customer’s subscription to the Services is predicated on Customer’s use of cloud computing services provided by a third party cloud service provider, and Managed Methods will not be responsible for the acts or omissions of Customer’s cloud service provider.
15.6 Severability. It is intended that this Agreement shall not violate any applicable law and the unenforceability or invalidity of any provision (other than the provisions obligating Customer to make payments to Managed Methods) shall not affect the force and validity of the remaining provisions and such provisions determined to be invalid shall be deemed severed from this Agreement and, to the extent possible, be replaced with terms which as closely as possible approximate the interest and economic intent of such invalid provisions.