MLSA

Master Software License and Services Agreement


Terms and Conditions


This Master Software License and Services Agreement (the “MLSA”) sets forth the terms and conditions which will govern and be part of any agreement between Customer and MobileMind Technologies, Inc., a Delaware corporation (“MobileMind”), and entered into pursuant to a written Quote issued by MobileMind and accepted by Customer.  Acceptance may be evidenced either by Customer’s execution of the Quote or submitting an order to MobileMind that references the Quote number (“Acceptance”) and, upon such Acceptance, MobileMind and Customer have entered into a binding, legal agreement which will be governed by these terms and conditions without modification.  The Quote, this MLSA, the Terms of Service available at [https://mobilemind.io/terms/] and, to the extent applicable to Customer’s requirements, the statement of work attached to the Quote (the “SOW”) collectively constitute the agreement (collectively, this “Agreement”) between MobileMind and Customer.


BY CUSTOMER’S EXECUTION OF THE QUOTE, ACCEPTANCE AND/OR DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE AND/OR SERVICES, EACH AS DEFINED HEREIN, CUSTOMER IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND AGREES TO BE BOUND BY THE SAME. IN THIS RESPECT, CUSTOMER’S EXECUTION OF THE QUOTE OR ACCEPTANCE CONSTITUES ITS SIGNATURE TO THIS AGREEMENT AND CREATES A BINDING LEGAL AGREEMENT BETWEEN MOBILEMIND AND CUSTOMER. 


IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, CUSTOMER IS NOT AUTHORIZED TO DOWNLOAD, USE, LOAD, STORE, OR OTHERWISE POSSESS ANY COPY OF THE SOFTWARE OR SERVICES.

  1. SOFTWARE AND SERVICES:  Pursuant to the terms of this Agreement, MobileMind is granting access and use of the software (the “Software”) and providing the services (the “Services”) to Customer which are identified in the Quote.  The Services will be more fully described in the Quote and, as applicable, an SOW.
  2. TERM:  The initial subscription term (“Term”) for which MobileMind will provide Customer the Software and Services, and for which Customer will be obligated to pay to MobileMind any related fees, is set forth in the Quote.  The Term will commence upon Acceptance of the Quote. For each Parties’ convenience, unless earlier terminated in accordance with Section 3 of this MLSA or unless the Quote states there will be no automatic renewal, at the end of the initial Term, this Agreement and the SOW, if any, will automatically renew for successive periods of one year unless one Party delivers written notice to the other Party of its intent not to renew this Agreement not less than 60 days prior to the end of such initial Term or any subsequent renewal Term.
  3. TERMINATION:
  4. Termination for Convenience.  This Section 3.a and the termination for convenience rights provided herein shall only be effective when the Quote provides for an initial Term of at least twelve (12) months.  After six (6) months of the initial Term have elapsed, either Party may give written notice of termination of this Agreement for any reason and at such Party’s convenience.  Such notice shall specify a termination date at least ninety (90) days after the date of such notice.  
  5. Termination for Cause. 
  6. MobileMind shall have the right immediately to suspend or terminate provision of the Services for non-payment of fees under Section 4.
  7. Either Party may terminate this Agreement upon written notice to the other Party under any of the following circumstances: (i) the other Party defaults on any of its obligations under this Agreement, and such default is not cured within thirty (30) days after written notice is received by the defaulting Party specifying, in reasonable detail, the nature of the default; (ii) the other Party becomes unable to pay its debts as they become due or otherwise unable to perform its obligations under this Agreement; or (iii)  the other Party becomes the subject of a proceeding, whether voluntary or involuntary, under the bankruptcy, insolvency or any similar laws of the United States or any other jurisdiction, unless, in the case of an involuntary proceeding, such proceeding is dismissed or withdrawn within forty-five (45) days of the date it is initiated.
  8.  Effect of Expiration of Term or Termination.  Upon the expiration or termination of this Agreement, Customer shall:
  9. remain obligated to pay MobileMind any and all outstanding fees for the Software and Services that may have become due before such expiration or termination, and any and all expenses incurred by MobileMind, including expenses related to contracts MobileMind entered in conjunction with this Agreement.  No expiration or termination will entitle Customer to any refund except that, in the event of a termination for convenience under Section 3.a, Customer will be eligible to receive a refund of prepaid subscription fees for up to three (3) months of the remaining initial Term.
  10. immediately discontinue use of the Software, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing (collectively, the “MobileMind IP”), and delete, destroy, or return all copies of the MobileMind IP and certify in writing to the MobileMind that the MobileMind IP has been deleted or destroyed.  
  11. PAYMENT:
  12. With respect to Services, Customer agrees to pay MobileMind the fees set forth on the Quote and/or SOW at the times specified in the Quote and/or SOW.  With respect to Services to be paid monthly, Customer will be invoiced monthly in arrears for such Services, accompanied by an explanation in reasonable detail of how the amount of the invoice was determined.
  13. With respect to licensing of the Software, Customer agrees to pay MobileMind the license fees set forth in the Quote and SOW, as applicable, at the times specified in the Quote and SOW, as applicable.
  14. Customer agrees to reimburse MobileMind for all reasonable expenses, unless otherwise stated within the Quote or SOW that travel expenses are included in services costs.  This includes, without limitation, travel expenses and per diem expenses, incurred in providing the Services, subject to MobileMind providing reasonable documentation of such expenses and further subject to Customer’s prior written approval of any expense likely to exceed $300 per month.
  15. All prices and fees quoted in this Agreement do not include taxes.  In the event Customer does not provide evidence satisfactory to MobileMind that it is exempt from paying sales tax, use tax, excise taxes, value added tax, and the like, MobibleMind shall have the right to require Customer to pay MobileMind all such taxes which it pays.  
  16. Any amount due under this Agreement which is not paid in a timely manner may at the option of MobileMind bear interest from the date such payment is past due at the rate of the lower of twelve percent (12%) per annum or the highest rate permitted by law. If such failure continues for thirty (30) days or more, MobileMind may suspend Customer’s access to any portion or all of the Software and Services until such amounts are paid in full Customer agrees to pay all reasonable costs incurred by MobileMind in collecting any amount past due pursuant to this Agreement, including without limitation court costs, attorney fees, and expert witness fees.  
  17. Customer acknowledges that its ability to access and use the Software and Services may require the payment of third party fees (such as telephone toll charges, ISP or airtime charges) and that Customer is responsible for such fees.  MobileMind is not responsible for any equipment or third party service Customer needs to access and use the Software and/or Services.
  18. SOFTWARE:
  19. With respect to the Software licensed to Customer pursuant to this Agreement, the Customer acknowledges and agrees to the following:
  20. An “Authorized User” means Customer’s employees, consultants, contractors and agents (i) who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Software has been purchased hereunder.
  21. Subject to the terms and conditions of this Agreement, MobileMind hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 14) right to access and use the Software during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. MobileMind shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users will not exceed the number set forth in the Quote, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the fees payable hereunder.
  22. Subject to the terms and conditions contained in this Agreement, MobileMind hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 14) license to use MobileMind’s user manuals, handbooks, and guides relating to the Software provided by MobileMind to Customer either electronically or in hard copy form (collectively, the “Documentation”) during the Term solely for Customer’s internal business purposes in connection with its use of the Software.
  23. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or Documentation; or (v) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
  24. MobileMind reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the MobileMind IP.
  25. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions.
  26. Customer acknowledges that, as between Customer and MobileMind, MobileMind owns all right, title, and interest, including all intellectual property rights, in and to the MobileMind IP and all associated training processes or methodologies, whether applied in physical meetings or training sessions or applied electronically through interaction with the Software. Customer further acknowledges that, with respect to Third-Party Products, if any, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
  27. REPRESENTATIONS AND WARRANTIES:
  28.  Customer represents and warrants to MobileMind that:
  29. Customer has all the necessary right, power and authority to enter into this Agreement and to perform the acts required of it hereunder.  The person executing this Agreement on behalf of Customer represents and warrants to MobileMind that he or she is duly authorized so to execute and deliver this Agreement.
  30. Customer shall assign employees or contractors who have adequate training and experience in wireless communication and software to oversee and assist MobileMind efficiently in the performance of this Agreement (the “Customer Administrators”).  Customer acknowledges and agrees that the maximum number of Customer Administrators it may designate is identified in the Quote, and that it is Customer’s responsibility to provide MobileMind with the name(s) and contact information of each Customer Administrator.
  31. MobileMind represents and warrants to Customer that:
  32. MobileMind has all the necessary right, power and authority to enter into this Agreement and to perform the acts required of it hereunder.  The person executing this Agreement on behalf of MobileMind represents and warrants to Customer that he or she is duly authorized so to execute and deliver this Agreement.
  33. MobileMind warrants that the Software will substantially conform to its description in the Documentation.  The Software is hosted on the Google Cloud Platform and, accordingly, Customer acknowledges that the uptime and availability of the Software is governed by Google’s Service Level Agreement for its Google Compute Engine Service, and available for Customer’s review at https://cloud.google.com/compute/sla.
  34. Except for passing through to Customer the applicable SLA’s provided for access and use of the Google Cloud Platform generally, MobileMind makes no representations or guarantees regarding uptime or availability of the Software.  The foregoing warranty does not apply to, and MobileMind expressly disclaims all warranties with respect to any Third Party Products.
  35. MobileMind will provide the Services with personnel of adequate training and expertise, including training and expertise in the Software, who shall provide the Services in a competent and professional manner, meeting industry standards.
  36. In the event MobileMind is providing administrative management Services with respect to the Software and/or Customer’s mobile system (it being understood that MobileMind is not providing such Services unless expressly identified in a Quote issued by MobileMind), MobileMind will provide such Services in accordance with good industry standards, including without limitation maintaining and administering the security system of Customer and any system to control which websites or email addresses may be accessible from the system and to block spam or undesirable messages.  Customer acknowledges and agrees that given the nature of the internet and wireless systems and the inherent limitations of firewalls, message blockers and similar security systems, there is no guarantee that there will not be unauthorized access to Customer’s system, that a user of the system can never access undesirable websites or email addresses, or that a user of the system will never receive an undesirable message.  In the event that the security system, a firewall or a message blocker is breached or circumvented, MobileMind will promptly inform the Customer as soon as it has knowledge of the incident and will take immediate steps in accordance with good industry practice to remedy the problem permitting the incident.
  37. RIGHTS AND OBLIGATIONS OF THE PARTIES:
  38. MobileMind covenants and agrees that:
  39. Unless otherwise specified in the Quote, the Software access rights granted hereunder entitle Customer to the support services (the “Support”) during the Term.  MobileMind will make email and phone Support available to a maximum of three (3) Customer Administrators (designated by Customer in advance for Support access and identified to MobileMind) during regular business hours (8:00am to 5:00pm Eastern Time, Monday thru Friday, except during holidays).
  40. Consult regularly with the Customer with respect to the quality of MobileMind’s Services, new Services to be provided, modifications to current Services and any deliverable with respect to the Services.
  41. Provide a project manager who shall have regular personal and/or telephone contact with Customer’s Administrators. The project manager shall provide information regarding technical, functional and other developments to Customer’s Administrators.
  42. Have the right to sub-contract part of the Services, provided MobileMind notifies Customer of the sub-contractor and the portion of the Services being done by such sub-contractor.
  43. Indemnify, defend and hold Customer harmless against any losses, damages, costs (including reasonable legal and other professional fees) and expensed incurred by Customer as a result of MobileMind’s breach of this Agreement or any negligent or wrongful act by MobileMind or its officers, employees, contractors or agents.
  44. Customer covenants and agrees that:
  45. Customer will cooperate and timely provide such information as MobileMind may require to install, configure and implement the Software and to perform the Services in an efficient manner and in compliance with any schedule agreed upon.  If MobileMind is delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of the Services by reason of Customer’s acts or omissions (including the provision of any incorrect or inadequate data or the provision delay or failure to provide information or instructions or perform Customer’s obligations under this Agreement), then Customer shall pay MobileMind any additional reasonable costs and expenses incurred by MobileMind and any timetable agreed for the performance of Services shall be extended accordingly.
  46. Report promptly to MobileMind all known or suspected deficiencies, bugs and defects in the Services or Software, and if MobileMind is providing administrative management Services for the Software and/or Customer’s system, any breach or circumvention of any security system, including without limitation any firewall or message blocker.
  47. Institute policies and training for its personnel on the use of the mobile devices and the procedures established to deter unauthorized access of any mobile device or to any information.
  48. Ensure Customer’s equipment is in good working order and is managed by personnel with adequate training.
  49. Provide its Authorized Users with a phone number and/or email address to contact the Customer Administrators (or other IT personnel of Customer), for internal support with the Software.  Customer will ensure that only Customer Administrators may call the help desk provided by MobileMind for additional Support.
  50. If personnel of MobileMind must come onto Customer’s premises, Customer will ensure that MobileMind’s staff are provided with suitable and safe office accommodations, suitable services (including telephone, photocopying and internet access) free of charge as may be required to provide the Services.
  51. Indemnify, defend and hold MobileMind harmless against any losses, damages, costs (including reasonable legal and other professional fees) and expensed incurred by MobileMind as a result of Customer’s breach of this Agreement or any negligent or wrongful act by Customer or its officers, employees, contractors or agents.
  52. CONFIDENTIALITY:  
  53.  “Confidential Information” means nonpublic information of value to its owner or licensee and which the owner or licensee attempts to keep confidential, including without limitation any software code, documentation relating to software code, system structure, software tools, business plans, finances, customers and potential customers, vendors, information provided to a Party by a third person under requirements of confidentiality, and any information marked as “Confidential”, “Proprietary” or some other similar marking.  Confidential Information shall include any information provided to a Party hereto on a confidential basis, and shall include personally identifiable information about any personnel, customers, clients or students of either Party. Without limiting the generality of the foregoing, all processes, materials and methodologies employed or disclosed by MobileMind in connection with its training or educational programs or activities, whether such training or education is in person or electronically through the Software, shall be deemed the Confidential Information of MobileMind.
  54.  Each party agrees: (i) to hold the Confidential Information of the other in the strictest confidence; (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed the Confidential Information to any third party; (iii) not to make use of the Confidential Information other than for the permitted purposes under of this Agreement; and (iv) to disclose the Confidential Information only to their respective employees, contractors and professional advisors requiring such material for the operation of Customer’s business and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. The nondisclosure and confidentiality obligations set forth herein shall survive termination of this Agreement for any reason and shall remain in effect with respect to Confidential Information deemed a trade secret at law for as long as the owner of such information is entitled to protection thereof under applicable law, and with respect to all other Confidential Information for a period of five (5) years after termination hereof.
  55.  Confidential Information shall not include any information which: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction on its disclosure or use, at the time of disclosure; (iii) is disclosed by the receiving party with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of the disclosing party’s Confidential Information; (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party; or (vi) is (a) compelled to be disclosed pursuant to a legal proceeding or (b) is otherwise required to be disclosed by law; provided however that the party being compelled to disclose Confidential Information shall, if requested, provide the other party with all reasonable assistance to resist such disclosure, at the expense of the party that owns the Confidential Information sought to be disclosed and shall not disclose the Confidential Information until the other party has exhausted all rights of appeal under the laws of the jurisdiction in which disclosure is compelled.
  56. Injunctive Relief. It is agreed that any breach of this Section 8 by either party would result in irreparable harm to the other party, that money damages would not be a sufficient remedy for any such breach of this Section 8 and that the other party shall be entitled to seek equitable relief, including injunction and specific performance, without the necessity of posting bond as a remedy for any such breach or a threatened breach, in addition to all other remedies at law or in equity.
  57. DELIVERABLES:  Unless expressly stated otherwise in a Quote, no service, product, recommendation, report or other deliverable provided by MobileMind to Customer pursuant to this Agreement shall be deemed a “work for hire” in which ownership of such product or deliverable is transferred to Customer.  For the benefit of clarity, the Quote must include the phrase “work(s) for hire” and identify the deliverable(s) that the parties have agreed will constitute work(s) for hire.
  58. ARTIFICIAL INTELLIGENCE
  59. Certain of the Services may use artificial intelligence (the “AI Tools”) to facilitate creation of content through the Services.  Customer may provide input to the AI Tools (“Input”) and receive output from the AI Tools based on the Input (“Output”).  Input and Output are collectively “Content.” Customer is responsible for Content, including ensuring that it does not violate any applicable law, terms and conditions of any third party websites or services used in connection with the AI Tools, or this Agreement.  If Customer uses the AI Tools, Customer represents and warrants that it has all rights, licenses and permissions needed to provide Input to the AI Tools. 
  60. Due to the nature of the Services and artificial intelligence generally, (i) Customer may not receive, create, or acquire any protectable intellectual property rights in the Output, and (ii) Output may not be unique and other users may receive the same or similar Output from the AI Tools. Customer agrees to hold MobileMind harmless against any claims related to another user or third party using the same or similar content, information, or materials that Customer receives as Output from the Services.
  61. When Customer uses the Services, Customer agrees:
  62. Output may not always be accurate, and Customer should not rely on Output from the AI Tools as a sole source of truth or factual information. 
  63. Customer must evaluate Output for accuracy and appropriateness for its use case, including using human review as appropriate, before using or sharing Output from the AI Tools.
  64. Customer shall not use any Output in a manner that infringes or violates the privacy or publicity rights of any third party or puts any third party in a false light.
  65. The AI Tools may provide incomplete, incorrect, or offensive Output that does not represent MobileMind’s views. If Output references any third party products or services, it doesn’t mean the third party endorses or is affiliated with MobileMind.
  66. Customer’s use of third-party websites or services in connection with the AI Tools is at its own risk and subject to the terms and conditions of such sites.  One of the third-party services used in connection with the AI Tools is the YouTube API Services.  By using the AI Tools, Customer agrees to be bound by the YouTube Terms of Service.  Customer remains solely responsible for compliance with all third-party providers’ terms and conditions.  Customer shall indemnify and hold MobileMind harmless against any claims, actions, proceedings, losses, and damages, including but not limited to reasonable attorneys’ fees, arising out of or in connection with Customer’s use of third-party websites or services in connection with the AI Tools, including, without limitation, (i) access to, or any use of the YouTube API Services, by Customer or by MobileMind on Customer’s behalf, (ii) actual or alleged violation of the YouTube Terms of Service or the YouTube API Services Terms of Service, including actual or alleged infringement of any third-party right (including any intellectual property or other proprietary right, confidentiality, privacy right, or right of publicity), or (iii) any content, data, technology or materials provided by Customer.  Customer grants MobileMind permission to allow such third party website or service and its provider to access any data (including, without limitation, data that may constitute Confidential Information) provided to MobileMind in connection with the Services as required for interoperation of that third party website or service with the AI Tools.  MobileMind is not responsible for any disclosure, modification or deletion of such data resulting from access by any third party website or service or its provider. MobileMind does not warrant or support third-party websites or services. Further, MobileMind cannot guarantee the continued availability of any AI Tools that interoperate with third-party websites or services, and may cease providing them without being in breach of this MLSA or entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of third-party websites or services ceases to make the third-party website or service available for interoperation with the corresponding AI Tools in a manner acceptable to MobileMind (a “Third Party Service Termination”). This MLSA will remain in full force and effect following any Third Party Service Termination until this MLSA is terminated or expires as set forth herein. 
  67. DISCLAIMER OF WARRANTIES:  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MOBILEMIND MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SERVICES AND THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE AVAILABILITY, FUNCTIONALITY, OR SECURITY OF THE SOFTWARE, AND MOBILEMIND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.


ADDITIONALLY, MOBILEMIND MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, FUNCTIONALITY, OR SECURITY OF ANY THIRD PARTY PRODUCT NECESSARY FOR CUSTOMER TO ACCESS OR USE THE SOFTWARE OR THE SERVICES AND MOBILEMIND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE AVAILABILITY, FUNCTIONALITY, OR SECURITY OF SUCH ANY THIRD PARTY PRODUCT.  MOBILEMIND SHALL NOT BE LIABLE FOR ANY DELAYS IN THE DELIVERY OF ANY COMMUNICATIONS OR DATA TO CUSTOMER THAT ARE DEPENDENT ON A THIRD PARTY CARRIER OR CARRIERS RESPONSIBLE FOR MAKING SUCH COMMUNICATION OR DATA AVAILABLE.


12. LIMITATION OF LIABILITY:  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY AS PERMITTED UNDER APPLICABLE LAW, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CUSTOMER DATA, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  In no event will MobileMind’s maximum aggregate liability to Customer under any provision of this Agreement exceed the total amount of fees paid by Customer to MobileMind for Services under this Agreement during the six (6) month period prior to the first date the liability arose.

13. FORCE MAJEURE:  No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control. For the avoidance of doubt, nothing in this Section 13 shall excuse you from any payment obligations under this Agreement. If any such event continues for more than ninety (90) days and provided substantial performance is still impeded either party may terminate this Agreement forthwith by prior written notice without prejudice to the accrued rights of either party. 

14. ASSIGNMENT:  Either party may assign or otherwise transfer any of such party’s rights or obligations under this Agreement with prior written, mutual consent, such consent not to be unreasonably withheld.  

15. NOTICES:

  1. Any notice required to be given pursuant to this Agreement shall unless otherwise stated, be in writing, sent to the other party marked for the attention of the person at the address specified in the SOW (or to such other address as either party may from time to time notify to the other in writing in accordance with this clause).
  2. A correctly addressed notice sent by first-class mail shall be deemed to have been delivered three (3) business days after sending, correctly directed faxes shall be deemed to have been received instantaneously on transmission, and correctly addressed emails shall be deemed to have been delivered 24 hours after sending.  In addition, notices hereunder may be delivered by hand, in which event the notice shall be deemed effective when delivered, or by overnight courier, in which event the notice shall be deemed to have been received on the next business day following delivery to such courier.

16. SEVERABILITY:  If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.

17. WAIVER:  No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. 

18. ENTIRE AGREEMENT:  This Agreement and any document expressly incorporated in it contains the entire and only agreement between the parties and supersedes all previous agreements between the parties with respect to the subject matter hereof. In the event of a conflict between the terms of this MLSA and the terms of the Terms of Service, the terms of the Terms of Service will govern to the extent of the conflict. Each party acknowledges that in entering into this Agreement, it has not relied on any representation, undertaking, promise or statement whether oral or in writing which is not expressly set out in this Agreement. Except as expressly provided in this Agreement all conditions, warranties, stipulations and other statements whatsoever that would otherwise be implied or imposed by statute, at common law, or otherwise howsoever are excluded to the fullest extent permitted by law. Nothing in the foregoing shall however affect any liability for fraudulent misrepresentation.

19. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES:  The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and assigns, and is made solely and specifically for their benefit. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise. 

20. GOVERNING LAW:  This Agreement, and any and all claims arising out of the relationship between the parties hereto, shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to any conflicts or choice of laws principles which otherwise might be applicable, and each party agrees to submit to the non-exclusive jurisdiction of the courts of Fulton County, Georgia.

Share by: