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:
1.1 “Affiliate” means with respect to a Party, any entity that currently or in the future controls, is controlled by or is under common control with such Party for so long as such control exists, where “control” means ownership of more than fifty percent (50%) of the outstanding securities representing the right to vote for the election of directors or other managing authority of such Party.
1.2 “Applicable Law” means all laws, rules, regulations and other proclamations having the effect of law anywhere throughout the world that are applicable to any activity carried out or proposed to be carried out by a Party under this Agreement.
1.3 “Authorized User” means any doctor, osteopathic doctor, nurse practitioner, physician assistant, registered nurse, other licensed medical professional, or administrator: (a) who Customer authorizes to access the Mocingbird Platform on its behalf; (b) for whom a subscription to the Mocingbird Platform has been purchased under an Order; and (c) who has been supplied access credentials to the Mocingbird Platform by Customer (or by Mocingbird, at Customer’s request).
1.4 “Authorized User Data” means all data, content and other material that an Authorized User transmits to the Mocingbird Platform through the functionality available on the web-accessible user interface of the Mocingbird Platform.
1.5 “Confidential Information” means any information disclosed, directly or indirectly, by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to this Agreement that: (a) is designated as “confidential,” or in some other manner to indicate its confidential nature; or (b) otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure and the nature of the information itself. Without limiting the foregoing, the Mocingbird Materials, except for the public-facing aspects of the Mocingbird Platform, are Mocingbird’s confidential information, and the Customer Data are Customer’s confidential information. However, Confidential Information does not include any information which: (i) is or becomes generally known and available to the public through no act or omission of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure, as shown by the Recipient’s contemporaneous records; (iii) is lawfully obtained by the Recipient from a third party who has the right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser and without any use of or reference to the Discloser’s Confidential Information.
1.6 “Customer Data” means all data, content and other material that Customer transmits to the Mocingbird Platform through the functionality available on the web-accessible user interface of the Mocingbird Platform, but in all cases excluding Mocingbird Data and Authorized User Data.
1.7 “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through third-party services.
1.8 “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Mocingbird Platform or the Mocingbird Documentation that Mocingbird may provide to Customer from time-to-time during the Subscription Term, but excluding any New Version.
1.9 “Mocingbird Data” means any: (a) data, information or other routines generated by or on behalf of Mocingbird through any automated data analysis, processing or other operations of the Mocingbird Platform; and (b) aggregated and de-identified data generated or collected by or on behalf of Mocingbird in connection with the Mocingbird Platform, including any such data based on or derived from the Customer Data.
1.10 “Mocingbird Documentation” means any documentation that Mocingbird makes available to Customer that describes the features or requirements of the Mocingbird Platform.
1.11 “Mocingbird Materials” means the Mocingbird Platform and Mocingbird Documentation.
1.12 “Mocingbird Platform” means Mocingbird’s proprietary software-as-a-service software platform that manages certifications and continuing medical education requirements.
1.13 “New Version” means any new version of the Mocingbird Platform or Mocingbird Documentation that Mocingbird may from time-to-time introduce and market generally as a distinct licensed product (as may be indicated by Mocingbird’s designation of a new version number), and which Mocingbird may make available to Customer at an additional cost under a separate written agreement.
1.14 “Order” means a mutually executed order form referencing and incorporating the terms of this Agreement.
1.15 “Party” means Mocingbird or Customer individually, and “Parties” means Mocingbird and Customer collectively.
1.16 “Subscription Term” means the subscription term for the Mocingbird Platform set forth in an Order.
2.1 License from Mocingbird. Mocingbird hereby grants to Customer during the Subscription Term a non-exclusive, non-transferable (except under Section 13.4), non-sublicensable and worldwide license to allow its Authorized Users to access and use the Mocingbird Platform and Mocingbird Documentation solely as necessary to track certification and continuing medical education requirements (“Authorized Purpose”).
2.2 License from Customer. Customer hereby grants to Mocingbird during the Subscription Term a non-exclusive, irrevocable (subject to Customer’s rights to terminate this Agreement), non-transferable (except under Section 13.4), royalty-free and worldwide license to use, store, reproduce, modify and otherwise exploit the Customer Data for internal business purposes as necessary to provide and improve the Mocingbird Platform. The foregoing rights are sublicensable by Mocingbird to any of its Affiliates and to subcontractors permitted under Section 13.4. Customer acknowledges that Mocingbird’s use and exploitation of Authorized User Data is subject to (a) the terms of Mocingbird to which an Authorized User is required to agree as a condition to accessing or using the Mocingbird Platform, as such terms are updated by Mocingbird from time to time; and (b) the policy of Mocingbird describing Mocingbird’s access to and use of Personal Information to which an Authorized User is required to agree in connection with accessing or using the Mocingbird Platform, as such policy is updated by Mocingbird from time to time.
2.3 Authorized Users. Customer is solely responsible for: (a) identifying and authenticating all Authorized Users; (b) approving access by such Authorized Users to the Mocingbird Materials; (c) protecting against unauthorized access by Authorized Users; (d) maintaining the confidentiality of usernames, passwords and account information for Authorized Users; and (e) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts. Mocingbird is not responsible for any harm arising from any acts or omissions of any Authorized Users, including individuals who were not authorized to access the Mocingbird Materials but who were able to gain access for any reason. Customer will notify Mocingbird immediately of any actual or suspected breach of this Agreement by any Authorized User. Any breach of this Agreement by any Authorized User is deemed a breach by Customer.
2.4 Monitoring; Suspension; Reporting. Mocingbird may, but is under no obligation to, monitor Customer’s use of the Mocingbird Platform. Mocingbird may, in its reasonable discretion, suspend access to the Mocingbird Materials if Mocingbird believes that: (a) Customer is in breach of this Agreement; (b) use of the Mocingbird Materials as contemplated in this Agreement poses a security risk; (c) Customer’s use of the Mocingbird Materials violates, misappropriates, or infringes the rights of Mocingbird or a third party; (d) there is a bug or performance issue with the Mocingbird Materials that adversely affects Mocingbird’s servers or other systems or Customer’s use of the Mocingbird Materials otherwise imposes unexpected or excessive demands on the same; or (e) any Applicable Law prohibits Mocingbird from performing any of its obligations under this Agreement.
2.5 Restrictions. Customer may not, directly or indirectly, and may not authorize any third party (including any Authorized User) to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how of, the Mocingbird Materials, or reconstruct, or discover, any hidden or non-public elements of the Mocingbird Materials (except to the extent expressly permitted by Applicable Law notwithstanding this restriction); (b) translate, adapt, or modify the Mocingbird Materials; (c) write or develop any program based upon the Mocingbird Materials, or, to the fullest extent permitted by Applicable Law, otherwise use any portion of the Mocingbird Materials in any manner for the purpose of developing, distributing or making accessible products or services that compete with any portion of the Mocingbird Materials; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Mocingbird Materials; (e) use any portion of the Mocingbird Materials for any purpose other than the Authorized Purpose; (f) permit any portion of the Mocingbird Materials to be used by any persons other than Authorized Users; (g) alter or remove any trademarks or proprietary notices contained in or on the Mocingbird Materials; (h) circumvent or otherwise interfere with any authentication or security measures of the Mocingbird Platform, or otherwise interfere with or disrupt the integrity or performance thereof; (i) use any portion of the Mocingbird Materials in violation of any Applicable Laws, rules or regulations; or (j) transmit to or from the Mocingbird Platform any unlawful, infringing, harmful or other data or code, provided that if Customer knows or suspects that Customer has so transmitted to the Mocingbird Platform any such data or code, then Customer will immediately provide Mocingbird with written notice of the same and reasonable assistance to help enable Mocingbird to identify and delete the data or code from its systems.
2.6 Feedback. Customer may elect to provide to Mocingbird ideas, suggestions, or feedback related to any aspect of the Mocingbird Materials (“Feedback”). Such Feedback will be non-confidential, and Customer hereby grants to Mocingbird a non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), royalty-free, and worldwide license to implement, use, modify, or otherwise exploit, in any way without restriction, the Feedback, without any fees, attribution or other obligations to Customer.
2.7 Third Party Services. The Mocingbird Platform may also contain links to third party services (“Third Party Services”). Third Party Services are not under Mocingbird’s control, and Mocingbird is not responsible for their content. Customer’s interactions and business dealings with Third Party Services, including products or services offered by such third parties, are solely between Customer and the providers of the Third Party Services. Customer will be subject to the relevant terms and conditions associated with the Third Party Services, including any privacy policies and terms of service.
3.1 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.
3.2 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.
4.1 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.
4.2 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”).
5.1 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.
5.2 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.
5.3 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).
6.1 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.
6.2 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.
7.1 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.
7.2 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.
7.3 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.
9.1 Mutual. Each Party represents and warrants to the other Party: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full corporate right, power, and authority to enter into and perform its obligations and grant the licenses it grants or is required to grant under this Agreement; (c) the execution of an Order by its representative whose signature is set forth on the Order has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when an Order has been executed by both Parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.2 By Customer. Customer further represents, warrants and covenants to Mocingbird that Customer owns or otherwise has and will continue to have the necessary rights in and relating to the Customer Data so that, as received by Mocingbird and used in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any rights of any third party or violate any Applicable Laws.
10.1 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.
10.2 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.
10.3 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.
13.1 Interpretation. Unless a clear contrary intention appears: (a) any term defined in the singular includes the plural when required by the applicable context; (b) the headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the interpretation of this Agreement; and (c) uses of “including” mean “including, without limitation.” Any ambiguity in this Agreement will be interpreted without regard to which Party drafted this Agreement or any part thereof.
13.2 Non-Solicitation. During the Subscription Term and for one (1) year thereafter, Customer shall not, and shall not assist any other Party to, directly or indirectly recruit or solicit, other than by general advertisement not directed specifically to any person or company, for employment or engagement as an independent contractor any person then or within the prior six (6) months employed or engaged by Mocingbird. In the event of a violation of this Section 13.2, Mocingbird will be entitled to liquidated damages equal to the compensation paid by Mocingbird to the applicable employee or contractor during the prior twelve (12) months.
13.3 Changes. Mocingbird may make changes or updates to the Mocingbird Materials during the Subscription Term, including to reflect changes in technology, industry practices and patterns of system use; however any such changes will not result in a material reduction in the level of performance or availability of the Mocingbird Materials provided to Customer during the Subscription Term.
13.4 Assignment; Subcontractors. Neither Party may assign this Agreement nor any of its rights under this Agreement without the prior written consent of the other Party, except that Mocingbird may assign this Agreement without the consent of Customer as part of a corporate reorganization, to any Mocingbird Affiliate, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Mocingbird in its sole discretion may from time-to-time engage third parties to perform any of its obligations under this Agreement, including hosting or other services. Mocingbird will be responsible for ensuring all such parties comply with this Agreement.
13.5 Force Majeure. Neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet, but in all cases excluding the payment of fees (each, a “Force Majeure”). The delayed Party must give the other Party notice of such Force Majeure and use commercially reasonable efforts to correct such failure or delay in performance.
13.6 Governing Law. If there is any dispute between the Parties arising out of this Agreement (each, a “Dispute”), then authorized representatives of each Party will negotiate in good faith to resolve the Dispute. If such representatives cannot resolve the Dispute after no less than thirty (30) days of good faith negotiations, then either Party may pursue all available remedies exclusively in courts of competent jurisdiction in Washington County, Rhode Island, and each Party waives all rights to challenge such venue on any theory. This Agreement will be governed by the laws of the State of Delaware, excluding its conflicts of laws principles.
13.7 Publicity. Mocingbird may use Customer’s name as a reference for marketing or promotional purposes on Mocingbird’s website and in other communications with existing or potential Mocingbird customers, investors or acquirers, subject to any written trademark policies Customer may provide Mocingbird in writing, with reasonable advanced notice. Neither Party will issue any press release or publish any publicly available statements or documentation describing the activities taking place under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld.
13.8 Entire Agreement; Order of Precedence. All Orders are incorporated by reference into this Agreement. In the event of a conflict between the terms of this Agreement and any Order, the terms in this Agreement will prevail unless the Order expressly states otherwise. This Agreement, including all Orders, is the sole agreement of the Parties concerning the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings with respect to said subject matter. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Mocingbird to object to such terms.
13.9 Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.10 Waivers; Amendments. All waivers of rights arising under this Agreement must be made in writing by the Party waiving rights, and all amendments to this Agreement must be made in writing and signed by authorized representatives of both Parties.
13.11 Notices. Any notice required or permitted under this Agreement will be effective if it is: (a) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth in the Order, in the case of Customer, or as set forth below, in the case of Mocingbird, and with the appropriate postage affixed; or (b) sent via electronic mail to the applicable person set forth in the Order, in the case of Customer, or as set forth below, in the case of Mocingbird. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery by a courier, and/or on the same day an electronic mail is sent to the recipient. Notwithstanding the foregoing in this Section 13.11, any notices threatening litigation or alleging breach of this Agreement must be sent under method (a) in this Section.
13.12 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
13.13 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, then: (a) it will be severed from this Agreement; (b) the court of competent jurisdiction will replace the severed provision with another provision that most closely reflects the Parties’ original intent to the fullest extent permitted by Applicable Law; and (c) this Agreement will remain in full force and effect.
13.14 Counterparts. This Agreement may be signed in counterparts, each of which will be deemed an original, and all of which together will constitute a single agreement.