MANAGED SERVICES AGREEMENT
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The Services are provided to you (the “Client”) by MX2 Technology, Inc., with its corporate headquarters at 375 Fairview Way, Milpitas, California 95035 (“MX2”) (each, a “Party,” collectively the “Parties”).
Please read this Managed Services Agreement (“Agreement”) before using the Services. By using the Services, you are agreeing to these terms.
If you do not agree to the terms of this Agreement, do not use the Services. If you are entering into this Agreement on behalf of a company or other legal entity, you hereby represent and warrant you have the actual legal authority to bind such entity to the terms and conditions of this Agreement. If you do not have such authority, you may not indicate acceptance of the terms of this Agreement on behalf of such entity and may not use the Services. This Agreement was last updated December 9, 2020 and is effective between MX2 and Client the date the applicable Order Form is executed by the Parties (“Effective Date”)
MX2 shall provide information technology infrastructure, management, support, and professional services (“Services”) to Client, as set forth in the applicable statement of work, order form, or other mutually agreed upon ordering document which expressly incorporates the terms and conditions of this Agreement (collectively, “Order Form”). Additional Services may be added upon mutual written agreement of the Parties. If Client purchases professional services, Client agrees to provide all assistance reasonably requested by MX2 in order to provide the professional services to Client, including, but not limited to access to relevant information, personnel, resources, facilities, and equipment. MX2 retains all right, title and interest in and to all deliverables (including any intellectual, property rights therein) provided in connection with the Services (“Deliverables”).
2. Fees and Payment.
Subject to the terms and conditions herein, all fees for the Services will be set forth in the applicable Order Form (“Fees”). Unless otherwise agreed to in a mutually executed Order Form, Client will pay to MX2 all undisputed Fees no later than fifteen (15) days after the invoice date. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Client is responsible for) any and all applicable sales, use, excise, customs duties, tariffs and other taxes, (other than taxes based on MX2’s income) which, if applicable, shall be paid by Client. All Fees not paid on or before the due date will bear interest at the lesser of: (i) 3.0% per month; or (b) the maximum permissible rate under applicable law, for the period from the date on which such Fees were due through the date on which such Fees are actually paid. MX2 shall have the right to suspend the Services if Client fails to pay any invoice within sixty (60) days after the invoice date.
3. Term, Termination, Effects of Termination.
3(a) Term. The Services term will be set forth in the applicable Order Form (“Services Term”). The term of this Agreement begins on the Effective Date and shall continue, with respect to any Order Form, for as long as such Order Form remains in effect (“Term”).
3(b) Termination. This Agreement (including any Order Form(s)) may be terminated by either Party if the other Party: (i) materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof from the non-breaching Party; (ii) is the subject of involuntary bankruptcy proceedings; or (iii) ceases operation without a successor.
3 (c) Effects of Termination. Upon expiration or termination of the Agreement for any reason: (a) any amounts owed to MX2 under this Agreement including any Order Form(s) prior to such termination will be immediately due and payable; and (b) MX2 reserves the right, in its sole discretion, to cease performance of the Services. If the Agreement expires or is terminated pursuant to the Agreement (or the applicable Order Form) and MX2 previously provided hosting services to Client, any cost associated with Client’s request to have MX2 transfer Client’s data to a third party hosting provider are in addition to the Fees stated in the applicable Order Form and will be billed at MX2’s then-current hourly rates (“Hosting Transfer Fee”). Unless otherwise stated in this Agreement (or the Order Form), termination is not an exclusive remedy and the exercise by either Party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
4. Client Responsibilities.
Client shall provide MX2 with all appropriate information concerning, and reasonable access to, Client’s computer systems and provide all information, access and full, good faith cooperation reasonably necessary to facilitate the Services, including one or more employees of Client who have computer systems, network, and project management experience to act as a liaison between Client and MX2. If Client fails or delays in its performance of any of the forgoing, MX2 shall be relieved of its obligations hereunder to the extent such obligations are dependent on such performance. Client agrees that MX2 is under no obligation to remediate any Client hardware failure using replacement hardware that MX2 believes, in its sole and reasonable opinion, is inadequate. Client permits MX2 to reference Client as a customer in any publicity related to MX2 and/or the Services.
MX2 hereby warrants, represents and undertakes for a period of thirty (30) days following delivery (the “Warranty Period”) that all Services will comply: (a) with the descriptions and representations described in this Agreement; (b) with the specifications in the applicable Order Form; and (c) with all applicable laws and regulations. Each Party warrants that it has the authority and power to enter into and perform, and to make all representations, warranties and grants, under this Agreement. In addition to the other warranties provided by MX2, MX2 represents and warrants it will perform the Services: (a) in a good, timely, efficient, professional and workmanlike manner; (b) using MX2 personnel who are familiar with the technology, processes, and procedures used to deliver the Services; (c) with at least the degrees of accuracy, quality, efficiency, completeness, timeliness and responsiveness as are equal to or higher than the generally accepted industry standards applicable to the performance of the same or similar services; and (d) in compliance and in accordance with the provisions of this Agreement and the applicable Order Form. MX2’s sole liability (and Client’s exclusive remedy) for any breach of the foregoing warranties shall be for MX2 to re-perform any deficient Services, or, if MX2 is unable to remedy such deficiency within thirty (30) days after receiving notice from Client, to void the applicable invoice for the deficient Services. MX2 shall have no obligation with respect to a warranty claim: (i) if notified of such claim after the Warranty Period; or (ii) if the claim is the result of third-party hardware or software, the actions of Client or some other party, or is otherwise caused by factors outside the reasonable control of MX2.
THE EXPRESS WARRANTIES IN SECTION 5 ARE THE EXCLUSIVE WARRANTIES OFFERED BY MX2 AND ALL OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY, ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY MX2, AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD. MX2 DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR completely SECURE. MX2 disclaims any liability arising out of, or relating to, Client’s use of antivirus or other security software not approved, provided by, or purchased directly from MX2 including, but not limited to, freemium antivirus software and/or security applications lacking adequate functionality to properly protect Client and its systems.
7. Unauthorized Use of Services.
Client shall be responsible for all unauthorized use of the Services by any person or entity, except as otherwise expressly set forth in this Agreement. MX2 may suspend Services to Client without liability if MX2: (i) reasonably believes the Services are being used in violation of this Agreement or applicable law; (ii) Client fails to cooperate with any reasonable investigation by MX2 of any suspected violation of this Agreement; (iii) there is a denial of service attack on Client’s servers or other event for which MX2 reasonably believes that suspension of Services is necessary to protect MX2’s network or its other Clients; or (iv) is requested by a law enforcement or a government agency. Information on our servers may be unavailable during a suspension of the Services. MX2 shall give Client written notice at least 24 hours in advance of a suspension under this Section, unless a law enforcement or government agency directs otherwise, or suspension on shorter or contemporaneous notice is necessary to protect MX2 or its other Clients from an imminent and significant risk.
The indemnification obligations set forth in this Section shall be the Parties exclusive rights and remedies with respect to this Agreement. Client shall indemnify and hold harmless MX2, its affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to: (i) the actual or alleged use of the Services in violation of this Agreement; (ii) the actual or alleged use of the Services in violation of applicable law; or (iii) any breach by Client of its obligations under this Agreement.
Each Party shall indemnify and hold harmless the other Party, the other Party’s affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s actual or alleged: (i) gross negligence; (ii) willful misconduct; or (iii) infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark or other intellectual property right. A Party seeking indemnification under this Section shall provide prompt notice of its claim for indemnification to the indemnifying Party; provided, however, that failure to give prompt notice shall not affect the indemnifying Party’s obligations under this Section unless, and to the extent, such failure materially prejudices the defense of the claim. The indemnifying Party may select counsel to defend the indemnified Party in respect of any indemnified claim under this Section; provided, however, the counsel selected must be qualified to defend the indemnified claim in the judgment of the indemnified Party, which judgment shall not be unreasonably withheld, conditioned, or delayed. The indemnified Party shall keep the indemnifying Party fully informed of the status of the claim and shall cooperate with the indemnifying Party with respect to any judicial proceeding or dispute resolution procedure. The indemnifying Party shall not settle any claim covered by this Section without the prior written consent of the indemnified Party, which consent shall not be unreasonably withheld, conditioned, or delayed. If, however, such settlement shall be only for a monetary amount covered by the indemnifying Party’s indemnification obligation under this Section and shall not impose any other liability on the indemnified Party, then, no consent shall be required from the indemnified Party. Notwithstanding anything in this Section, if MX2 is indemnifying multiple Clients related to the subject matter of the indemnification claim, MX2 shall have the right to seek consolidation of all such actions and to select counsel to defend the actions. Notwithstanding any other provision in this Section, if MX2 determines in its sole discretion that any Services may involve any product that may become subject to a claim of infringement or misappropriation, MX2 may elect to: (a) obtain the right of continued use of such product; or (b) replace or modify such product to avoid such claim. If MX2 does not elect to do so, then all applicable licenses involving the product shall terminate. This Section states MX2’s entire liability and Client’s sole and exclusive remedies for patent or copyright infringement and trade secret misappropriation.
9. LIMITATIONS ON LIABILITY.
MX2 WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGE TO BUSINESS REPUTATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF GOODWILL, LOST OPPORTUNITY, LOSS OF EARNINGS, LOST REVENUE, LOST PROFITS, LOST DATA, OR INCREASED EXPENSE OF USE THAT CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION UNDER THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF MX2 HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH LIABILITIES. MX2 IS NOT RESPONSIBLE FOR ISSUES THAT OCCUR AS A RESULT OF USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE NOT PROVIDED BY MX2. IN NO EVENT WILL THE AMOUNT CLIENT MAY RECOVER UNDER THIS AGREEMENT EXCEED THE TOTAL FEES ACTUALLY PAID TO MX2 BY CLIENT UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD immediately preceding THE DATE THAT SUCH LIABILITY FIRST ARISES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF MX2.
Each Party acknowledges that, during the Term, it will receive information from the other Party that is highly confidential and proprietary, including but not limited to information concerning such Party’s business, marketing, financials, operations, and/or the Services (“Confidential Information”). Neither Party shall, either directly or indirectly, divulge, disclose or communicate, exploit, duplicate, publish, or otherwise reveal or make available to any third party, the Confidential Information of the other, whether delivered electronically or in writing, or obtained through observation of such other Party’s business. Each Party agrees to hold Confidential Information of the other in strict confidence, exercising the same standard of care as it uses to protect its own confidential information, but no less than a commercially reasonable standard of care. Each Party agrees to the disclosure of their Confidential Information to the other Party’s employees and subcontractors solely on a “need-to-know” basis and only after the employee or subcontractor has agreed to undertake confidentiality obligations equivalent to those contained in this Agreement. The recipient of Confidential Information shall continue to maintain its obligation of confidentiality for a period of two (2) years following the expiration or termination of this Agreement. Each Party warrants it has implemented and agrees to maintain administrative, physical, and technical safeguards to protect the confidentiality and integrity of all Confidential Information received from the other Party. The following shall not be deemed to be Confidential Information for purposes of this Agreement: (a) information already lawfully known to one party at the time of disclosure by the other; (b) information generally known to the public other than as a result of disclosure in violation of this Section; (c) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information. Confidential Information may be disclosed to the extent required by court order or other legal process, provided the Party directed to disclose shall give the maximum practical advance written notice of same to the other Party, and shall use its best commercial efforts to limit the disclosure and maintain the confidentiality of such Confidential Information. In addition, the Party directed to disclose shall permit the other Party to attempt to limit such disclosure by appropriate legal means. The Parties recognize that a breach of this Section will result in irreparable harm for which monetary damages would not be adequate. In the event of such breach, and without limiting the right of a Party to seek any other remedy or relief to which it may be entitled under law, each Party agrees that the other is entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.
11. Proprietary Notices.
Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notice that appears on any software or devices provided to Client by MX2. Client shall not reverse engineer, decompile or disassemble any software or devices provided to Client by MX2.
Each Party acknowledges and agrees that the other Party retains exclusive ownership and rights in its trade secrets, inventions, copyrights and all other intellectual property of such other Party, and that MX2 shall own all right, title and interest in and to all ideas, concepts, and inventions and all intellectual property rights related thereto that MX2 may develop in the course of performing the Services. Client does not acquire any ownership interest or rights to possess any of MX2’s servers or other hardware, and has no right of physical access to the hardware.
13. CLIENT DATA.
Client retains all rights in any data, or information that Client provides to MX2 as part of the Services (“Client Data”). Client shall have sole responsibility for the accuracy, reliability, appropriateness, ownership, and right to use Client Data. MX2 will not engage any third party to process Confidential Information under this Agreement without: (i) a contractual relationship with such third party which includes equivalent information security controls, data privacy and confidentiality requirements as those set forth under this Agreement; (ii) performing and documenting a risk analysis to ensure that the processing of Confidential Information by such third party will not compromise MX2’s obligations under applicable laws; and (iii) performing a privacy and information security due-diligence assessment of such third party’s privacy and security practices to ensure compliance with the requirements set forth in this Agreement. MX2’s obligation to retain Client Data expires at the end of the Term. Within thirty (30) days of the end of the Term and upon written request from Client, MX2 will provide Client Data in a .csv file or other mutually agreed upon file format.
Client shall not solicit or hire any MX2 employee to become an employee of, or consultant to, Client for the Term and for a period of one (1) year following the expiration or the termination of this Agreement.
Independent Contractors. The Parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
Force Majeure. Each Party will be excused from any delay or failure in performance hereunder (except for a failure to pay Fees) caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquakes, labor disputes, strikes, riots, war and governmental requirements (each a “Force Majeure Event”). The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay, insofar as: (i) such event prevents or delays the affected Party from fulfilling its obligations; and (ii) such Party is not able to prevent or remove the Force Majeure Event at a reasonable cost
Acceptance. The Services shall be deemed accepted upon receipt by Client.
Assignment. Neither Party will assign its rights or obligations under this Agreement (in whole or in part) without the other Party’s prior written consent. This Agreement may be assigned by MX2 without Client’s prior written consent pursuant to a merger, consolidation, or a sale of all or substantially all of the assets of MX2. Any purported assignment, transfer, or delegation in violation of this section shall be void.
Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to California conflict of laws rules The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to this Agreement shall be the state or federal courts located in Santa Clara County, California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens, or otherwise) to the exercise of such jurisdiction over it by any such courts. Except for a claim of payments of amounts due, no action, regardless of form, arising out of this Agreement may be brought by either Party against the other more than one (1) year after the cause of action has arisen.
Waiver. All modifications to or waivers of any terms of this Agreement must be in a writing signed by the Parties hereto and expressly reference this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction; (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
Entire Agreement. This Agreement includes any applicable Order Form(s) and any Services descriptions attached thereto. Collectively, the foregoing constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by MX2. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by both Client and MX2.
No Third Party Beneficiary. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and its successors and assigns. No other person or entity is an intended third party beneficiary of, or shall be deemed to be a third party beneficiary of, any of the terms and conditions of this Agreement.
Survival. The following Sections of this Agreement shall survive any termination or the expiration of this Agreement: Sections 2, 6, 7, 8, 9, 10, 11, 12, 14, and 15.
Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any part thereof.
Counterparts. This Agreement may be executed in counterparts, and each counterpart shall be deemed an original, and all such counterparts together shall constitute but one agreement.
Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier, or by certified or registered mail, (postage prepaid and return receipt requested) to the other Party at its main corporate headquarters.