Terms of Service
THE ORDER FORM(S) OF M3D EXPERIENCES, INC. (“M3D“) D/B/A MEMORA AND THESE TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT“) SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER IDENTIFIED IN THE ORDER FORM (“CUSTOMER“) AND M3D CONCERNING CUSTOMER’S USE OF THE SERVICES. THIS AGREEMENT IS EFFECTIVE AS OF JULY 9, 2019 (THE “EFFECTIVE DATE”). BY ORDERING OR OTHERWISE USING THE SERVICES, CUSTOMER AGREES TO AND ACCEPTS THIS AGREEMENT. CUSTOMER MAY USE THE SERVICES ONLY IN ACCORDANCE WITH THIS AGREEMENT. CUSTOMER’S PURCHASE ORDERS (EVEN IF SIGNED OR ACKNOWLEDGED BY M3D) SHALL NOT MODIFY OR AMEND THIS AGREEMENT.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 51% of the voting securities of a Person.
“Agreement” has the meaning set forth in the preamble.
“Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement “Confidential Information” has the meaning set forth in Section 12.
“Customer” has the meaning set forth in the preamble.
“Customer Data and Content” means information, data, and other content, such as text, images, videos, and templates, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data and Content does not include Resultant Data.
“Customer Indemnitee” has the meaning set forth in Section 16.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, televisions or monitors, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third‐party services.
“Disclosing Party” has the meaning set forth in Section 12.
“Documentation” means any manuals, instructions, or other documents or materials that the M3D provides or makes available to Customer, from time to time, in any form or medium and which describe the functionality, components, features, or requirements of the Services or M3D Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“Force Majeure Event” has the meaning set forth in Section 18.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or M3D Systems as intended by this Agreement. Harmful Code does not include any M3D Disabling Device.
“Initial Term” has the meaning set forth in Section 17.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“M3D” has the meaning set forth in the preamble.
“M3D Content” means any text, images, video, templates, or other content or materials that the M3D provides or makes available to Customer, from time to time, in any form or medium and which may be used with the Services for the purpose of making, providing, performing, advertising, promoting, marketing, selling, and otherwise commercializing the same through the Service, including the right to, during the Term: (a) modify, edit, combine with other materials (including, but not limited to, in combination or conjunction with Customer Data and Content), translate, include in collective works, and create derivative works of the M3D Content in whole or in part; and (b) reproduce, perform (publicly or otherwise), display (publicly or otherwise) and transmit the M3D Content, in whole or in part, as provided by M3D or as so adapted or modified for such purposes and uses as are permitted under this Agreement.
“M3D Materials” means the Services, Specifications, Documentation, M3D Content and M3D Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any technical or functional descriptions, requirements, plans, or reports, that are provided by M3D or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or M3D Systems. For the avoidance of doubt, M3D Materials include Resultant Data
but do not include Customer Data and Content or materials combined, used, or created with Customer Data and Content.
“M3D Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of M3D or any Subcontractor.
“M3D Systems” means the information technology infrastructure used by or on behalf of M3D in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by M3D or through the use of third‐party services.
“Order Form(s)” means forms from M3D evidencing the initial order for the Services, and any subsequent forms from M3D (submitted in written form or online), specifying, among other things, the number of authorized users, the initial term, the applicable fees, implementation services, professional services, changes to the Services, and such other charges and terms as agreed between the parties. Order Forms shall only be effective and included with the Agreement once signed by an authorized Representative of each party.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted, or located.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means data and information related to Customer’s use of the Services that is used by M3D in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Scheduled Downtime” has the meaning set forth in Section 10.
“Services” means M3Ds software‐as‐a‐service digital signage platform as described in the Documentation.
“Specifications” means the specifications for the Services set forth in the Documentation.
“Subcontractor” has the meaning set forth in Section 6.
“Support Services” has the meaning set forth in Section 10.
“Term” has the meaning set forth in Section 17.
“Third‐Party Materials” means materials and information, in any form or medium, including any open‐ source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to M3D.
Documentation and M3D Content License. M3D hereby grants to Customer a non‐ exclusive, royalty‐ free, perpetual, irrevocable, transferable, sublicenseable license to use the Documentation and M3D Content during the Term solely for Customer’s internal business purposes in connection with its use of the Services as provided in this Agreement.
Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
M3D has and will retain sole control over the operation, provision, maintenance, and management of the M3D Materials; and
Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the M3D Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or M3D; (ii) results obtained from any use of the Services or M3D Materials; and (iii) conclusions, decisions, or actions based on such use.
3. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, M3D Materials, or Third‐Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the M3D Materials (except those M3D Materials combined, used, or created with Customer Data and Content), and the Third‐Party Materials are and will remain with M3D and the respective rights holders in the Third‐Party Materials.
4. Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day‐to‐day communications, consultation, and decision‐making regarding this Agreement. Each service manager shall be responsible for providing all day‐ to‐day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The parties’ initial service managers are set forth in the initial Order Form. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
5. Changes. M3D reserves the right, in its sole discretion, to make any changes to the Services and M3D Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of M3D’s services to its customers; (ii) the competitive strength of or market for M3D’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in an Order Form. No requested changes will be effective unless and until memorialized in an Order Form.
6. Subcontractors. M3D may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“). M3D agrees to be liable for any breach of this Agreement by one of its Subcontractors.
7. Suspension or Termination of Services. M3D may, directly or indirectly, and by use of a M3D Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or M3D Materials, without incurring any resulting obligation or liability, if: (a) M3D receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires M3D to do so; or (b) M3D believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 7 does not limit any of M3D’s other rights or remedies, whether at law, in equity, or under this Agreement.
8. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or M3D Materials except as expressly permitted by this Agreement and, in the case of Third‐Party Materials, the applicable third‐party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or M3D Materials to any Person (except to such Person’s Affiliates), including on or in connection with the internet or any time‐sharing, service bureau, software as a service, cloud, or other technology or service;
reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or M3D Materials, in whole or in part;
bypass or breach any security device or protection used by the Services or M3D Materials or access or use the Services or M3D Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
input, upload, transmit, or otherwise provide to or through the Services or M3D Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, M3D Systems, or M3D’s provision of services to any third party, in whole or in part;
remove, delete, alter, or obscure any trademarks, Specifications, Documentation, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or M3D Materials, including any copy thereof;
access or use the Services or M3D Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
access or use the Services or M3D Materials for purposes of competitive analysis of the Services or M3D Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the M3D’s detriment or commercial disadvantage.
9. Customer Obligations.
Non‐Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly solicit (other than by general advertisement not directed specifically to any individual) for employment or engagement as an independent contractor any individual then employed by M3D and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 9, M3D will be entitled to a fee equal to the compensation paid by M3D to the applicable employee or contractor during the prior three (3) months.
10. Schedule Downtime; Support Services.
Scheduled Downtime. M3D will use commercially reasonable efforts to: (a) schedule downtime for
routine maintenance of the Services between the hours of 1:00 a.m. and 5:00 a.m., Eastern Time on weekends; and (b) give Customer at least twenty‐four (24) hours prior notice of all scheduled outages of the Services (“ScheduledDowntime“).
Service Support. The Services include M3D’s standard customer administrative support services (“Support Services“) at the support levels Customer purchases in accordance with the M3D service support schedule then in effect.
Customer Control and Responsibility. Customer has and will retain sole responsibility for:
(a) all Customer Data and Content, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services;
(c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third‐party services (“Customer Systems“); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and M3D Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data and Content, including the uploading or other provision of Customer Data and Content for processing by the Services.
11. Fees and Payment.
Fees. Customer shall pay M3D the fees set forth in the Order Form(s) (“Fees“) in
accordance with this Section 11.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on M3D’s income.
No Deductions or Setoffs. All amounts agreed upon in writing and payable to M3D under this Agreement shall be paid by Customer to M3D in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
Fee Increases. M3D may increase Fees no more than once annually for any contract year by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that contract year.
Confidential Information. In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s patents, patent applications, target molecules, biological targets, research and development, commercialization plans, technology, know‐ how, business operations, plans, strategies, customers, procurement requirements, organizational data, personnel information, and pricing, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all M3D Materials (other than M3D Content and such other aspects of the Services which may be publicly displayed or performed in accordance with the Services or M3D Materials that are combined, used, or created with Customer Data and Content) are the Confidential Information of M3D and the financial terms of this Agreement are the Confidential Information of each of the parties.
Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written, contemporaneous documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non‐confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written, contemporaneous documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with thisAgreement;
except as may be permitted by and subject to its compliance with Section 12, a party may not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 12; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 12;
safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps with Disclosing Party to prevent further unauthorized use or disclosure; and
ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ (including the Representative of its Affiliates) non‐compliance with, the terms of this Section 12.
Each party’s obligation of confidentiality will continue during the term and for a period of five (5) years after the expiration or termination of this Agreement
Each party agrees that any violation or threatened violation of this Section 12 may cause irreparable injury to the other party, entitling that party to obtain injunctive relief in addition to all legal remedies.
Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 13; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 13, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Intellectual Property Rights.
M3D Materials. All right, title, and interest in and to the M3D Materials (except those M3D materials
combined, used, or created with Customer Data and Content), including all Intellectual Property Rights therein, are and will remain with M3D and, with respect to Third‐Party Materials, the applicable third‐ party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third‐Party Materials. Customer has no right, license, or authorization with respect to any of the M3D Materials (except those M3D materials combined, used, created with Customer Data and Content)
except as expressly set forth in Section 2 or the applicable third‐party license, in each case subject to Section 2. All other rights in and to the M3D Materials (except those M3D materials combined, used, or created with Customer Data and Content) are expressly reserved by M3D. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to M3D an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
Customer Data and Content. As between Customer and M3D, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data and Content, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 3.
Consent to Use Customer Data and Content. During the term of this Agreement, Customer hereby grants all such rights and permissions in or relating to Customer Data and Content as are necessary or useful to M3D, its Subcontractors, and the M3D Personnel to enforce this Agreement and exercise M3D’s, its Subcontractors’, and the M3D Personnel’s rights and perform M3D’s, its Subcontractors’, and the M3D Personnel’s obligations hereunder.
15. Representations and Warranties.
Mutual Representations and Warranties. Each party represents and warrants to the other party that:
it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 15, ALL SERVICES AND M3D MATERIALS ARE PROVIDED “AS IS.” M3D SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, M3D MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR M3D MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD‐PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD‐PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD‐PARTY OWNER OR DISTRIBUTOR OF THE THIRD‐PARTY MATERIALS.
M3D represents and warrants that the Services, M3D Materials, M3D Content, M3D Systems, Documentation, Specifications, and deliverables do not infringe the intellectual property rights of any third party.
M3D agrees to indemnify, defend and hold harmless Customer, and its directors, officers and employees (collectively, “Customer Indemnitees”) for any liability, demand, damage, cost or expense (including reasonable attorney’s fees) arising from any third‐party claim, action or proceeding arising from: (a) the performance of the Services by M3D hereunder, (b) M3D’s breach of this Agreement, or (c) the negligence, intentional misconduct, or breach of confidentiality of M3D or any of its employees, agents or representatives, except in each case, to the extent caused by the negligence or intentional misconduct of Customer.
Except for claims which M3D is obligated to indemnify, defend and hold harmless above, Customer agrees to indemnify, defend and hold harmless M3D, and its directors, officers, and employees (collectively, “M3D Indemnitees”) against any liability, demand, damage, cost or expense (including reasonable attorney’s fees) arising from any third‐party claim, action or proceeding arising from: (a) Customer’s breach of this Agreement, or (b) the negligence or intentional misconduct of Customer or any of its employees, agents or representatives, except in each case, to the extent caused by the
negligence or intentional misconduct of M3D.
CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 16, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO M3D UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Exceptions. The exclusions and limitations do not apply to M3D’s obligations under Section 2 or liability for M3D’s gross negligence, willful misconduct, or breach of confidentiality.
17. Term and Termination.
Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless
terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect from such date for the initial term set forth in the initial Order Form (the “Initial Term“).
either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Customer may terminate this Agreement or any Order Form upon thirty (30) days written notice to M3D.
Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
M3D shall immediately cease all use of any Customer Data and Content (including M3D Materials combined, used, or created with Customer Data and Content) or Customer’s Confidential Information and (i) within thirty (30) days return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data and Content or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Content and Customer’s Confidential Information from all systems M3D directly or indirectly controls, provided that, for clarity, M3D’s obligations under this Section 17 do not apply to any Resultant Data;
if Customer terminates this Agreement, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and M3D will: (i) refund to Customer Fees paid in advance for Services that M3D has not performed as of the effective date of termination; and (ii) pay to Customer any unpaid service credits to which Customer is entitled; and
Surviving Terms. The provisions set forth in the following sections will survive any expiration or termination of this Agreement: Sections 1, 3, 12, 13, 14, 16, and 18.
Further Assurances. On a party’s reasonable request, the other party shall, at the requesting
party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall 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 shall have authority to contract for or bind the other party in any manner whatsoever.
Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party.
Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as set forth in the initial Order Form (or to such other address or such other person that such party may designate from time to time in accordance with this Section 18). Notices sent in accordance with this Section 18 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice‐versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Entire Agreement. This Agreement, together with the Order Form(s), constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Assignment. This Agreement may not be assigned by either party without the prior written consent of
the other party, except that a party may assign this Agreement to a successor to all or substantially all of that party’s business or assets that pertain to this Agreement whether by sale, merger, operation of law or otherwise. No assignment will relieve the assigning party of any of its obligations or performance under this Agreement. Any purported assignment in violation of this Section 18 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
No Breach or Default. In no event will M3D be liable or responsible to Customer, or be deemed
to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond M3D’s reasonable control (a “Force Majeure Event“), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of ninety (90) days or more.
Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, M3D shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
No Third‐Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of thisAgreement.
Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing identified as an amendment to this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extentpossible.
Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non‐prevailing party.
Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by the laws of the State of California without regard to the conflict of laws provisions thereof.
Counterparts. This Agreement and Order Forms may be executed in counterparts (including by email exchange of “.pdf” copies), each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of an Order Form delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Payment for one hundred percent (100%) of the value of the Initial Signage Coordination, Design, Implementation and Deployment within thirty (30) days upon receipt of invoice. Invoices for the Professional Services rendered monthly are due and payable within thirty (30) days of receipt of invoice.
All out‐of‐pocket expenses, subject to pre‐approval by the Customer’s service manager, will be billed by M3D along with proper back‐up paperwork and paid by the client in addition to the fees quoted above. Customer will be informed up front (prior to work) if any out‐of‐pocket expenses are being used or anticipated.
Client requested changes
Significant changes to the project (as outlined in writing in above proposal) may necessitate re‐ estimating both its cost and timing. If such changes are required, M3D will inform Customer both verbally and in writing and receive Customer’s written authorization before proceeding with the changes.
Early termination of project
Should the project be terminated early by the client, M3D will be reimbursed for all documented fees and pre‐ approved out of pocket expenses incurred for work completed before the point of termination.
Infringement and claims
M3D carefully reviews all work and specifications. However, it is Customer’s responsibility to review and approve all work, specifications and documents before use. All preliminary designs, original art, sketches, mock‐ ups and other materials remain the property of M3D (except those M3D Materials combined, used, or created with Customer Data and Content). The final design will be delivered to Customer via the appropriate media; however, M3D remains the sole holder of the original media files for M3D Materials not combined, used, or created with Customer Data and Content.
M3D understands that the nature of the project is proprietary. We will take all reasonable precautions to ensure that work done for and proprietary information provided by Customer will remain confidential. We provide all services as an independent contractor to you, not as your employees or agent. We shall not undertake any activities nor make commitments on your behalf without your prior approval.