MAGNET SYSTEMS’ TERMS OF SERVICE MAGNET MESSAGE SERVICES
Last Updated: November 29, 2015
DO NOT ACCESS OR USE THE MAGNET MESSAGE SERVICES UNTIL YOU HAVE CAREFULLY READ THE FOLLOWING TERMS OF SERVICE, INCLUDING THE POLICIES. BY SELECTING ‘AGREE’ OR CLICKING THE ACCEPT BUTTON, YOU AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT WISH TO AGREE, DO NOT AGREE, AND DO NOT USE OR ACCESS THE MAGENT MESSAGE SERVICES. IF YOU ARE AN EMPLOYEE OR AGENT OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY TO THESE TERMS OF SERVICE. THE EFFECTIVE DATE WILL BE THE DATE OF YOUR ACCEPTANCE, YOUR ACCESS OR USE THE MAGNET MESSAGE SERVICES, WHICHEVER DATE IS EARLIEST.
ARTICLE I. DEFINITIONS
SECTION 1.1 DEFINED TERMS
a. Acceptable Use Policy means certain terms and conditions relating to the use of the Magnet Message Services, as such may be updated from time to time, available on Magnet Systems’ website.
b. Copyright Dispute Policy means certain terms and conditions relating to Magnet Systems’ policy regarding copyright infringement and which is in accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”).
c. Customer means the person or entity that contracts directly with Magnet Systems for its Services and either uses the Services internally or provides any part of the Services to its End Users.
d. Customer Data means data or content contained in the Messages or data streams published by Customer or its users to the Magnet Message Services.
e. Customer Service means the features, products, and services that Customer makes available on or through the Customer Products.
f. Customer Products means any websites, applications, or other portals accessible to End Users that are owned and operated by the Customer or at the direction of the Customer or under license from the Customer.
g. Data transfer means the total size of message payloads and metadata (measured in Gigabytes) delivered to Customer’s End Users by the Magnet Message Services during the Service Period.
h. Data storage means the total size of message payloads and metadata (measured in Gigabyte-months) stored within the Magnet Message Services during the Service Period.
i. End User or Monthly User means any unique subscriber, person or entity that has been created by Customer for the ability to access, use, interact with, view or otherwise consume a Customer Service or Customer application that uses the Magnet Message Services.
j. End User Data means any data or information of any End User that is provided to or obtained by any party in the performance of its obligations under this Agreement, including but not limited to, all lists of End Users, former End Users, and all information relating to and identified with such End Users.
k. Fees means the money in US Dollars that Customer is obligated to pay Magnet Systems on a monthly basis for the provision of the Magnet Message Services Plans noted as Pricing, available on the Magnet Systems website and as may be modified from time to time.
l. Intellectual Property Rights means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
m. Magnet Systems Developer Dashboard means the section of the Magnet Systems website to which access is restricted, allowing the Customer to configure account settings, access and view information about their use of the Magnet Message Services.
n. Magnet Systems Proprietary Materials means (i) Magnet Message Services, developed and owned by Magnet Systems, excluding any Open Source Software contained within any Magnet Message Software; (ii) any content (other than Customer Service or Customer Products or any derivative works thereof) embodied in or used in connection with the implementation, operation, maintenance, or hosting of the Magnet Message Services; and (iii) all Intellectual Property Rights embodied therein and all derivative works, improvements, updates, modifications, or translations thereof.
o. Magnet Message Services means Magnet Message Services Software, Magnet Message Services Documentation, or Magnet Message Services Support, offered by Magnet Systems for Fees on a monthly basis through Magnet Systems’ website under this Agreement, the components of which may be changed, updated or revised by Magnet Systems from time to time.
p. Magnet Message Services Plans or Plans means the products and services offered by Magnet Systems for the Magnet Message Services at specific prices, which may be changed by Magnet Systems from time to time. The Magnet Message Services Plans’ analytics, messaging, user management and other specifics are found in the Magnet Message Services Documentation found on Magnet Systems website, which may be revised from to time.
q. Magnet Message Services Software means collectively any Magnet Systems Proprietary software provided under the license terms of this Agreement, and updates or modifications provided thereto by Magnet Systems, and any embedded Open Source Software.
r. Magnet Message Services Support means Magnet Systems’ technical support provided to its Customers for the Magnet Message Services, as such may be updated from time to time, described on Magnet Systems’ website.
s. Magnet Message Services Documentation means collectively, written guides and guidelines that describe the Magnet Message Services, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Customer by download or on Magnet Systems’ website, and that are intended for use in connection with the Magnet Message Services.
t. Message means data originating from or destined for delivery to Customer or an End User participating in a stream of communication such as (but not limited to) a conversation, chat room or comment thread that is sent or received through the Magnet Message Services.
u. Open Source Software means any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software (a) be disclosed or distributed in source code form; or (b) be licensed by the user to third parties for the purpose of making and/or distributing derivative works; or (c) be redistributable at no charge. Open Source Software is licensed or distributed under the Apache Software license. Your rights to use the Open Source Software are governed by this license Agreement that accompanies such components. Magnet Systems does not warrant such Open Source Software in any way and assumes no liability for your use of the Open Source Software. You are subject to the terms of the license Agreements identified in the Open Source Software comments in the applicable source code file(s) and file header delivered with the Open Source Software if you use the Open Source Software.
v. Order Form(s) means the form evidencing an order for the Magnet Message Services Plan submitted online or in written or electronic form, specifying, among other things, the effective date of the order, the specific Magnet Message Services Plan being ordered, the applicable Fees, the billing period, and other charges. Note that the Free Plan (90 days) is a trial offer and governed under this Agreement. Each such Order Form is automatically incorporated by reference into and becomes a part of this Agreement.
w. Service Period means a calendar month for the Magnet Message Services.
x. Service Level Agreement means the document defining the monthly uptime percentage (the “SLA”) the Magnet Message Services will provide to Customer, as such may be updated from time to time, located on Magnet Systems’ website.
y. Trademarks means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.
ARTICLE II. LICENSES
SECTION 2.1 LICENSE TO MAGNET MESSAGE SERVICES AND MAGNET MESSAGE SERVICES DOCUMENTATION
2.1 Magnet Message Services Software Licenses. Subject to compliance with the terms and conditions of this Agreement, and subject to the limitations or restrictions set forth in this Section 2, Magnet Systems hereby grants to Customer a limited, worldwide, non exclusive, non transferable (except as permitted in this Section 2.1), non sublicensable license during the Term of this Agreement to: (a) use the Magnet Message Services Software for the transmission of, and data relating to, Messages as described in the Services Documentation and to provide Customer Services to its End Users i. by creating unique End User through Customer’s administrative account; ii. provided End User remains active (that is continue to pay a fee for such usage); and iii. End User remains in compliance with the End User terms and conditions as described in Section 2.5 below (b) copy, distribute and use the Magnet Message Services Documentation as is reasonably necessary for Customer’s exercise of Customer’s license rights under this Section. 2.2 Restrictions. Customer will not, and will not allow or enable any other person or entity to: (i) use the Magnet Message Services Software or Magnet Message Services Documentation for any purpose except as set forth in this Agreement; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols of or create derivative works of the Magnet Message Services Software; (iii) use, sublicense or distribute, or permit others to use, sublicense or distribute, the Magnet Message Services or rent, electronically distribute, timeshare, or market Magnet Systems Proprietary Materials, or otherwise unless specifically permitted here this Agreement; (vi) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Magnet Message Services Software or Message Services Documentation; (v) access, use, or copy any portion of the Magnet Systems Platform or Magnet Message Services to directly or indirectly to develop, promote or support any product or service that is competitive with the Magnet Message Services; (vi) interfere with or disrupt the integrity or performance of the Magnet Message Services or third-party data contained therein; (vii) attempt to gain unauthorized access to the Magnet Message Services, including access to other Magnet Systems customer’s data; (viii) disclose or publish, without Magnet Systems’ express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Magnet Message Services; or (ix) use the Magnet Message Services including the transmission of Customer Data or End User Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign. 2.3 Ownership. As between the parties, the Magnet Message Services Software and Message Services Documentation and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of Magnet Systems and its suppliers. Subject to Magnet System’s and other third party licensor’s rights in Magnet Message Services Software, as between the parties, you will own all rights in the applications you create. 2.5 United States Government Rights. The Magnet Message Services Software provided under this Agreement is commercial computer software developed exclusively at private expense, and is in all respects the proprietary data belonging solely to Magnet or its licensors. The Magnet Message Services Software is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualify as “commercial items” as defined in 48 C.F.R. 2.101. If the Magnet Message Service Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DOD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government’s right to use, reproduce or disclose the Magnet Message Service Software and any accompanying Magnet Message Services Documentation acquired under this Agreement is subject to the restrictions of this Agreement. If the Magnet Message Services Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government’s right to use, reproduce or disclose the Magnet Message Services Software and any accompanying Magnet Message Services Documentation acquired under this Agreement is subject to the restrictions of this Agreement.
SECTION 2.2 CUSTOMER LICENSE TO MAGNET SYSTEMS
Customer grants to Magnet Systems a non-exclusive, non-transferable, worldwide, perpetual, royalty-free license to collect, analyze or use data relating to Customer’s or Customer’s End Users use of the Magnet Message Services or derived from, or related to, the Customer Data, including the generation of reports for internal, external, and public use. Magnet Systems will distribute such data publicly only in aggregate, non-personally identifiable form that cannot be used to identify Customer, individual End Users, or any individuals. Customer grants to Magnet Systems a non-exclusive, worldwide, perpetual, irrevocable, sublicensable, royalty-free right and license to use and incorporate into the Magnet Message Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the Magnet Message Services.
SECTION 2.3 CUSTOMER DATA
Other than to the limited extent provided in Section 2.2, Customer will have control over any and all Customer Data that Customer or Customer’s End Users upload through the Magnet Message Services. Subject to the restrictions in Section 2.1, Customer hereby grants to Magnet Systems a non-exclusive, royalty-free, worldwide license during the Term of this Agreement to reproduce, distribute, publicly perform, publicly display and digitally perform the Customer Data in conjunction with the Magnet Message Services. Additionally, Customer understands that the technical processing and transmission of the Magnet Message Services, including any Customer Data provided by Customer or Customer’s End Users, may involve (i) transmissions over various third party networks and (ii) changes to conform and adapt to technical requirements of connecting networks or devices, and Customer consents to such transmission and changes.
SECTION 2.4 DATA STORAGE.
Customer acknowledges that, unless expressly agreed otherwise in a writing signed by Customer and Magnet Systems, data storage is not guaranteed by Magnet Systems and agrees that Magnet Systems will not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Data.
SECTION 2.5 USE OF MAGNET MESSAGE SERVICES
Customer will be solely responsible for all use (whether or not authorized) of the Magnet Message Services and Magnet Message Services Documentation under its account, including for the quality and integrity of Customer Data and each Customer Application. Customer will ensure that it has a written Agreement with each End User (“End User Agreement”) that (i) enables Magnet Systems to use all Customer Data and End User Data as necessary to provide the Magnet Message Services, (ii) that protects Magnet Systems’ rights to the same extent as the terms of this Agreement and (iii) allows the use of the Customer Data or End User Data as permitted herein. The End User Agreement must include terms concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. Magnet Systems agrees that, subject to the foregoing requirements, the End User Agreement need not specifically refer to Magnet Systems. Customer will promptly notify Magnet Systems if it becomes aware of any breach of the terms of the End User Agreement that may affect Magnet Systems. Customer will take all reasonable precautions to prevent unauthorized access to or use of the Magnet Message Services and notify Magnet Systems promptly of any such unauthorized access or use.
SECTION 2.6 USE OF TRADEMARKS
Each party will strictly comply with all standards with respect to the other party’s marks which may be furnished by such party to the other party upon reques or as may be available on the marks’ ownership website and as may be modified from time to time. Further, neither party will create a combination mark consisting of one or more marks of the other party. All uses of the other party’s marks will inure to the benefit of the party owning such mark. Notwithstanding the foregoing, Magnet Systems may identify Customer by name, with or without use of the Customer’s trademark, in general promotional lists of Magnet Systems’ customers without Customer’s prior consent.
SECTION 2.7 RESERVATION OF RIGHTS
Customer acknowledges and agrees that except for the rights and licenses expressly granted to Customer in this Agreement, Magnet Systems retains all right, title and interest in and to the Magnet Systems Proprietary Materials, patents, copyrights, mask works, trade secrets, or other intellectual property, and any derivatives, modifications or improvements of the foregoing; and nothing contained in this Agreement will be construed as conferring upon Customer expressly or by implication, statute, operation of law, estoppel, or otherwise, any other license or right.
ARTICLE III CERTAIN RIGHTS AND OBLIGATIONS OF MAGNET SYSTEMS
SECTION 3.1 CERTAIN RIGHTS AND OBLIGATIONS OF MAGNET SYSTEMS
a. Delivery of Magnet Message Services. Subject to the terms and conditions of this Agreement, including the payment of all applicable Fees as set forth in Section 5 below, Magnet Systems will provide to Customer the Magnet Message Services in accordance with the Service Level Agreement as applicable, and Magnet Message Support, as applicable.
b. Suspension / Deactivation of an End User Account. Magnet Systems reserves the right, but not the obligation, to suspend or deactivate, or to require Customer to suspend or deactivate, an End User’s account and access to the Magnet Message Services at any time for any reason, including the malicious use of the Magnet Message Services, or use of the Magnet Message Services to facilitate illegal activity.
c. Suspension / Deactivation of Customer. Magnet Systems reserves the right to suspend or deactivate a Customer’s account and access to the Magnet Message Services if continued operation of the Customer Service threatens the stability or performance of the Magnet Message Services, or if the Customer Service is not implemented in accordance with the Magnet Message Services Documentation or uses the Magnet Message Services to facilitate illegal activity.
d. Availability. Subject to the terms and conditions of this Agreement, Magnet Systems will use commercially reasonable efforts to make the Magnet Message Services available.
ARTICLE IV CERTAIN RIGHTS AND OBLIGATIONS OF CUSTOMER
SECTION 4.1 CERTAIN RIGHTS AND OBLIGATIONS OF CUSTOMER
a. Customer’s Service Responsibility. Except for the express obligations of Magnet Systems set forth in this Agreement, Customer is solely responsible for all activities required by or otherwise related to the development, production, delivery, updating and promotion of the Customer Service. Customer is solely responsible for all customer service issues relating to Customer Services, including functionality, warranty, and technical and End User support.
b. Compliance. Customer will comply with all applicable laws in the performance of its obligations hereunder, and will ensure that each of the following complies with all applicable law: (i) the Customer Services and all related features and functionality; (ii) the terms and conditions applicable to the Customer Services; (iii) the fees and charges applied to or in connection with any Customer Service; (iv) and all materials related to the Customer Services, including, without limitation, all marketing and informational materials and disclosures. Customer will comply with all applicable laws in providing Customer Data or allowing End User Data to be uploaded to or through the Magnet Message Services, including but not limited to, the provision of Protected Health Information as defined in HIPAA (Health Insurance Portability and Accountability Act of 1996) and its promulgated rules and regulations as amended from time to time.
c. Notification of End User Misconduct. Customer will notify Magnet Systems regarding any End User that engages in (or that Customer believes has engaged in) activity that is illegal, fraudulent, malicious, or violates any rights of any third party or the terms of this Agreement. Customer will promptly notify Magnet Systems if it becomes aware of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the Magnet Message Services. Magnet Systems will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords.
d. Proper Implementation. Customer will promptly fix any bugs in Customer Service or software that causes the Magnet Message Services to be accessed in a way that is not consistent with the Magnet Message Services Documentation, or is otherwise detrimental to the performance of the Magnet Message Services.
e. Content Notices. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer’s or its End User’s content in connection with the Magnet Message Services violates such party’s rights including without limitation, notices pursuant to the Digital Millennium Copyright Act. Magnet Systems reserves the right to block any Customer Data and Customer account that violates the terms of this Agreement.
ARTICLE V FEES AND PAYMENT
SECTION 5.1 FEES
a. Magnet Systems Fees. As compensation for its Magnet Message Services under this Agreement, Customer will pay to Magnet Systems the Fees set forth on the Magnet Systems website for the Magnet Message Services and entered on the Order Form. There will be no refunds or credits for partial months of service, upgrades, downgrades, or unused months. Fees listed do not include any applicable sales, use, excise or VAT taxes. Customer will be responsible for payment of all such taxes (excluding taxes based on Magnet Systems’ net income), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Magnet Message Services.
b. Upgrades, Downgrades, Cancellations. Prepaid package upgrades, downgrades, or cancellations must be processed by contacting Magnet billing support group. To ensure upgrades, downgrades, or cancellations are processed for an upcoming Service Period, requests must be submitted before the end of the current service period (using Pacific Standard Time) to avoid billing of Fees for the next year. Customer’s requested upgrades, downgrades and cancellations will constitute an Order Form once confirmed by Magnet Systems.
c. All Payments are transacted by Credit Card. Customer authorizes Magnet Systems to charge your payment for 12 month period on an annual basis. Customer authorizes Magnet Systems to use a third party to process payments and consents to the disclosure of your payment information to such third party.
d. Modification of Fees. Magnet Systems has the right to modify the Magnet Systems Fees and other charges upon written notice to Customer, which will be provided no less than thirty (30) days prior to the new charges going into effect. The notice period is not applicable to any free Plans.
e. Billing Correspondence. Magnet Systems will send billing correspondence to the email address entered as billing contact by Customer.
e. Payment Disputes. In the event of a good faith dispute as to the calculation of a charge, Customer will promptly give written notice to Magnet Systems stating the details of any such dispute and will promptly pay any undisputed amount. The acceptance by Magnet Systems of such partial payment will not constitute a waiver of payment in full by Magnet Systems of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of Magnet Systems in connection with the collection of any unpaid amounts due to Magnet Systems hereunder.
f. Timely Payment; Suspension of Service. Any undisputed amount due to Magnet Systems under this Agreement and not paid within 30 days of invoice due date may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts will constitute a default hereunder and will entitle Magnet Systems to suspend Customer access to the Magnet Message Services without notice at Magnet Systems’ sole discretion.
ARTICLE VI WARRANTIES AND DISCLAIMERS
SECTION 6.1 MAGNET SYSTEMS WARRANTIES
a. Magnet Systems warrants it has full power and authority to enter into and perform the Magnet Message Services as described in this Agreement.
b. With respect to Magnet Message Services, Magnet Systems represents and warrants that the Magnet Message Services provided to Customer hereunder will conform substantially to specifications set forth in the applicable Magnet Message Services Documentation, as may be amended from time to time at Magnet Systems’ sole discretion. Magnet Systems does not warrant that Customer’s or End Users’ use of the Service will be error-free or uninterrupted.
c. The preceding warranties will not apply if: (i) any products, services, or deliverables provided by Magnet Systems hereunder are used in material variation with this Agreement or the Magnet Message Services Documentation; (ii) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of Magnet Systems; or (iii) a defect in any products, services, or deliverables provided hereunder has been caused by any of Customer’s equipment, software or third party software. In addition, the preceding warranties do not apply to downtime, service interruption or other related issues covered by Magnet Systems’ Service Level Agreement (the “SLA Obligations”). Customer’s sole and exclusive remedies for Magnet Systems’ failure to meet an SLA Obligation is described in the applicable Service Level Agreement.
d. In the event Customer discovers that the Magnet Message Services provided by Magnet Systems hereunder, as applicable, are not in conformance with the representations and warranties set forth in Section 6.1 and reports such non-conformity to Magnet Systems, Magnet Systems will, at Magnet Systems’ discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to Customer, or (ii) refund Customer any prepaid fees covering the remainder of the then-current Term dating from the Customer’s notice of such non-conformance. THE REMEDY STATED IN THIS PARAGRAPH AND THE REMEDY STATED IN MAGNET SYSTEMS’S SERVICE LEVEL AGREEMENT, AS APPLICABLE, CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND MAGNET SYSTEMS’S ENTIRE LIABILITY UNDER SECTIONS 6.1 OF THIS AGREEMENT.
SECTION 6.2 CUSTOMER WARRANTIES
a. Customer represents and warrants that at all times during the term of this Agreement, Customer’s installation, configuration, and use of Magnet Message Services will (i) conform to specifications set forth in the applicable Magnet Message Services Documentation and (ii) comply with all license and use restrictions with respect to any third party software used by, or incorporated into, the Magnet Message Services.
b. Customer hereby represents, warrants and covenants that prior to transmitting End User Data using the Magnet Message Services and at all times thereafter, it will provide all necessary disclosures and obtain all necessary consents from each End User regarding the disclosures and uses of the End User Data by Magnet Systems and by Customer, including without limitation those consents and disclosures necessary pursuant to COPPA (Children’s Online Privacy Protection Act).
c. Customer further represents and warrants that, at all times while this Agreement is in effect, Customer will maintain and adhere to all commercially reasonable security measures to protect Customer Service and the data contained therein from unauthorized control, tampering, or any other unauthorized access, including, without limitation, compliance with applicable laws.
SECTION 6.3 DISCLAIMERS
a. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER BY MAGNET SYSTEMS ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, PRIVACY OF INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION, AND EFFORT IS WITH THE CUSTOMER. MAGNET SYSTEMS DOES NOT REPRESENT OR WARRANT THAT THE MAGNET MESSAGE SERVICES WILL BE ALWAYS AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. THIS DISCLAIMER OF WARRANTY EXTENDS TO CUSTOMER AND END USERS OF CUSTOMER’S PRODUCTS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
b. THE SOFTWARE IS NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR.
ARTICLE VII INDEMNIFICATION AND LIMITATION OF LIABILITY
SECTION 7.1 INDEMNIFICATION
Customer will indemnify, defend and hold harmless Magnet Systems, its officers, directors, employees, and the successors and assigns of the foregoing from and against any and all claims by an unaffiliated third party directly or indirectly arising from or related to (i) facts that, if true would constitute a breach of this Agreement by Customer, (ii) Customer’s or its End Users’ access to, use, misuse or illegal use of the Magnet Message Services, Customer Data or End User Data, (iii) the violation or infringement by the Customer Service or the Customer Products of such third party’s U.S. Intellectual Property Rights, or (iv) fines or penalties as a result of breach of security or privacy of Customer Data or End User Data confidential information or individually identifiable health information. Should Customer or Customer’s End User purchase or use the Magnet Message Services for any such unintended or unauthorized use as defined in Section 6.1.b,, Customer shall indemnify and hold Magnet Systems and its officers, subsidiaries and affiliates harmless against all claims, costs, damages, and expenses, and reasonable attorney fees arising out of, directly or indirectly, any claim of product liability, personal injury or death associated with such unintended or unauthorized use, even if such claim alleges that Magnet Systems was negligent regarding the design of any part of the Magnet Message Services. Magnet Systems reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Customer agrees to cooperate with any reasonable requests to assist Magnet Systems’ defense of such matter.
SECTION 7.2 LIMITATION OF LIABILITY
IN NO EVENT WILL MAGNET SYSTEMS BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID TO MAGNET SYSTEMS HEREUNDER DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
ARTICLE VIII TERM, TERMINATION, AND EFFECTS
SECTION 8.1 TERM AND TERMINATION
a. This Agreement will commence on the Effective Date and unless otherwise indicated on an Order Form will continue on a month-to-month basis until terminated as set forth herein.
b. Magnet Systems may terminate this Agreement, without cause, upon providing Customer with thirty (30) days prior written notice.
c. Magnet Systems may terminate this Agreement, immediately upon Customer’s material breach of the terms of this Agreement.
c. Notwithstanding the foregoing, Magnet Systems reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any free, trial, or beta versions with or without notice.
SECTION 8.2 EFFECTS OF TERMINATION
Upon expiration or termination of this Agreement, all licenses granted to the Magnet Message Services and the Magnet Message Services Documentation will expire. Magnet Systems will discontinue the provision of the Magnet Message Services, and Customer will immediately pay any outstanding invoices for the Magnet Message Services through the date of termination.
ARTICLE IX COPYRIGHT
SECTION 9.1 COPYRIGHT INFRINGEMENT
The Digital Millennium Copyright Act (the DMCA), as it relates to online service providers, like Magnet Systems, provides guidelines to remove material that allegedly violates someone’s copyright. Magnet Systems respects others’ intellectual property rights, and reserves the right to delete or disable content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. To review Magnet Systems’ complete Copyright Dispute Policy, which is incorporated by reference herein, and learn how to report potentially infringing content, visit the Magnet System’s website and to learn more about the DMCA, visit copyright.gov/legislation/dmca.pdf.
ARTICLE X GENERAL TERMS
SECTION 10.1 CONFIDENTIAL INFORMATION
a. Definition. Confidential Information means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, End User data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information will not include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.
b. Each Party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other Party. The Party that receives Confidential Information (the Receiving Party) hereby agrees (i) to hold the other Party’s (the Disclosing Party) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to copy or reverse engineer any such Confidential Information, and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and will be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party’s confidentiality obligations in this Agreement.
SECTION 10.2 ENTIRE AGREEMENT; SEVERABILITY
This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior Agreements and understandings between the parties concerning such subject matter. Except as provided in Section 10.11, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from the required information on an Order Form as indicated above) that Customer may provide to Magnet Systems or use in connection with the procurement of Magnet Message Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Magnet Systems to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference will be: (1) the required information for ordering on the applicable Order Form (for clarify, the pre-printed terms on a Customer Order Form will have no force or effect), (2) this Agreement, (3) pricing per the Magnet Systems website (www.magnet.com). If any one or more of the provisions of the Agreement for any reason is be held to be invalid, illegal or unenforceable, the same will not affect any of the other portions of this Agreement.
SECTION 10.3 WAIVERS
The waiver by either Party of a breach of any provision contained herein will be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
SECTION 10.4 COMPLIANCE WITH EXPORT CONTROLS AND OFAC REGULATIONS
The Magnet Message Services and Magnet Systems Proprietary Materials are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer agrees that it will not import, export, re-export, transfer or otherwise use the Magnet Message Services or Magnet Systems Proprietary Materials in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Magnet Message Services and Magnet Systems Proprietary Materials, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause Magnet Systems to be violation of these laws and regulations, and will indemnify Magnet Systems for any fines, penalties or other liabilities incurred by Magnet Systems for Customer’s failure to comply with this provision.
SECTION 10.5 RELATIONSHIP OF THE PARTIES
The Parties will perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement will be construed to give either party the power to direct or control the activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that neither party grants the other party the power or authority to make or give any Agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title or interest of such other party.
SECTION 10.6 ASSIGNMENT
Neither this Agreement nor any rights hereunder may be transferred or assigned by either party without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, Magnet Systems may assign or transfer this Agreement or any rights or obligations hereunder without Customer’s consent to a third party acquirer of all, or substantially all, of the assets or business of Magnet Systems, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party will be null and void.
SECTION 10.7 FORCE MAJEURE
Neither party hereto will be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of transportation facilities, lack or failure of public utilities, laws or governmental regulations or other causes that are beyond the reasonable control of such party. Obligations hereunder, however, will in no event be excused but will be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) days, the parties hereto will consult with each other to determine whether this Agreement should be modified or terminated.
SECTION 10.8 SURVIVAL
Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, Intellectual Property, limitation of liabilities, and indemnification will survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.
SECTION 10.9 GOVERNING LAW; JURISDICTION AND VENUE
This Agreement will be governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. For all purposes of this Section 10.9, the parties consent to exclusive jurisdiction and venue in Santa Clara County, California for state Courts and San Francisco County for federal Courts. Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction for provisional relief, including a temporary restraining order, temporary injunction, permanent injunction and/or order of specific performance, as may appear reasonably necessary to preserve the rights of either party.
SECTION 10.10 NOTICES
Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the Party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days when mailed by United States mail; (iv) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (v) the first business day after sending by email (provided email will not be sufficient for notices of an indemnifiable claim). All notices to Customer will be sent to the account holder designated in the Magnet Systems Developer Dashboard. Notices to Magnet Systems will be sent to: Magnet Sytems, 2300 Geng Road, Suite 100, Palo Alto, CA 94303 or email@example.com.
SECTION 10.11 MODIFICATIONS
Magnet Systems may revise this Agreement from time to time, and will always post the most current version on the Magnet Systems website. If a revision meaningfully reduces Customer rights or increases or changes Customer obligations, Magnet Systems will notify Customer (by, for example, sending a message to the email address associated with Customer’s account, or posting a notice on the Magnet Systems Developer Dashboard). By continuing to use or access the Magnet Message Services after the revisions come into effect, you agree to be bound by the revised Agreement.
SECTION 10.12 OTHER SERVICES
Magnet Systems will entertain the provision of different services or Plans. Such Plans will be decided and agreed to by the parties in a separate agreement executed by authorized representatives of the parties prior to going into effect.