MASTER SUBSCRIPTION AGREEMENT
Last Update: 05/25/2022
MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement” or “MSA,” as the same may be amended from time to time by MaverickApp, LLC in its sole and absolute discretion) is entered into by and between by MaverickApp, LLC, a New Hampshire limited liability company with a registered agent address at 41 Brook Street Manchester, New Hampshire 03104 (“MaverickApp,” “We,” “Us,” “Our”) and the party accepting this Agreement or any other agreement referencing this MSA (“Client,” “You,” “Your”) (each a “Party” and collectively, the “Parties”), and constitutes a binding agreement among the Parties.
By entering into this Agreement, You agree that the provision and receipt of the Services, as the same is discussed and defined herein, are expressly conditioned upon the acceptance of the terms of this and any other incorporated Agreement.
This Agreement shall take effect when: (i) You begin using the Services (“Effective Date”).
WHEREAS, MaverickApp is in the business of providing application services and innovative Customer Relationship Management (“CRM”) solutions, including sales automation as a service; and
WHEREAS, Client desires to engage MaverickApp to perform the Services; and
WHEREAS, the Parties agree that this Agreement shall apply to and govern the provision and receipt of the Services.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the Parties have agreed to do as follows:
- Authority to Enter into this Agreement. If You are entering into this Agreement on behalf of a company, organization or other legal entity (collectively, an “Entity”), You are agreeing to this MSA for that Entity and representing to MaverickApp that You have the authority to bind the Entity and its affiliates to the terms of this Agreement, in which case the terms “Client,” “You,” “Your,” and any related capitalized terms herein, shall refer to the Entity.
- Purpose. The purpose of this Agreement is to establish the terms and conditions of Client’s purchase and MaverickApp’s performance of the Services, as the same are described and defined in this Agreement. This Agreement constitutes the entire agreement between Client and MaverickApp regarding the Services and supersedes all prior agreements, understandings, statements, proposals and representations, whether written or oral, between the Parties.
- The Services.
3.1. Prerequisites to Receiving the Services. Client understands and agrees that Client is responsible for obtaining any and all hardware, software, subscriptions and/or relevant services necessary for MaverickApp to perform the Services (“Prerequisites”), should such Prerequisites be required for use of the Services.
3.2. Provision of Services. MaverickApp will provide to Client the Services pursuant to this Agreement as follows:
(a) Client and MaverickApp agree that each will designate a representative to interface and facilitate the successful completion of the Services (hereinafter, “Client’s Representative” and “MaverickApp’s Representative,” respectfully).
(b) MaverickApp will provide the Services directly, and not through a subcontractor. Client agrees to provide, at no cost to MaverickApp, timely and adequate assistance and other resources reasonably requested by MaverickApp to enable the provision of Services (collectively, “Assistance”). MaverickApp shall not be liable for any deficiency in the provision of the Services resulting from any acts or omissions of Client, including, but not limited to, Client’s failure to provide Assistance as required hereunder.
(c) In its provision of the Services, MaverickApp will provide such resources, and utilize such qualified MaverickApp personnel (“Personnel”), as it deems necessary to perform the Services or any portion thereof. Client may object to MaverickApp’s election of Personnel by specifying its objection to MaverickApp, in which case the Parties will cooperate in good faith to appoint different Personnel to perform the Services. MaverickApp may replace Personnel in its normal course of business, provided that MaverickApp will be responsible for the provision of the Services by all Personnel.
(d) MaverickApp will control the method and manner of performing all work necessary for completion of Services, including but not limited to the supervision and control of any Personnel performing the Services. MaverickApp will maintain such number of qualified Personnel and other resources needed to perform MaverickApp’s obligations under this Agreement in accordance with its terms.
(e) MaverickApp may enter Client’s accounts as needed to provide the Services.
(f) This Agreement does not grant any license to any of MaverickApp’s software, programs, products or the like (including, without limitation, the Services), except as specifically provided pursuant to and in accordance with Section 11.3.
- Payment Terms.
4.1. Fees, Billing and Payment. Client will pay MaverickApp subscription fees to provide the Services (“Fees”). Fees are due and payable upon the commencement of Your Subscription Term and in accordance with your Subscription. If You fail to pay your Subscription Fees within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update your payment information upon our request, in addition to Our other remedies, We may suspend or terminate Your access to and use of the Services.
4.2. Taxes. Our Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying Taxes, except those assessable against MaverickApp measured by its net income. You shall pay, reimburse, and/or hold MaverickApp harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated except income taxes, which are levied or imposed by reason of the performance of the professional services under this Agreement, except income taxes.
4.3. Other Costs. Unless otherwise provided in this Agreement, all other services rendered by MaverickApp shall be subject to additional compensation under a separate agreement between MaverickApp and Client.
4.4. Payment Processing. Payments made by credit card, debit card or certain other payment instruments for the Services are processed by a third-party service provider (“Payment Agent”). The Payment Agent is acting solely as a billing and processing agent for and on behalf of MaverickApp and shall not be construed to be providing the applicable Services. You hereby authorize the Payment Agent to bill your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of your Subscription until your Subscription to the Services terminates. You agree to promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
- Term and Termination.
5.1. Term of Service. The Services are based on twelve (12)-month-month term. This duration factors the amount of time necessary to implement the Services in their entirety and achieve notable results. Unless notified by Client within thirty (30) days of the end of any Term of Service, the Services shall be automatically renewed for additional twelve (12)-month terms.
5.2. Term of Agreement. The term of this Agreement shall be from its Execution date through the expiration or termination of Services provided to Client.
5.3. Termination. This Agreement may be terminated by either Party with or without cause upon no less than thirty (30) days advance written notice to the other Party. Because the Terms of this Agreement are intended to be a minimum of twelve (12)-month-month terms, early termination shall be subject to the terms and conditions of Section 7 below.
5.4. Termination for Breach. Either Party may terminate this Agreement if the other Party materially breaches its obligations under this Agreement, provided the terminating Party has provided notice of such breach to the other Party and an opportunity to cure such breach during a period of not less than thirty (30) days following such notice.
5.5. Effect of Termination. Upon termination of this Agreement, MaverickApp will immediately cease providing the Services, and Client will pay MaverickApp any fees not yet paid for all Services provided pursuant to Client’s Subscription (or on such other basis as the Parties will mutually agree). This Section 5.5 is in addition to and subject to Section 6, “Early Termination,” below.
5.6. Surviving Provisions. Any terms of this Agreement that by their nature are intended survive any termination or expiration of this Agreement shall survive.
- Early Termination.
(a) Client acknowledges that the amount of the fee for the Services, which is invoiced and to be paid monthly, is based on the total Term of Service. As such, there is a twelve (12)-month-month minimum fee requirement for early termination by Client without cause.
(b) If early termination by Client without cause occurs after the first twelve (12)-month-month Term of Service, Client is also responsible for the months of Service at the time of notice and the time the Service is discontinued.
- Relationship of the Parties. The relationship of MaverickApp and Client established by this Agreement is solely that of independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, association, franchise, employment or agency relationship between the Parties. Neither Party will have the power to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
- Client Responsibilities.
8.1. Cooperation. Client shall cooperate and have shared responsibility with MaverickApp as reasonably necessary for the performance and/or provision of Services. These shared responsibilities may include, but are not limited to: (a) providing MaverickApp with access to applicable and necessary software, work space, office support, usernames, passwords, internet connections, etc.; (b) ensuring that Client has obtained connection to and all necessary permissions or consents from any public or private network to which the products, platforms, etc. are connected; (c) providing MaverickApp with designated points of contact; (d) providing the minimum privileged account access level and password necessary to enable access to the products, platforms, etc.; (e) notifying MaverickApp promptly of any changes made to such usernames or passwords; and (f) promptly disabling privileged account access when no longer needed. Client is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and regularly backing up its data and files in accordance with good computing practices. All items to be provided by Client are to be provided at Client’s expense.
- Third-Party Services.
(a) MaverickApp’s performance of the Services includes the use and implementation of certain third-party services, software, programs, coding, platforms and the like (“Third-Party Services”). Client acknowledges that its use of the Services, and therefore the Third-Party Services, is governed by the applicable third party’s terms and conditions and privacy policies.
(b) Client agrees and acknowledges that certain features of the Services depend on the use and continuing availability of Third-Party Services. If the providers of said Third-Party Services cease to make their services or programs available on reasonable terms, MaverickApp may cease providing any affected features or services without entitling Client to any refund, credit, or other compensation.
(c) If Client enables, installs, connects, or provides access to any Third-Party Services for use with the Services, Client:
- acknowledges and agrees that access and use of such Third-Party Services are governed solely by the terms and conditions of such Third-Party Services, and MaverickApp does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third-Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Client Content) or any interaction between Client and the provider of such Third-Party Services;
- acknowledges and agrees that MaverickApp does not guarantee the continued availability of such Third-Party Service features, and may cease enabling access to them without entitling Client to any refund, credit, or other compensation, if, for example and without limitation, the provider of a Third-Party Service ceases to make the Third-Party Service available for interoperation with the corresponding Services in a manner acceptable to MaverickApp;
iii. hereby permits the transmission of and access to Client Content to such Third-Party Services;
- grants to MaverickApp a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable right and license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of any data transmitted to or obtained by MaverickApp from any Third-Party Service enabled, installed, or connected to the Services by Client and represents and warrants that doing do so will not violate laws or any third party’s privacy, intellectual property, or other rights;
- agrees that MaverickApp is not liable for: (a) damage or loss caused or alleged to be caused by or in connection with Client’s enablement, access, or use of any Third-Party Services; or (b) Client’s reliance on the privacy, data security, or other practices of such Third-Party Services;
- irrevocably waives any claim against MaverickApp with respect to such Third-Party Services; and
vii. agrees to comply with any requests by MaverickApp to remove any connections to or from other websites and/or applications to the services which Client installs.
- Proprietary Property.
10.1. Ownership. Each Party acknowledges and agrees that the respective Parties each retain exclusive ownership and rights in its respective trade secrets, inventions, copyrights and all other intellectual property.
10.2. Intellectual Property Rights. Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to Client to use the Services under this Agreement do not convey any additional rights in the Services or in any Intellectual Property Rights associated therewith. All rights, title and interest in and to the Services and all hardware, software, code and other components of or used to provide the Services by MaverickApp and belonging to MaverickApp, including all related Intellectual Property Rights, will remain with MaverickApp and belong exclusively to MaverickApp. MaverickApp shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback MaverickApp receives from Client, or other third parties acting on Client’s behalf. MaverickApp’s products, service names and logos used or displayed in or on the Services are registered or unregistered trademarks (collectively, “Marks”) of one or more members of MaverickApp, LLC or its parent organization, Heretic Technology Group, LLC (collectively, “Services Provider”), and Client may only use such Marks in a manner permitted by Services Provider and only to the extent that Client does not attempt, at any time, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Services Provider, MaverickApp, its Services, or its provision thereof.
10.3. Work Made for Hire. The Parties hereby agree that the Services primarily involve the configuration of Client’s (“CRM”) subscription, program, software, platform, etc. and integration of Client data with and into the CRM using pre-existing technology, developed technology, and/or generic components (each as defined below). The work product provided by MaverickApp in connection with the Services provided pursuant to this Agreement (“Deliverable”) shall constitute a “Work Made for Hire” under this Agreement. In the event that any such Deliverable is held to be a Work Made for Hire, Client hereby assigns to MaverickApp all right title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to MaverickApp a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such Deliverable. Additionally, MaverickApp shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the pre-existing technology, developed technology, and/or generic components or otherwise use any suggestions, enhancement requests, recommendations or other feedback MaverickApp receives from Client.
10.4. MaverickApp Technology. Without limiting the foregoing, MaverickApp reserves and retains ownership to all preexisting technology, developed technology, code and generic components (each as defined below), and MaverickApp hereby grants to Client a non-exclusive, fully paid, limited license to use preexisting technology, developed technology and generic components solely in connection with Client’s use of the Services.
(a) For purposes of this Agreement, “Preexisting Technology” shall mean any and all MaverickApp inventions (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information, tools, processes and procedures, as developed by MaverickApp and in existence prior to the commencement of providing the Services.
(b) For purposes of this Agreement, “Developed Technology” shall mean ideas (whether or not patentable), know-how, technical data, techniques, concepts, information, tools, processes and procedures, and all associated intellectual property rights therein developed by MaverickApp in connection with providing Services pursuant to this Agreement that derive from, improve, enhance or modify MaverickApp’s Preexisting Technology.
(c) For purposes of this Agreement, “Generic Components” shall mean all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by MaverickApp in connection with providing the Services and implemented or utilized generally to support MaverickApp’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Client’s Confidential Information, as the term is so defined in Section 14 below.
(d) For purposes of this Agreement, Preexisting Technology, Developed Technology, and Generic Components shall collectively be referred to “MaverickApp Technology.”
10.5. Custom Work. In the course of providing the Services, MaverickApp may create custom work for Client that incorporates, embeds, or integrates MaverickApp Technology. Other than any MaverickApp Technology incorporated, embedded, or integrated into the custom work, Client owns all right title and interest in said custom work. MaverickApp grants to Client for the duration of this Agreement a worldwide, non-exclusive license to use the MaverickApp Technology solely in connection with an unmodified version of the custom work. Client will not, nor allow any employee or third party, copy, reverse-engineer, modify, improve, create derivative works of or use MaverickApp Technology in any way outside of any such custom work as delivered by MaverickApp to Client. In the event that any Client employee or third party at Client’s request or direction modifies, improves or creates derivative works of MaverickApp Technology, whether or not in violation of this Agreement, Client agrees that all right, title and interest in and to such modifications, improvements and/or derivative works shall be immediately assigned to MaverickApp.
10.6. Reverse Engineering. In no event shall Client use MaverickApp’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of MaverickApp.
- Insurance. MaverickApp shall procure and maintain for itself and its Personnel all insurance coverages required by Federal and State law, including workers’ compensation insurance. MaverickApp shall further insure against all losses and damages, which arise directly or indirectly out of or are in any way associated with the fault or negligence, actions or inactions, of its Personnel in the provision of the Services pursuant to this Agreement.
- Representations and Warranties.
12.1. Reciprocal. MaverickApp represents and warrants to Client, and Client represents and warrants to MaverickApp, that: (i) it has the power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of this Agreement; and (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under any agreement to which either is a Party.
12.2. Client. Client represents and warrants to MaverickApp that: (i) the information Client has provided to MaverickApp for the purpose of establishing an account with MaverickApp is accurate; (ii) Client will not use the Services in violation of any federal, state or other law, rule or regulation; and (iii) Client shall not reverse engineer, resell or otherwise make available any of the Services to any other person or entity.
- Confidentiality. This Section sets out the terms for identification of information which is considered confidential and proprietary by a party:
13.1. Confidential Information. The term “Confidential Information” means any and all proprietary or confidential information that is disclosed to the receiving party (“Recipient”) by the disclosing party (“Discloser”), and includes, among other things: (a) any and all information relating to products or services provided by Discloser, its client-related and financial information, development and marketing plans, strategies, forecasts, and sales and marketing materials; (b) the Services; and (c) the terms of this Agreement. Confidential Information does not include information that: (i) was rightfully in Recipient’s possession without any obligation of confidentiality prior to receiving such information from the Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) is rightfully received by Recipient from a third party without violating a duty of confidentiality; or (iv) is or was independently developed by or for Recipient.
13.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Discloser, the Parties agree that the Recipient will: (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and use Discloser’s Confidential Information only for purposes of this Agreement, and (b) Recipient will limit access to Confidential Information of Discloser to those of its employees, agents, consultants or otherwise who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. In addition to the foregoing, Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to and consistent with those herein.
13.3. Non-Disclosure by Client. Client agrees that it will not disclose MaverickApp’s Confidential Information to any third party at any time without the prior written consent of MaverickApp and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, consultants or otherwise. Further, MaverickApp’s Confidential Information shall include the terms set forth in this Agreement, all of which shall remain the property of MaverickApp and shall in no event be transferred, conveyed, or assigned to Client as a result of MaverickApp providing the Services pursuant to this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.
13.4. Non-Disclosure by MaverickApp. MaverickApp agrees: (i) that it will not use any of Client’s Confidential Information for its own use or for any purpose other than the specific purpose of providing the Services; (ii) that it will not voluntarily disclose any of Client’s Confidential Information to any other person or entity; and (iii) that it will take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Client’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such Confidential Information. The foregoing duty shall survive any termination or expiration of this Agreement.
13.5. Agreement. The Parties agree that MaverickApp and Client shall consider and treat the terms of this Agreement as Confidential Information.
- Non-Solicitation. The Parties each agree not to knowingly solicit for employment, employ (either as an employee, agent or independent contractor) or otherwise contract with any employee, agent or independent contractor of the other Party during the provision of the Services or Term of this Agreement and for a period of one (1) year after termination of this Agreement without the other Party’s prior written consent.
- Warranties and Disclaimers.
15.1. Warranty of Services. MaverickApp warrants that all Services provided pursuant to this Agreement shall be performed: (a) in a professional and workmanlike manner; and (b) in accordance with the general standards and practices of the information technology industry in existence at the time the Services are being provided. THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.
15.2. Disclaimer. Notwithstanding the foregoing, the Parties hereby agree as follows:
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 16, MAVERICKAPP EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-SATISFACTORY QUALITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.
(b) CUSTOMIZED DELIVERABLES; MAVERICKAPP PROCESSES AND METHODOLOGIES; INTEGRATIONS; APPLICATION PROGRAMMING INTERFACES; THIRD-PARTY PROGRAMS; AND PROGRAMMING SCRIPTS, THAT ARE IDENTIFIED AND BEING DELIVERED UNDER, PURSUANT TO AND IN ACCORANCE WITH THIS AGREEMENT (COLLECTIVELY, “CUSTOMIZED DELIVERABLE”) ARE PROVIDED TO CLIENT “AS IS” AND MAVERICKAPP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO CLIENT OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLE. MAVERICKAPP SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLE DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT CLIENT MODIFIES ANY CUSTOMIZED DELIVERABLE IN A MANNER NOT INSTRUCTED BY MAVERICKAPP OR SERVICES PROVIDERS. MAVERICKAPP DOES NOT WARRANT THAT CLIENT’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLE SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. MAVERICKAPP EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLE, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY MAVERICKAPP UNDER THIS AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO CLIENT AND ANY THIRD-PARTY USE OF THE SERVICES.
(c) THESE DISCLAIMERS AND EXCLUSIONS WILL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
- Limitation of Liability.
(a) SUBJECT TO SECTION 17(D) BELOW, IN NO EVENT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY THE OTHER PARTY OR SUCH THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
(b) EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY OF THE SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MAVERICKAPP WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MAVERICKAPP HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CLIENT THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
(c) Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE JURISDICTIONS, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
(d) The limitations set forth in Sections 17(a), (b) and (c) above shall not apply with respect to: (i) damages to person and/or tangible property occasioned by the willful misconduct or gross negligence of a Party; (ii) claims that are the subject of indemnification pursuant to Section 18 below; and/or (iii) either Party’s breach or alleged breach of its confidentiality obligations under Section 14 above.
17.1. General Indemnification. Client shall, at all times, defend, indemnify and hold MaverickApp harmless against and from all claims, losses, liability, expenses, lawsuits or damages (including attorneys’ fees and court costs) that may arise against MaverickApp in connection with its provision of the Services to Client. Client’s agreement to defend, indemnify and hold MaverickApp harmless includes, but is not limited to, all claims against MaverickApp for personal injury (including death), damage to property of Client or others, or any other claim arising in tort, under contract, or in violation of law.
17.2. MaverickApp’s Indemnification of Client. MaverickApp will indemnify and hold Client harmless from and against any claim against Client alleging that any Work Made for Hire (as defined herein) infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). MaverickApp will, at its expense, defend such IP Claim and pay damages finally awarded against Client in connection therewith, including the reasonable fees and expenses of the attorneys engaged by MaverickApp for such defense, provided that: (a) Client promptly notifies MaverickApp of the threat or notice of such IP Claim; (b) MaverickApp will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) Client fully cooperates with MaverickApp in connection therewith. MaverickApp will have no liability or obligation under this Section 18 with respect to any IP Claim if such claim is caused in whole or in part by: (i) compliance with designs, data, instructions or specifications provided by Client; (ii) modification of the Work Made for Hire by anyone other than MaverickApp; or (iii) the combination, operation or use of the Work Made for Hire with other hardware or software where the Work Made for Hire would not by itself be infringing.
17.3. Client’s Indemnification of MaverickApp. Client will indemnify and hold MaverickApp harmless from and against any claim against MaverickApp arising from or related to Client’s breach of this Agreement, provided that (a) MaverickApp promptly notifies Client of the threat or notice of such claim; (b) Client will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such MaverickApp Indemnity Claim; and (c) MaverickApp fully cooperates with Client in connection therewith. Client will have no liability or obligation under this Section 18 with respect to any MaverickApp Indemnity Claim to the extent such MaverickApp Indemnity Claim is caused by Client’s use of any deliverable provided by MaverickApp in compliance with instructions provided by MaverickApp.
- Notice. All notices to Client will be effective when MaverickApp posts them to Client’s Account or sends them to the mailing address or email address associated with Client’s account. All notices to MaverickApp shall be given in writing and shall be deemed effective when delivered, or five (5) days after the date sent by registered or certified mail, postage prepaid, to MaverickApp at the following address:
C/O Mesmer & Deleault, PLLC
41 Brook Street
Manchester, NH 03104
or any addresses as MaverickApp may later post on its website from time to time.
19.1. Headers. Section headers are for reference only and shall not affect the meaning or interpretation of this Agreement.
19.2. No Conflicts. The Parties acknowledge and agree that each Party has the power and the authority to enter into this Agreement and to perform its obligations hereunder and have not entered into any other agreements that would conflict with the Services to be performed herein and, upon execution and delivery hereof, this Agreement shall constitute the valid and binding obligations of the Parties, enforceable in accordance with its terms.
19.3. Force Majeure. Either Party’s performance will be excused, if and to the extent reasonably necessary, in the event that an act of God, war, civil commotion, terrorism, fire, explosion, or other force majeure event that occurs without the fault or negligence of the non-performing Party and prevents timely performance under the Agreement.
19.4. Waiver. The failure of either Party to exercise any of its rights under the Agreement shall not be deemed to be a waiver of such rights.
19.5. Conflict Resolution. Any conflict that may arise between MaverickApp and Client which might require mediation, arbitration, litigation, etc. shall occur in or about Hillsborough County, New Hampshire. Client agrees that this is for the convenience of MaverickApp and acknowledges that their place of business or where the nature of the relationship occurred has no bearing on the agreed location for conflict resolution.
19.6. Governing Law; Jurisdiction.
19.6.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New Hampshire without regard to principles of conflicts of laws. The Parties hereby agree to submit to the jurisdiction of the state and/or federal courts in the County of Hillsborough, State of New Hampshire, U.S.A.
19.6.2. Jurisdiction. With respect to any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any non-contractual obligations arising out of or in connection with it (“Proceedings”), each Party irrevocably:
(a) submits to the exclusive jurisdiction of the courts of the State of New Hampshire and the United States District Court located in Concord, New Hampshire; and
(b) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such Party.
19.7. Remedies. Money damages would not be a sufficient remedy for a breach of certain of Client’s obligations under this Agreement. In addition to any other remedies that might otherwise be available to us at law or in equity, we may seek and obtain specific performance and injunctive relief against the commission or continuation of any such breach or any anticipatory breach of this Agreement by Client, without bond.
19.8. Mutual Limited Publicity. While this Agreement is in effect, either Party may include the name and logo of the other Party in promotional materials (including on its website) for clients, customers and/or vendors in accordance with the other Party’s standard logo and/or trademark usage guidelines. Except as set forth herein, neither Party may use the trademarks and trade names of the other Party without the prior written consent of the other Party.
19.9. Assignment. This Agreement may not be assigned by Client without the prior written consent of MaverickApp. Any purported assignment in violation of this section shall be void.
19.10. Successors and Assigns. This agreement is binding upon, and inures to the benefit of, the Parties and their respective successors and assigns.
19.11. Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
19.12. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall remain valid and unimpaired, and shall continue in full force and effect.
19.13. Amendment. This Agreement may only be amended, modified or waived in writing signed by a duly authorized representative of the parties. No waiver of any provision of this Agreement shall be effective unless signed on behalf of the waiving party by a signatory with authority to amend or modify this Agreement in accordance with the preceding sentence.
19.14. Non-Exclusivity. Client hereby acknowledges and agrees that nothing in this Agreement shall prohibit MaverickApp from providing to other companies, services similar to those provided to Client, or from otherwise engaging in MaverickApp’s routine business activities.
19.15. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all other agreements, whether oral or in writing, between the Parties with respect to the matters stated herein.