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Terms and Conditions
SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, MuukLabs Inc. will use commercially reasonable efforts to provide the Services to the Customer. As part of the registration process, Customer will identify an administrative user name and password for Customer’s MuukLabs Inc. account. MuukLabs Inc. reserves the right to refuse registration of or cancel passwords it deems inappropriate.
Subject to the terms hereof, MuukLabs Inc. will provide Customer with reasonable technical support services in accordance with MuukLabs Inc. standard practice.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by MuukLabs Inc. or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, MuukLabs Inc. hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the period as set out in the SAAS SERVICES ORDER FORM (the “Term”) only in connection with the Services.
Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software, or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items,” and according to DFAR section 252.2277014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer hereby agrees to indemnify and hold harmless MuukLabs, Inc. against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any third party claim or action that arises from an alleged violation of Customer’s breach of its obligations pursuant to this Agreement or applicable law, or its misuse of Services. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY AND PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of MuukLabs Inc. includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to MuukLabs Inc. to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all rights, title, and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.
[Notwithstanding anything to the contrary, MuukLabs Inc. shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and MuukLabs Inc. will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other MuukLabs Inc. offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business.] No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
The customer will pay MuukLabs Inc. the fees described in each Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage, and Customer agrees to pay undisputed additional fees in the manner provided herein.
Unless Customer remits payment in advance, MuukLabs Inc. will invoice Customer for the Services set forth in the Order Form on the first day of each calendar month. The customer will pay all undisputed fees to MuukLabs Inc. within thirty (30) days after the Customer’s receipt of an invoice. Late, undisputed, unpaid amounts are subject to a finance charge of 1% per month on any outstanding balance or the maximum permitted by law, whichever is lower. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on MuukLabs Inc. net income.
TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Term as specified in the Order Form and shall be automatically renewed for additional periods of one month (collectively, the “Term”) unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement. The customer will pay in full for the Services up to and including the last day on which the Services are provided. [Upon any termination, MuukLabs Inc. will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter MuukLabs Inc. may, but is not obligated to, delete stored Customer Data.] All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
MuukLabs Inc. shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by MuukLabs Inc. or by third-party providers, or because of other causes beyond MuukLabs Inc. reasonable control, but MuukLabs Inc. shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, MUUKLABS INC. DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS,” AND MUUKLABS INC. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
EXCEPT FOR: (A) CLAIMS FOR BREACH AND/OR VIOLATION OF SECTION 3 OF THIS AGREEMENT; (B) CLAIMS RESULTING FROM THE INTENTIONAL, WILLFUL, OR GROSSLY NEGLIGENT CONDUCT/MISCONDUCT OF A PARTY OR ITS AFFILIATES AND/OR (C) INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS: IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, OR DAMAGES FOR LOSS OF DATA OR GOODWILL, EVEN IF A PARTY WAS INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
FURTHER, EXCEPT FOR: (A) CLAIMS FOR BREACH AND/OR VIOLATION OF SECTION 3 OF THIS AGREEMENT; (B) CLAIMS RESULTING FROM THE INTENTIONAL, WILLFUL OR GROSSLY NEGLIGENT CONDUCT/MISCONDUCT OF A PARTY OR ITS AFFILIATES; AND/OR (C) INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS: EACH PARTY’S RESPECTIVE LIABILITY ARISING OUT OF THE SERVICES PERFORMED UNDER A SOW, REGARDLESS OF THE DAMAGES THEORY, SHALL NOT EXCEED THE GREATER OF: (I) THE TOTAL THE FEES PAID OR PAYABLE PURSUANT TO SUCH SOW; OR (II) $20,000.00.
Notwithstanding the foregoing, nothing in this Section shall limit or exclude either Party’s liability with respect to any liability that cannot be limited or excluded by applicable law. Nothing herein shall prevent a Party from seeking equitable relief against a Representative of the other Party to the extent necessary to enjoin the behavior of such Representative.
INDEMNIFICATION
Except to the extent arising from the negligence or willful misconduct of Customer, Muuklabs Inc. shall defend, indemnify and hold harmless Customer and its officers, shareholders, managers, employees, agents, contractors, affiliates, subsidiaries, successors, and assigns from any loss, damage or expense (including reasonable attorneys’ fees) arising from a third party claim in connection with (i) Muuklabs Inc.’s breach of any of its obligations under this Agreement; (ii) negligence or willful misconduct of Muuklabs Inc. in performing the Services; (iii) Muuklab Inc.’s failure to comply with applicable laws and regulations; and (iv) Customer’s proper use of the Services as permitted hereunder infringes upon any patent, copyright or trademark of such third Party, or misappropriates a trade secret(s) of such third Party.
Customer shall defend, indemnify and hold harmless Muuklabs Inc. and its officers, shareholders, managers, employees, agents, contractors, affiliates, subsidiaries, successors, and assigns from any loss, damage or expense (including reasonable attorneys’ fees) arising from a third party claim in connection with (i) Customer’s breach of any of its obligations under this Agreement or fraud; (ii) negligence or willful misconduct of Customer; (iii) Customer’s failure to comply with applicable laws and regulations; or (iv) intellectual property infringement of a third party.
MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Customer except with MuukLabs Inc. prior written consent. MuukLabs Inc. may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind MuukLabs Inc. in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or e-mail; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with MuukLabs Inc. to serve as a reference account upon request.