PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
-AGREE: BY USING THE SERVICE OR CLICKING “I AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER IS AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF THEIR EMPLOYER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT THEY HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR EMPLOYER’S BEHALF.
-CANCEL: IF CUSTOMER DOES NOT WANT TO AGREE TO THIS AGREEMENT CLICK “I REJECT,” BUT THEN CUSTOMER CANNOT USE THE SERVICE.
This agreement is between Menemsha Group, Incorporated a Massachusetts corporation (MMG), and Customer agreeing to these terms.
1.SOFTWARE-AS-A-SERVICE. This agreement provides Customer access to and usage of an Internet based LMS (learning Management Software) software service as specified on the order.
2.USE OF SERVICE.
a.Customer Owned Data. All data uploaded by Customer remains the property of Customer, as between MMG and Customer grants MMG the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data from as allowed by the Service.
b.MGG Content. All MMG sales methodologies, content, questions, job aides, sales playbooks, know how and other methodologies and information provided as part of the Service are owned by MMG. MMG grants Customer a non-exclusive, non-transferable license to internally use and access the MMG Content for sales training purposes.
c.Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify MMG promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s User Guide and applicable law.
d.MMG Support. MMG must provide customer support for the Service under the terms of MMG’ Customer Support Policy (Support) which is incorporated into this agreement for all purposes.
3.SERVICE LEVEL AGREEMENT & WARRANTY.
a.Warranty. MMG warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service excluding maintenance outages, force majeure, and outages that result from any Customer technology issues; (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
b.DISCLAIMER. MMG DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE MMG TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, MMG DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
4.PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 7 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
a.Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). MMG’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information).
b.Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c.Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
a.Reservation of Rights. The software, workflow processes, user interface, designs, know-how, MMG Content and other technologies provided by MMG as part of the Service are the proprietary property of MMG and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with MMG. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. MMG reserves all rights unless expressly granted in this agreement.
b.General Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
c.MMG Content Restrictions. Customer may not (i) use the MMG Content for the purpose of creating or augmenting a third party content library, knowledge base, database, document, service or software; (ii) copy any portions of the MMG Content; (iii) distribute or otherwise make the MMG Content, or any portion, available to any third party (except as permitted otherwise in this agreement) by way of the Internet or other means; or (iv) use the MMG Content to create a content library which competes with the MMG Content.
7.TERM AND TERMINATION.
a.Term. This agreement continues until all orders have terminated.
b.Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c.Return of Customer Data.
∙Within 60-days after termination, upon request MMG will make the Service available for Customer to export such data as provided in Section 2(a).
∙After such 60-day period, MMG has no obligation to maintain the Customer Data and may destroy it.
d.Return MMG Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay MMG for any unpaid amounts, and destroy or return all property of MMG. Upon MMG’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
e.Suspension for Violations of Law. MMG may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. MMG will attempt to contact Customer in advance.
a.EXCLUSION OF INDIRECT DAMAGES. MMG is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits), even if it knows of the possibility of such damage or loss.
b.TOTAL LIMIT ON LIABILITY. MMG’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12 month period prior to the event that gave rise to the liability.
9.GOVERNING LAW AND FORUM. This agreement is governed by the laws of the Commonwealth of Massachusetts (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Suffolk County, MA, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
a.Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.
b.No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
c.Feedback. By submitting ideas, suggestions or feedback to MMG regarding the Service, Customer agrees that such items submitted do not contain confidential or proprietary information; and Customer hereby grants MMG an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
d.Independent Contractors. The parties are independent contractors with respect to each other.
e.Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
f.Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
g.No Additional Terms. MMG rejects additional or conflicting terms of any Customer form-purchasing document.
h.Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
i.Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.
I hereby agree to the above Subscription Services Agreement