SaaS Terms and Conditions

THESE MASTERCONTROL SAAS TERMS AND CONDITIONS, along with any Quotations (as defined below) entered into by and between the parties, attached and/or incorporated by reference, are part of an agreement entered into by MASTERCONTROL SOLUTIONS, INC., a Delaware corporation, with its principal place of business at 6350 South 3000 East, Salt Lake City, UT 84121 (“MasterControl”) and the party executing this Agreement as “Client”. This Agreement sets forth the terms and conditions that govern orders placed under this Agreement, as such orders are detailed in each Quotation.

 

1. DEFINITIONS.

 

1.1 “Acceptable Use Policy” means MasterControl’s acceptable use policy, made available at https://www.mastercontrol.com/legal/terms/.

1.2 “Affiliate” means, with respect to either party, any person, firm, corporation, trust or other entity or combination thereof which directly or indirectly controls, is controlled by or is under common control with such party; the term “control” meaning an ownership of at least 50% or more of the voting and equity rights, of such person, firm, trust, corporation, or other entity (or combination thereof) or the power to direct the management of such person, firm, trust, corporation, or other entity (or combination thereof).

1.3 “Agreement” means, collectively, the terms set forth below, and the attached exhibits, schedules, and amendments hereto, as well as any Quotation agreed to by the parties, each of which are incorporated herein by this reference.

1.4 “Client Content” means any Client logos, trademarks, trade names, service marks, and all other content transmitted by Client or its Users to or through the Service, or otherwise provided to MasterControl for use in providing the Service. Client Content is non-essential to Client’s use of the Service and accordingly, Client Content does not mean or include Client Data.

1.5 “Client Data” means any Client-specific data, information, and managed documents provided or submitted by Client or Users to or through the Service. For the avoidance of doubt, Client Data does not include Resultant Data.

1.6 “Client Materials” means Client Content and Client Data, collectively.

1.7 “Confidential Information” means this Agreement, the MasterControl Technology, MasterControl pricing information, and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) in connection with this Agreement that the Discloser considers confidential or proprietary, including information consisting of or relating to the Discloser’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Discloser has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the generality of the foregoing, the Client Data is Client’s Confidential Information and all non-public information pertaining to the Service and MasterControl Technology is MasterControl’s Confidential Information.

1.8 “Effective Date” means the date on which this Agreement becomes effective. For clarity, the “Effective Date” will be the last date of signature on the Agreement unless otherwise specified in the initial Quotation entered into hereunder.

1.9 “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Service.

1.10 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

1.11 “MasterControl Technology” means MasterControl’s proprietary software and other technology provided via the Service, including any enhancements, modifications, and derivative works of any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto. For the avoidance of doubt, MasterControl Technology includes Resultant Data and any information, data, or other content derived from MasterControl’s monitoring of Client’s access to or use of the Service, but does not include Client Data.

1.12 “Offering-Specific Terms” means the offering-specific terms located at https://www.mastercontrol.com/legal/ that supplement this Agreement with regard to any Optional Offerings.

1.13 “Optional Offerings” means optional features, functionality, or other offerings that Client may use in connection with or as part of the Services, and subject to the applicable Offering-Specific Terms.

1.14 “Professional Services” means any configuration, implementation, and/or training services that MasterControl provides to Client in support of or in addition to the Services.

1.15 “Quotation” means a MasterControl-provided document executed by Client, which details the Service(s) to be provided by MasterControl, the fees associated therewith, the dates of the Service Term(s), and any other transaction-specific terms and conditions. In the event that multiple Quotations will apply to this Agreement, such Quotations will have a unique identifier. Any and all Quotation(s) are deemed incorporated herein by this reference. Each Quotation is intended to define a separate contract particular to that order, incorporating by reference the terms and conditions of the applicable portions of this Agreement. A Quotation may also contain other terms or conditions, mutually agreed upon by MasterControl and Client, which apply specifically to that particular order/contract.

1.16 “Resultant Data” means data and information related to Client’s use of the Service that is used by MasterControl in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

1.17 “Service(s)” means MasterControl’s hosted service described in a Quotation.

1.18 “Service Term(s)” means the Quotation-specified period(s) during which Users may use the Service, unless earlier terminated pursuant to the terms of this Agreement (or the applicable Quotation).

1.19 “User” means Client’s employees, representatives, consultants, contractors, Affiliates, or agents who are authorized to use the Service and have been supplied user identifications and passwords by Client (or by MasterControl at Client’s request).

 

2. PROVISION OF SERVICE AND MASTERCONTROL TECHNOLOGY.

 

2.1 Provision of Service; Access Right. Subject to the terms and conditions of this Agreement, during the applicable Service Term, MasterControl will provide Client with the Service described on one or more Quotation(s), and Client will have a non-exclusive, non-sublicenseable, and nontransferable (except in accordance with Section 12.2) right to access and use the Service and use and display the MasterControl Technology during the applicable Service Term, solely for Client’s internal business purposes. Client may allow Client’s Users to use the Service for this purpose, and Client is responsible for their compliance with this Agreement and the Quotation. The Service includes the standard, currently available features and functionality applicable to the Service, and any new features that augment or enhance such Service, excluding any new modules that MasterControl markets and sells as a separate product. MasterControl will provide the Service and may update the content, functionality, and user interface of the Service from time to time, provided that such updates will not materially reduce or degrade the features or functions of the Service. Unless otherwise specified in the applicable Quotation, the Services are purchased on a subscription basis. MasterControl reserves all rights not expressly granted hereunder. MasterControl may create and maintain administrative, support, system, and maintenance accounts within the Service, all with Client Data access for MasterControl and its assigned operators and/or other service providers, in order to deliver the Service. Client acknowledges that the Service is hosted. Accordingly, in order to use the Service, Client understands that: (a) Client must independently have or must independently obtain Internet access, either directly or through devices that access Web-based content, as well as browser software that supports protocols used by MasterControl; (b) Client must follow logon procedures for the Services that support such protocols; and (c) MasterControl assumes no responsibility for the foregoing set forth in (a) and (b).

2.2 Access and License Restrictions. Client will not, and will not cause or permit others to: (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit for the benefit of a third party the Service or MasterControl Technology; (ii) modify or create derivative works based on the Service or MasterControl Technology; (iii) “frame” or “mirror” any content provided in connection with the Service; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service or MasterControl Technology, in whole or in part; (v) use the Service or MasterControl Technology to violate MasterControl’s intellectual property rights or otherwise compete with MasterControl, including by (a) copying any features, functions, user interface, or graphics of the Service or MasterControl Technology or (b) using the Service or MasterControl Technology to assist in the creation of similar or competitive products or services; (vi) allow User subscriptions to be shared or used by more than one individual User (except that User subscriptions may be reassigned to new Users replacing individuals who have terminated employment or otherwise changed job status or function and no longer need to use the Service for the purposes described in Section 2.1); (vii) use the Service: (a) to knowingly send unsolicited or unlawful messages; (b) to knowingly send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights; (c) to knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; or (d) in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates applicable law; (viii) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (ix) bypass or breach any security device or protection used by the Service or attempt to gain unauthorized access to the Service or its related systems or networks; (x) provide, disclose to, or enable use of the Service or MasterControl Technology by persons other than Users; or (xi) use the Service or MasterControl Technology in violation of the Acceptable Use Policy.

2.3 Service Level. During the Service Term, MasterControl will maintain the availability of the Service platform production environment in accordance with MasterControl’s standard service level terms, as detailed in MasterControl’s “SaaS Service Level Terms” located at https://www.mastercontrol.com/legal/sla/. MasterControl reserves the right to update the service level terms or any support policies from time to time, provided that no such update will materially and adversely affect Client’s rights as provided under the preceding service level commitment or support policy.

2.4 Storage and License Limits. MasterControl reserves the right to invoice Client for and to the extent Client exceeds any maximum storage capacity or number of subscription licenses specified in the Quotation.

2.5 Professional Services. MasterControl will provide such resources and utilize such MasterControl employees and/or consultants as MasterControl deems necessary to perform the Professional Services described in a Quotation. The manner, method, means, and personnel used by MasterControl to perform the Professional Services are subject to MasterControl’s sole discretion. Client agrees to provide MasterControl with any required Client Materials needed for MasterControl to perform the Professional Services, and Client hereby grants MasterControl a royalty-free, non-exclusive, worldwide license to use such materials for the sole purpose of enabling MasterControl to perform the Professional Services. Client agrees to cooperate in good faith to allow MasterControl to achieve completion of the Professional Services in a timely and professional manner. If performance of any particular Professional Service is dependent upon performance of tasks by Client or by a third party outside of MasterControl’s control, and the Client or third party causes the delay, then the projected dates for performing such Professional Service will be reasonably adjusted. Client acknowledges and agrees that: (a) MasterControl is not a contract development services provider; (b) this Agreement does not include any programming services for new software development or software modifications; and (c) MasterControl is not providing to Client any MasterControl Technology pursuant to this Section 2.5 and, instead, such MasterControl Technology (and the associated Service) is being provided, if at all, pursuant to the terms of Section 2.1 (Provision of Service; Access Right) and subject to the restrictions set forth in Section 2.2 (Access and License Restrictions). Without limiting the generality of the foregoing, Client further acknowledges that the Service and MasterControl Technology are significant and valuable assets of MasterControl’s business and, as such, MasterControl shall have complete control of the design and development of the Service and MasterControl Technology, including any and all updates thereto. Therefore, MasterControl has the right, and sole discretion, to reject any request for enhancement or modification to the Service and/or MasterControl Technology by Client. Should Client request a modification of any element of the Service or MasterControl Technology, and should MasterControl, in its sole discretion, elect to provide such modification, Client understands that such modification may form a part of the Service and, if so, will be subject to the terms and conditions of this Agreement.

2.6 Purchases by Affiliates. Any Client Affiliate may enter into separate Quotations with MasterControl under this Agreement. Each such Quotation must specifically incorporate this Agreement by reference or Client Affiliate shall sign an Affiliate Agreement confirming acceptance of this Agreement, and will be deemed a separate contract between the parties who execute it, independent of any other Quotation. Each Client Affiliate will only be liable for the obligations expressly set forth in a Quotation to which it has agreed. A Quotation executed by one Client Affiliate may also cover use by other Client Affiliate(s), to the extent set forth in that Quotation; in such cases, the Client Affiliate executing the Quotation or Affiliate Agreement will remain fully liable for the acts and omissions of all such covered Client Affiliates. Where a Quotation is executed by MasterControl and a Client Affiliate, the term “Client” used in this Agreement will be deemed to refer to the executing Client Affiliate where required.

 

3. CLIENT RESPONSIBILITIES.

 

3.1 Responsibility for Users. Client will abide by all applicable laws, treaties, and regulations in connection with use of the Service. Client acknowledges and agrees that each User (or any person logging into the Service using a User’s access credentials) will be considered an authorized Client agent, and that Client will be responsible and liable for the acts and omissions of all such use of the Service (including the provision, receipt, and/or other processing of Client Materials) under Client’s account. Client acknowledges that Client’s access information, including User IDs and passwords of its Users, will be Client’s “key” to the Service and, accordingly, Client will be responsible for maintaining the confidentiality of such access information (including each User ID and password). Client will: (i) notify MasterControl promptly if it becomes aware of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to MasterControl immediately and use reasonable efforts to promptly stop any copying or distribution of MasterControl Technology that is known or suspected by Client or Client’s Users; and (iii) not impersonate another MasterControl user or provide false identity information to gain access to or use the Service.

3.2 Responsibility for Client Data. MasterControl does not own any Client Data. Client, not MasterControl, will have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Client Data, and MasterControl will not be responsible or liable for the deletion, correction, destruction, damage, or loss of Client Data not caused by MasterControl.

 

4. INTELLECTUAL PROPERTY OWNERSHIP.

 

4.1 By Client. As between MasterControl and Client, Client owns all right, title and interest, including all related Intellectual Property Rights, in and to the Client Materials.

4.2 By MasterControl. Except with regard to the access rights and restrictions as expressly set forth in Section 2, MasterControl owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Service and the MasterControl Technology. Client acknowledges that the MasterControl name, the MasterControl logo, and the product names associated with the Service are trademarks of MasterControl or third parties, and no license to such marks is granted herein.

 

5. USE OF AGGREGATE INFORMATION. Client acknowledges and agrees that Resultant Data will be collected by MasterControl through the Service for benchmarking purposes. MasterControl may use this data, anonymously, for benchmarking studies and Service improvement purposes. Client's identity will not be associated with such data, and such data will not include any Client Materials.

 

6. BILLING AND PAYMENT.

 

6.1 Fees; Payment. Client will pay all undisputed fees or charges to Client’s account pursuant to the Quotation. Unless otherwise set forth in a Quotation, undisputed amounts are due and payable within thirty (30) days following the date of the invoice therefor. If Client reasonably disputes any invoice, Client will notify MasterControl in writing thereof prior to the invoice due date, and the parties will promptly confer in good faith to resolve such dispute. Client will have the right to withhold the disputed amount until the resolution of the dispute, but will pay all undisputed amounts in the invoice in accordance with the payment terms set forth herein. Except as otherwise specified herein or in a Quotation: (i) fees are quoted and payable in United States dollars, (ii) except as outlined in Section 2.4 (Storage and Licenses Limits), fees are quoted based on services, data volume, and licenses purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable except as set forth in Sections 7.3 and 9.1 of this Agreement, and (iv) the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Quotation.

6.2 Taxes. All fees are exclusive of all taxes, levies, or duties, and Client will be responsible for payment of all such taxes, levies, or duties, excluding United States (federal or state) taxes based solely on MasterControl’s income. Client will pay all fees free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees will be Client’s responsibility, and Client will provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid upon request by MasterControl.

6.3 Effect of Nonpayment. This Agreement, and Client’s access to the Service, may be suspended or terminated if Client’s account falls into arrears. Unpaid, undisputed amounts are subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus all collection costs. Client will continue to be charged for Services during any period of suspension. Upon termination of this Agreement, Client will pay the balance due on Client’s account, subject to the provisions of Section 7.3 (Effect of Termination; Survival).

 

7. TERM; TERMINATION.

 

7.1 Term; Termination. This Agreement commences on the Effective Date and, unless earlier terminated pursuant to the terms of this Agreement, will continue for so long as there is a Quotation in effect between the parties. With regard to each Quotation, if this Agreement has not terminated early, at least sixty (60) days prior to the expiration of a Service Term, MasterControl will provide Client with a detailed renewal estimate, and at least thirty (30) days prior to the expiration of a Service Term, Client will, subject to this section, either: (a) renew the Service Term for a renewal Service Term equal in length to the then-current Service Term, or such other renewal period specified in the applicable Quotation, at MasterControl’s then-current fees or such other fees as the parties may mutually agree (provided that MasterControl continues to make the applicable Service modules available); or (b) allow the Service Term to expire. In the event that Client fails to elect either (a) or (b), then (a) will apply. Either party may terminate this Agreement (or any Quotation) upon the other party’s material breach that remains uncured for thirty (30) days following written notice of such breach, except that in the event of a breach of Section 2.2 (Access and License Restrictions) or 11 (Confidentiality), the cure period is five (5) days. Client agrees that MasterControl reserves the right to modify, or discontinue offering, any Service module effective as of the conclusion of Client’s then-current Service Term, and that MasterControl will not be liable to Client or to any third party claiming through Client, for any such modification of the Service.

7.2 Treatment of Client Data Following Expiration or Termination. Client agrees that following the Service Term, or termination of this Agreement or Quotation (as applicable), Client’s account and use of the Service will be deactivated, provided, however, that MasterControl will, upon Client’s written request, provide Client an electronic file containing the Client Data. Client further agrees that MasterControl will not be liable to Client nor to any third party claiming through Client for any termination of Client access to the Service or deletion of Client Data, provided that MasterControl is in compliance with the terms of this section.

7.3 Effect of Termination; Survival. Upon the expiration or early termination of this Agreement: (a) any amounts (including expenses) owed to MasterControl for completed Professional Services and work in progress, as well as fees applicable to the duration of the terminated Service Term, will be immediately due and payable (provided, however, that, if this Agreement is terminated by Client for MasterControl’s material breach in accordance with Section 7.1, no fees applicable to the remaining duration of the Service Term (i.e., following the effective date of termination) are due and, if such fees have prepaid by Client, Client will be entitled to receive a prorated refund of such prepaid fees applicable to the remaining period in the then-current Service Term (i.e., post-termination); (b) all subscriptions granted under this Agreement and MasterControl’s obligation to provide the Service and MasterControl Technology, and Client’s right to access the foregoing, will terminate; (c) Client Data will be returned or deleted pursuant to Section 7.2 (Treatment of Client Data Following Expiration or Termination); and (d) Sections 1 (Definitions), 2.2 (Access and License Restrictions), 3 (Client Responsibilities), 4 (Intellectual Property Ownership), 5 (Use of Aggregate Information), 6 (Billing and Payment), 7.2 (Treatment of Client Data Following Expiration or Termination), 7.3 (Effect of Termination; Survival), 8 (Representations and Warranties), 9 (Indemnification), 10 (Limitation of Liability), 11 (Confidentiality), and 12 (General) will survive.

 

8. REPRESENTATIONS AND WARRANTIES.

 

8.1 By Each Party. Each party represents and warrants that it has the corporate power and authority to enter into this Agreement and that its signatory is fully authorized to execute this Agreement on its behalf.

8.2 By MasterControl.

(a) Noninfringement. MasterControl represents and warrants that the Service, when used in accordance with this Agreement, does not and will not infringe or misappropriate any third party’s copyright, patent, trademark, or trade secret rights. As MasterControl’s sole and exclusive obligation and Client’s sole and exclusive remedy for breach of the foregoing warranty, MasterControl will indemnify Client as set forth in Section 9 (Indemnification).

(b) Performance. MasterControl represents and warrants that any implementation services performed will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Client will have thirty (30) days following the completion of implementation to notify MasterControl of a breach of the foregoing warranty, in which event, as MasterControl’s entire obligation and Client’s sole and exclusive remedy, MasterControl will either reperform the implementation services in a conforming manner, or refund the fees paid by Client for the nonconforming implementation services.

8.3 By Client. Client represents and warrants that Client has the right to provide the Client Materials to MasterControl or otherwise process the Client Materials through the Services in connection with this Agreement, and that the Client Materials are accurate and complete, and do not and will not violate the terms or conditions of this Agreement, applicable law, or infringe or misappropriate any third party’s Intellectual Property Rights, privacy rights, or license restrictions, including with regard to any licensed images or fonts. As Client’s sole and exclusive obligation and MasterControl’s sole and exclusive remedy for breach of the foregoing warranty, Client will indemnify MasterControl as set forth in Section 9 (Indemnification).

 

8.4 Warranty Disclaimers.

(a) General. EXCEPT AS WARRANTED IN SECTION 8.1-8.3 INCLUSIVE, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CLIENT ACKNOWLEDGES AND AGREES THAT MASTERCONTROL’S PRICING IS PREDICATED ON MASTERCONTROL’S STANDARD REPRESENTATIONS AND WARRANTIES BEING OFFERED TO CLIENT, AND THAT NON-STANDARD REPRESENTATIONS AND/OR WARRANTIES ARE NEITHER OFFERED NOR AVAILABLE.

(b) Electronic Communications. MASTERCONTROL’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS THAT ARE BEYOND MASTERCONTROL’S CONTROL AND INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. MASTERCONTROL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT UNDERSTANDS THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS IS ESSENTIAL TO CLIENT’S USE OF THE SERVICE. CLIENT CONSENTS TO MASTERCONTROL’S RECEIPT AND STORAGE OF ELECTRONIC COMMUNICATIONS AND/OR CLIENT CONTENT SOLELY FOR PURPOSES OF PROVIDING THE SERVICE IN ACCORDANCE WITH THIS AGREEMENT, AND CLIENT UNDERSTANDS THAT SUCH RECEIPT AND STORAGE WILL INVOLVE TRANSMISSION OVER THE INTERNET AND OVER VARIOUS NETWORKS THAT MAY NOT BE OWNED, OPERATED, OR CONTROLLED BY MASTERCONTROL. CLIENT ACKNOWLEDGES THAT CHANGES TO CLIENT MATERIALS MAY OCCUR (INCLUDING ENCRYPTION AND COMPRESSION) IN ORDER TO CONFORM AND ADAPT CLIENT MATERIALS TO THE TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS AND/OR DEVICES. CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT, WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK FACILITIES, AND TELEPHONE OR OTHER ELECTRONIC MEANS, ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES. ACCORDINGLY, ALTHOUGH MASTERCONTROL EMPLOYS CURRENT ENCRYPTION STANDARDS IN ACCORDANCE WITH INDUSTRY STANDARDS IN AN EFFORT TO MAINTAIN CLIENT DATA AS SECURE, CLIENT AGREES THAT MASTERCONTROL IS NOT RESPONSIBLE FOR ANY DELAY, LOSS, ALTERATION, OR INTERCEPTION OF ELECTRONIC COMMUNICATIONS AND/OR CLIENT MATERIALS.

(c) Future Functionality. CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT’S PURCHASES HEREUNDER ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY ORAL OR WRITTEN STATEMENTS MADE BY MASTERCONTROL REGARDING FUTURE FUNCTIONALITY OR FEATURES.

(d) No Independent Verification of Client Materials. CLIENT ACKNOWLEDGES AND AGREES THAT MASTERCONTROL MAY, IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIALS, AND OTHER INFORMATION FURNISHED BY CLIENT WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND THAT MASTERCONTROL WILL BE ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION IN PERFORMING THE SERVICES. IN PERFORMING PROFESSIONAL SERVICES, MASTERCONTROL MAY BE MAKING RECOMMENDATIONS AND PROVIDING ADVICE, BUT ALL DECISIONS AS TO IMPLEMENTING SUCH ADVICE AND RECOMMENDATIONS WILL BE MADE BY AND WILL BE THE SOLE RESPONSIBILITY OF CLIENT; MASTERCONTROL WILL NOT BE LIABLE TO CLIENT FOR ANY RESULT OBTAINED OR NOT OBTAINED AS A CONSEQUENCE OF CLIENT'S IMPLEMENTATION OF SUCH ADVICE OR RECOMMENDATIONS.

(e) No Substitute for Client’s Professional Judgment. MASTERCONTROL MAKES NO REPRESENTATIONS AND WARRANTIES ABOUT THE IMPACT OF CLIENT’S USE OF THE SERVICES. CLIENT ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICES AND THE INFORMATION CONTAINED THEREIN IS INTENDED TO SERVE AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, AND JUDGMENT OF INDIVIDUALS WITHIN CLIENT’S INDUSTRY. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, CLIENT IS INDEPENDENTLY RESPONSIBLE FOR ENSURING THAT CLIENT’S USE OF THE SERVICE COMPLIES WITH ALL FEDERAL, STATE, PROVINCIAL, AND LOCAL LAWS AND REGULATIONS.

 

9. INDEMNIFICATION.

 

9.1 By MasterControl. MasterControl will indemnify, defend, and hold harmless Client, its officers, directors, employees, agents and representatives against any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) incurred by Client resulting from any action by a third party (other than an Affiliate of Client) alleging that the Service directly infringes or misappropriates such third party’s US copyright, patent, trademark, or trade secret. If the Service or MasterControl Technology becomes, or in MasterControl’s opinion is likely to become, the subject of an infringement claim and its use is enjoined, MasterControl may, at its option, either: (1) procure for Client the right to continue using the Service or MasterControl Technology as permitted under this Agreement, (2) replace or modify the Service or MasterControl Technology so that it becomes non-infringing, or if after attempting (1) and (2), MasterControl determines that neither is feasible, then MasterControl will: (3) terminate Client’s use of the Service or MasterControl Technology and give Client a prorated refund of the subscription paid by Client, less a reasonable allowance for the period of time Client has had access to the Service or MasterControl Technology (based on the number of months in the applicable payment period (e.g., for an annual payment, the refund will be prorated over 12 months), in which event, Client’s right to use the applicable Service and/or MasterControl Technology will immediately terminate. MasterControl will have no obligations under this Section 9 or otherwise for claims arising from: (i) Client’s or any User’s use of the Service other than as permitted under this Agreement; (ii) the combination of the Service with any Client Materials or any Client or third party products, services, hardware, data, content, or business process(s); (iii) failure by Client to timely implement any modifications, upgrades, replacements, or enhancements made available to Client by or on behalf of MasterControl; or (iv) from the modification of the Service or any MasterControl Technology by any party other than MasterControl or MasterControl’s agents. The foregoing is MasterControl’s sole and exclusive obligation for the foregoing third party claims.

9.2 By Client. Client will indemnify, defend and hold MasterControl harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with a claim (a) alleging that use of the Client Materials infringes a copyright, trademark, or trade secret, privacy, or publicity rights of a third party; or (b) arising from the breach of this Agreement by Client or Client’s Users. The foregoing is Client’s sole and exclusive obligation, and MasterControl’s sole and exclusive remedy, for the foregoing third party claims.

9.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).

 

10. LIMITATION OF LIABILITY.

 

10.1 Exclusion of Damages. NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES AND AGREES THAT MASTERCONTROL’S LICENSORS WILL HAVE NO LIABILITY UNDER THIS AGREEMENT.

10.2 Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT FOR THE THEN-CURRENT ANNUAL SUBSCRIPTION TERM, UNDER THE APPLICABLE QUOTATION(S) RELATING TO THE CLAIM.

10.3 Liability Exclusions. THE EXCLUSIONS AND LIMITATIONS IN SECTION 10.1 AND SECTION 10.2 DO NOT APPLY TO: (i) A BREACH OF SECTION 2.2 OR SECTION 3.1, (ii) INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, (iii) BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 11.1, OR (iv) MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY.

10.4 Limitations Fair and Reasonable. THE PARTIES ACKNOWLEDGE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.

 

11. CONFIDENTIALITY.

 

11.1 General. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Recipient may not disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly disclosed to Recipient, without restriction, by another person with the legal authority to do so; (iv) Recipient independently develops without use of Discloser’s Confidential Information; (v) or is expressly permitted to be disclosed pursuant to the terms of this Agreement. If the Recipient becomes legally compelled by subpoena or other similar legal process or otherwise by law, rule or regulation to disclose any Confidential Information, the Recipient agrees, to the extent reasonably practicable and permitted by law, rule and regulation, to provide the Discloser with prompt written notice (email being sufficient) of such legal process so that the Discloser may seek a protective order or other appropriate remedy at the Discloser’s sole cost and expense or waive compliance with the provisions of this Agreement. Subject to such protective order or other remedy, or if the Discloser waives compliance with the provisions of this Agreement, the Recipient agrees to use reasonable efforts to limit the extent of such disclosure to information that is required and to exercise commercially reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.

 

11.2 Protection of Client Data.

(a) In order to protect Client Data as part of the provision of the Service, MasterControl will comply with the following: (a) the relevant MasterControl privacy policies, available at https://www.mastercontrol.com/privacy.html; and (b) MasterControl’s applicable administrative, physical, technical and other safeguards, and other applicable aspects of system and data management, available at https://www.mastercontrol.com/privacy/security-measures/. Client acknowledges that it is not feasible for MasterControl to accommodate conflicting data security requirements from multiple MasterControl clients; accordingly, without limiting MasterControl’s obligations in the first sentence of this Section 11.2(a), MasterControl will use good faith efforts to accommodate Client’s request as and where feasible; however, failure to accommodate Client’s request will not be deemed a breach of this Agreement. For the avoidance of doubt, MasterControl does not warrant that Client’s use of the Services is risk-free. MasterControl does not provide representations, warranties, or assurances against interception or access and, provided MasterControl complies with the other provisions of this Section 11.2(a), MasterControl will not be responsible for any theft, illegal activity or other unauthorized acts resulting in loss of or damage to Client and/or Client’s computer, Client Data or other property in connection with Client’s use of the Services. Notwithstanding anything set forth in this Agreement to the contrary, MasterControl’s liability for breach of any of the foregoing provisions will be limited to the direct damages cap set forth in Section 10 (Limitation of Liability).

(b) To the extent Client Data includes Personal Data (as that term is defined in the Data Processing Addendum (as that term is defined below)), MasterControl will furthermore comply with the most current version of the MasterControl Data Processing Addendum) (the “Data Processing Addendum”). The Data Processing Addendum (a) may be downloaded at http://www.MasterControl.com/privacy.html and is incorporated herein by reference, and (b) will remain in force during the Service Term under the applicable Quotation. In the event of any conflict between the terms of the Data Processing Addendum and the terms of this Agreement (including any applicable MasterControl privacy policies), the terms of the Data Processing Addendum will take precedence.

(c) To the extent Client Data includes Protected Health Information (PHI), as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”), Client shall be obligated to purchase MasterControl’s HIPAA compliant Service and sign MasterControl’s Business Associate Agreement (the “BAA”). Should Client input PHI into the Service without purchasing MasterControl’s HIPAA compliant Service, they shall be solely liable for any damages, fees, costs and penalties resulting from failure to comply with HIPAA requirements, whether said damages, fees, costs and penalties are assessed against the Client or MasterControl.

(d) Without prejudice to subsections (a), (b) and (c) above, Client is responsible for (i) any required notices, consents and/or authorizations related to Client’s provision of, and MasterControl’s processing of, Client Data (including any Personal Data or PHI) as part of the Services, (ii) any security vulnerabilities, and the consequences of such vulnerabilities, arising from Client Data, including any viruses, Trojan horses, worms or other harmful programming routines contained in Client Data, and (iii) any use by Client or Users of the Services in a manner that is inconsistent with the terms of this Agreement. Also, notwithstanding the generality of this Section 11.2, Client is responsible for: (A) configuring, operating, maintaining, and securing the operating systems and other associated software that Client uses in connection with accessing the Service (including Client Data) that is not provided by MasterControl; and (B) maintaining appropriate security, protection, and backup of Client Data, which may include the use of encryption technology to protect Client Data from unauthorized access, and the routine archiving of Client Data. If Client fails to comply with this paragraph, MasterControl is no longer responsible for the security, integrity or confidentiality of such Client Data.

(e) Unless otherwise specified in the Quotation, Client Data may not include any sensitive or special data that imposes specific data security or data protection obligations on MasterControl in addition to or different from those specified in the Data Processing Addendum or BAA.

 

12. GENERAL.

 

12.1 Notices. Notices will be sent by first-class mail, overnight courier, or prepaid post, and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Either party may change its address or recipient for receipt of notices upon written notice to the other party.

12.2 Assignment. Neither party may assign this Agreement without the other party’s prior written approval, except in connection with a merger, sale of assets, sale of stock, or other transfer of all or substantially all of such party’s business and assets. Any attempted assignment in violation of the foregoing will be null and void.

12.3 Governing Law; Venue. This Agreement will be governed by Utah law, without regard to the conflicts of law provisions of any jurisdiction. Any claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in Salt Lake City, Utah; each party irrevocably submits to the personal jurisdiction and venue thereof, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.

12.4 Remedies. Except for any remedy that is described herein as a “sole” remedy or obligation, the parties’ rights and remedies hereunder are cumulative. In the event of any breach or apparent breach by either party of the provisions of this Agreement, the other party will be entitled, in addition to all other remedies, to seek an injunction, whether interlocutory or preliminary, and to seek any other equitable relief, before any U.S. court, restraining any such breach. Each party agrees to submit to the jurisdiction of, and agrees that venue is proper in, the aforesaid courts in any such legal action or proceeding.

12.5 Relationship Between Parties. No joint venture, partnership, employment, or agency relationship exists between Client and MasterControl as a result of this agreement or use of the Service. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life, or disability insurance, offered by the other party to its employees.

12.6 U.S. Government End Users. To the extent Client is an agency of or otherwise represents the United Stated federal government, (i) it hereby agrees that the Service qualifies as a “commercial product” as defined by FAR Part 2.101 or the state law corollary, and (ii) MasterControl provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary access right is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with MasterControl to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights, must be included in any applicable contract or agreement.

12.7 Export Control Each party agrees to comply with all export and import laws and regulations, including without limitation, those of the United States, applicable to such party in connection with its respective provision or use of the Services under this Agreement. Without limiting the foregoing, Customer represents and warrants that it: (a) is not listed on, or majority-owned by any entity listed on, any U.S. government list of prohibited or restricted parties; (b) is not located in (or a national of) a country that either is subject to a U.S. government embargo or has been designated by the U.S. government as a “state sponsor of terrorism”; (c) will not (and will not permit any third parties to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction; and (d) will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.

12.8 Waiver. The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing. No modification hereof will be effective unless in writing and signed by both parties.

12.9 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Client agrees that Section 10 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 8 (Representations and Warranties).

12.10 Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed Services and affected Quotations upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.

12.11 Construction. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. As used in this Agreement, the word “including” means “including but not limited to.”

12.12 Entire Agreement. This Agreement comprises the entire agreement between Client and MasterControl and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. Notwithstanding the foregoing, Optional Offerings may be made available for Client’s use in its sole discretion. Except for the Acceptable Use Policy, the DPA, the BAA, the Offering-Specific Terms, and the Security Measures, each of which shall govern solely with respect to the subject matter therein, in the event of a conflict between the terms of this Agreement and the terms of any Quotation, or other exhibit hereto, such conflict will be resolved in the following order: (a) any Quotation; (b) the exhibits; and (c) this Agreement. Any preprinted terms on any ordering documents or invoice will have no effect on the terms of this Agreement and are hereby rejected.