This Subscription Agreement (“Agreement”) is made between My MOC, Inc. (“Mocingbird”) and the Company identified as the customer in the Order (defined below) (“Customer”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
In addition to terms defined elsewhere in this Agreement, the following terms will have the following meanings when used in this Agreement:
Support Services; Service Levels. Mocingbird further agrees to: (a) provide commercially reasonable technical support to Customer, by email or telephone, during Mocingbird’s normal business hours of 8 a.m. to 6 p.m. ET, excluding U.S. national holidays and days when banks in the U.S. are closed; (b) use commercially reasonable efforts to: (i) respond to support requests in a timely manner; (ii) resolve such requests by providing updates and/or workarounds to Customer, consistent with Mocingbird’s assigned severity level to the issues identified in such requests and their impact on Customer’s business operations, in Mocingbird’s reasonable discretion; and (iii) schedule downtime for routine maintenance of the Mocingbird Platform between the hours of 12 a.m. and 5 a.m. ET (“Scheduled Downtime”); and (c) make the Mocingbird Platform available to Customer at least 99% of the time measured on a rolling 6-month basis, excluding downtime for any of the following: (1) access to or use of the Mocingbird Materials by Customer or any end-user acting on Customer’s behalf that does not comply with this Agreement; (2) Customer Failure (defined in Section 4.2); (3) Force Majeure (defined in Section 13.5); (4) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Mocingbird pursuant to this Agreement; (5) Scheduled Downtime; or (6) suspension of access to the Mocingbird Materials pursuant to Section 2.4.
Updates. Mocingbird will provide Customer with all Maintenance Releases that Mocingbird may, in its sole discretion, make generally available to its licensees at no additional charge. Customer is required to accept all Maintenance Releases. All Maintenance Releases provided by Mocingbird to Customer are deemed licensed to Customer in Section 2.1. Customer does not have any right hereunder to receive any New Versions that Mocingbird may, in its sole discretion, release from time-to-time.
Customer Systems; Customer Data. Notwithstanding anything to the contrary in this Agreement, Customer: (a) has and will retain sole control over the security of, operation, maintenance, management of, and all access to and use of, the Customer Systems, and Customer is solely responsible for obtaining all internet connectivity necessary to access and use the Mocingbird Platform at all times during the Subscription Term; (b) will at all times during the Subscription Term: (i) set up, maintain, and operate in good repair all Customer Systems on or through which the Mocingbird Platform is accessed or used as necessary to enable Mocingbird to perform its obligations under this Agreement; (ii) if applicable, will provide Mocingbird personnel with such access to the Customer Systems as is necessary for Mocingbird to perform its obligations in connection with this Agreement; and (iii) will provide all cooperation and assistance as Mocingbird may reasonably request to enable Mocingbird to exercise its rights and perform its obligations in connection with this Agreement; and (c) Customer is solely responsible for any security vulnerabilities and the consequences of such vulnerabilities arising from Customer Data, including any viruses, Trojan horses, worms or other programming routines in Customer Data that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.
Failure or Delay. Mocingbird is not responsible or liable for any delay or failure of performance arising from in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement, including any unavailability, errors, defects or other issues in connection with the Customer Systems or Customer Data (each, a “Customer Failure”).
Fees. Customer will pay Mocingbird all fees of the type and in the amounts set forth in the applicable Order (“Fees”). Unless otherwise set forth in the applicable Order, all Fees are non-cancellable, non-refundable and non-recoupable.
Payment Terms. Unless otherwise set forth in the applicable Order, all Fees will be billed in advance, and all invoices for Fees are due and payable in United States dollars within 30 days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by Applicable Law.
Taxes. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Mocingbird’s net income).
Ownership. As between the Parties: (a) subject to the license that Mocingbird grants to Customer in Section 2.1, Mocingbird owns and retains all rights, title and interest in and to the Mocingbird Materials and Mocingbird Data, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other technology in any form pertaining to the Mocingbird Platform (collectively, “Mocingbird IP”), and Mocingbird has the right to use and exploit all such Mocingbird IP without restriction; and (b) Customer solely owns and retains all rights, title and interest in and to the Customer Data, subject to the rights granted to Mocingbird in Section 2.2.
Reservation of Rights. All rights that a Party does not expressly grant to the other in this Agreement are hereby reserved and neither Party grants to the other any implied rights or licenses under any theory.
Term. This Agreement will start on the date of last signature of the first Order executed by the Parties and continue, unless terminated earlier in accordance with this Agreement, until all Orders have expired or been terminated. The term of each Order will begin on the date of last signature and continue, unless terminated earlier in accordance with this Agreement, until the end of the applicable Subscription Term. Except as otherwise described in an Order, the term of each Order will automatically renew for additional periods equal in length to the expiring Subscription Term unless either Party provides notice of non-renewal at least thirty (30) days prior to commencement of the next renewal term.
Termination. Either Party may terminate this Agreement or any Order by written notice if the other Party is in material breach of this Agreement or such Order, where such material breach is not cured within thirty (30) days after written notice of such breach from the non-breaching Party. For the avoidance of doubt: (a) by way of example only, Customer’s noncompliance with Section 2.5 or 5 is deemed a material breach of this Agreement; (b) the expiration or termination of one Order will not impact the term of any other Orders then in-effect; and (c) any termination of this Agreement automatically will terminate all then-effective Orders.
Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) all outstanding Orders and access to the Mocingbird Materials will automatically terminate; and (b) all outstanding payment obligations of Customer will become due and payable immediately. For the avoidance of doubt, Customer must request return of Customer Data prior to expiration or termination of this Agreement and upon expiration or termination, Mocingbird has no further obligation to store or permit retrieval of such data except as set forth in the following sentence. If Customer does request Customer Data return in accordance with the preceding sentence, then Mocingbird will use commercially reasonable efforts to provide Customer with a copy of the Customer Data in a reasonable format to be determined by Mocingbird in its sole discretion. The following Sections, and any defined terms and provisions required to interpret or enforce those Sections (but only to the extent required for such interpretation or enforcement), will survive the termination or expiration of this Agreement: 1, 2.3, 2.5, 2.6, 2.7, 4.2, 5, 6, 7.3, 8, 9, 10, 11, 12, and 13.
The Receiving Party will use the same efforts to protect the Disclosing Party’s Confidential Information from loss or alteration, and unauthorized access, use or disclosure, that it uses to protect its own confidential information of similar sensitivity, but in no event will such efforts be less than reasonable efforts. The Receiving Party may only use the Disclosing Party’s Confidential Information to perform its obligations and exercise its rights under this Agreement. The Receiving Party will not disclose or provide access to the Disclosing Party’s Confidential Information to any third party except: (a) for disclosures to the Receiving Party’s: (i) employees with a need to know such information to perform its obligations under the Agreement and to subcontractors permitted under Section 13.4; or (ii) professional advisors or potential investors or acquirers (each in (i) and (ii), a “Permitted Recipient”); and (b) the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled by Applicable Law to do so; provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party will promptly inform the Disclosing Party in writing of any actual or suspected loss or alteration of, or unauthorized access to, use or disclosure of, Confidential Information. The Receiving Party will be liable for any breach of this Agreement by its Permitted Recipients.
By Mocingbird. Mocingbird will: (a) defend, or, at its option, settle, any claim brought against Customer by a third party alleging that Customer’s use of the Mocingbird Platform for which there is an active Subscription Term at the time of the claim constitutes a direct infringement of any intellectual property rights of any third party (each, a “Claim”); and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Mocingbird; provided that Customer provides Mocingbird: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Mocingbird in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, Mocingbird may, at its sole option and expense: (1) procure for Customer the right to continue to use the infringing items; (2) modify the infringing items to make them non-infringing; (3) replace the infringing items with non-infringing technology having substantially similar capabilities; or (4) if none of the foregoing is commercially practicable, terminate all Orders related to the applicable Mocingbird Materials or this Agreement. Notwithstanding the foregoing in this Section 10.1, Mocingbird will have no obligation under this Section 10.1 (w) for any use of the Mocingbird Materials in combination with software, products, services or technologies not provided by Mocingbird, to the extent that the Mocingbird Materials would not be infringing but for such combination; (x) arising from or in connection with Customer’s failure to use the Mocingbird Materials in accordance with this Agreement; (y) for any claims that fall within the scope of Section 10.3; or (z) for any claims arising out of Customer’s use of any Third Party Services.
Disclaimer. SECTION 10.1 STATES THE ENTIRE LIABILITY OF Mocingbird, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY CLAIMS FALLING WITHIN THE SCOPE OF SECTION 10.1.
By Customer. Notwithstanding anything to the contrary in Section 10.1, Customer will defend, or, at its option, settle, any claim brought against Mocingbird by a third party arising from or in connection with any Customer Data or alleging that any Customer Data and/or any use of the same in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any Applicable Laws; provided that Mocingbird provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with, the defense or settlement of any such claim. Customer will pay all damages finally awarded against Mocingbird (or the amount of any settlement Customer enters into) with respect to any such claim defended by Customer. Mocingbird may appear in connection with such claims, at Customer’s expense, through counsel reasonably acceptable to Customer.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE FOLLOWING TERMS APPLY:
MOCINGBIRD DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. WITHOUT LIMITING THE FOREGOING, MOCINGBIRD DOES NOT REPRESENT OR WARRANT THAT: (a) THE MOCINGBIRD MATERIALS WILL BE ERROR-FREE OR UNINTERRUPTED; (b) THE MOCINGBIRD MATERIALS WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE; (c) ANY DATA PROVIDED BY OR THROUGH THE MOCINGBIRD MATERIALS (INCLUDING ANY THIRD PARTY CONTENT) WILL BE ACCURATE OR COMPLETE; OR (d) SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER’S DEVICES OR ANY THIRD PARTY TECHNOLOGY USED IN CONNECTION WITH THE MOCINGBIRD MATERIALS.
IN NO EVENT WILL MOCINGBIRD BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS TERMINATION, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF MOCINGBIRD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND MOCINGBIRD’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE ORDER(S) GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
If the term of the initial Order includes a free trial period, Mocingbird will make the Mocingbird Platform available to Customer on a trial basis free for the period specified in the Order.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE TRIAL PERIOD THE MOCINGBIRD MATERIALS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MOCINGBIRD SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE MOCINGBIRD MATERIALS FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MOCINGBIRD’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL PERIOD SHALL NOT EXCEED $100. WITHOUT LIMITING THE FOREGOING, MOCINGBIRD DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (1) CUSTOMER’S USE OF THE MOCINGBIRD MATERIALS DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (2) CUSTOMER’S USE OF THE MOCINGBIRD MATERIALS DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (3) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MOCINGBIRD FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE MOCINGBIRD MATERIALS DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.