Mavenlink Hosted Services Agreement
Terms and Conditions | Private and Confidential
These Terms are entered into as of the Order Form Effective Date (“Effective Date”) and, along with the Order Form and any attached Exhibits, collectively serve as the Hosted Services Agreement (“Agreement”) between Mavenlink, Inc. (“Mavenlink”) and the Client (“Client”). All capitalized terms used but not defined in these Terms have the meanings provided for them in the Order Form. Both Mavenlink and the Client is a "Party" and together they are "Parties."
In addition to the capitalized terms defined throughout the Agreement, the following defined terms will have the following meanings:
1.1. "Authorized Users" means Client Users and External Users that have been authorized by Mavenlink through the Hosted Services to access a Client Workspace.
1.2. "Client Data" means any content, data, and other information in any form or media provided by Authorized Users when accessing a Client Workspace within the Hosted Services.
1.3. "Client Workspace" means an area within the Hosted Services that is accessible only to those Users granted access by Client.
1.4. "Client User" means a User that is an employee, agent, or contractor of Client with a User Account issued under Client’s subscription to the Hosted Services.
1.5. "External User" means a User with a User Account that is not issued under Client’s subscription to the Hosted Services.
1.6. "Documentation" means any Hosted Services descriptions or documentation, including manuals and materials, provided or otherwise made available by Mavenlink to Client as part of the Hosted Services.
1.7. "Hosted Services" means those hosted business management for project delivery solutions provided by Mavenlink as designated in an Order Form attached as an Exhibit.
1.8. "Order Form" means any Order Form or Supplemental Order Form executed by the Parties.
1.9. "Professional Services" means the implementation, training, integration or consulting services ordered by Client on an Order Form and further described in a Statement of Work.
1.10. "Services" means the Hosted Services and any Professional Services ordered by Client on an Order Form, and all Documentation.
1.11. "Statement of Work" means the detailed description of the one-time Professional Services engagement attached as an Exhibit to this Agreement.
1.12. "Term" is defined in Section 8.
1.13. "User" means an individual that accesses or uses the Hosted Services.
1.14. "User Account" means an account created within the Hosted Services in order to access the Hosted Services that is associated with a specific individual as identified by a unique email address.
2.1. Client will pay for the Services. All Services will be provided to Client in accordance with the Agreement. Mavenlink has not agreed to provide any services other than those that are clearly identified in an Order Form or in a Statement of Work.
2.2. Mavenlink shall provide 24x7 live chat and email support (“Customer Support Services”). In addition, the web interface for Mavenlink’s software (www.mavenlink.com) will be operational and available to Client at least 99.9% of the time in any calendar month (“The Mavenlink SLA”). For purposes of clarification, scheduled maintenance shall not be counted positively or negatively in the calculation of operational time or availability of the application. If Mavenlink does not meet The Mavenlink SLA during any calendar month, so long as Client meets its obligations under this Agreement, and if Client notifies Mavenlink of the failure within 30 days of the calendar month in question, Client will be eligible to receive a refund of the equivalent of that month’s Subscription Fee.
2.3. Subject to the terms, conditions and limitations set forth in the Agreement, Mavenlink grants Client a limited, non-exclusive, personal, non-transferrable, non-sub licensable right for Authorized Users to access and use the Hosted Services during the Term solely for Client’s own business purposes as permitted by these Terms. For the avoidance of doubt, if Client’s business is to provide professional services to third parties (e.g., consulting, legal, accounting, etc.), use of the Hosted Services in connection with Client’s provision of services (including use by Client’s clients that are designated as Authorized Users) is for Client’s own business purposes.
2.4. All Professional Services in connection with the purchase of Hosted Services will be performed in accordance with terms of conditions of the attached Exhibit 2 ("Services Addendum").
3.1. Client must not use the Services in any manner that is not described in the Documentation, Services description, Order Form, these Terms, or in Exhibit 1 and must not license, sell, rent, lease, lend, transfer, outsource, act as a service bureau or a provider of a time-sharing service for, or otherwise provide access to the Services or utilize the Services for the benefit of any affiliate or any third party except as expressly permitted under Section 2.2.
3.2. Client may not use the Services in any manner that Mavenlink reasonably believes is abusive or that is contrary to applicable law. Specifically, Client must not use the Services in any manner that would violate the U.S. economic sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury, including by using the Services to facilitate a project where the benefit is received in a sanctioned country or by a sanctioned government, person or entity, wherever located. For clarity, Client is solely responsible for compliance related to the manner in which Client chooses to use the Services, including transfer and processing of Client Data and the provision of Client Data to Users.
3.3. Client is responsible for the acts and omissions of Authorized Users as if they were the acts and omissions of Client.
3.4. Client will not remove, obscure, or alter Mavenlink’s copyright notices, trademarks, or other proprietary rights notices on any Service.
3.5. Mavenlink reserves all rights not expressly granted to Client in these Terms, including all right, title and interest in any and all patent rights, copyrights, trademark, trade secret and other intellectual property and proprietary rights in the Services, as well as any improvements, design contributions or derivative works.
3.6. When using the Services, Client must not and will ensure that Authorized Users do not: (a) except as permitted by applicable law, decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access the source code of any Services; (b) upload any Client Data to the Hosted Services or otherwise provide any content, data or information to Mavenlink that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (c) infringe the intellectual property rights of any third party; (d) interfere with or disrupt the Services, Mavenlink or any third party systems used to host the Services, or other equipment or networks used to provide the Services; (e) provide, or make available, any links, hypertext (Universal Resource Locator (URL) address) or otherwise (other than a "bookmark" from a Web browser) to the Services, or any part thereof; (f) circumvent the user authentication or security of the Services or any host, network, or account related thereto; (g) use any application programming interface to access the Services; (h) copy or otherwise duplicate the Services except as expressly permitted under the Agreement; (i) make any use of the Services that violates any applicable local, state, national, international or foreign law; or (j) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the Services, or (k) allow any individual to use any User Account log-in credentials (e.g., User identification(s), code(s), password(s), procedure(s) and User keys) issued to, or selected by, Client for someone other than the individual identified in the User Account information. If any Client affiliate(s) receives any of the Services from Mavenlink, Client will be responsible for any act or omission of its affiliate(s) with respect to any obligation of Client in the Agreement as if that action or inaction was Client’s action or inaction.
3.7. If Client believes that any person or entity (including Authorized Users or other employees, agents, or contractors of Client) is taking or threatens to take any action (or inaction) that would violate any of the provisions in the Agreement, Client will immediately notify Mavenlink of that action (or inaction) and Mavenlink may take action to prevent the violation including suspending Client’s access to the Services. Client agrees to cooperate in all ways requested by Mavenlink to protect the Services, and Mavenlink's copyright, patent, or trade secret and other intellectual property and proprietary rights in and to the Services.
3.8. Mavenlink may change or modify the Services at any time. Mavenlink will only be required to notify Client of a change or modification to the Services in advance if the change or modification is material and does not extend or enhance the functionalities or architecture of the Services. If Mavenlink notifies Client of a change as required in this Section and Client does not wish to use the Services after notification of the change, Client may, within 30 days of notification, provide Mavenlink with written notice that it rejects the change. If Client rejects a change, Mavenlink may, in its sole discretion, choose to continue to offer Client the Service without the change or terminate the Agreement on 30 days’ written notice. If Client provides no written notice to Mavenlink within the thirty-day period, Client will be deemed to have accepted the change and the Agreement will continue in full force and effect. Upon termination, Client’s exclusive remedy and Mavenlink’s sole liability is to refund any prepaid and unused fees from the effective date of the termination of the Services. Nothing in this Section requires Mavenlink to continue to provide any portion of the Services if it would result in Mavenlink violating the rights of any third party or any applicable law.
4. Client Data and Security Backup
4.2. Mavenlink maintains security incident management policies and procedures, including detailed security incident escalation procedures, consistent with reasonable industry standards. Mavenlink will notify Client if Mavenlink becomes aware of any unauthorized disclosure of Client Data. Mavenlink may monitor Client’s compliance with the Agreement, including Client Data uploaded to the Services.
4.3. Once per year during the Term Mavenlink will, upon request, provide Client with SSAE 16 SOC 1 and SOC 2 Reports. All reports provided by Mavenlink are Confidential Information of Mavenlink.
4.4. Mavenlink is not responsible for the transfer of any data, including Client Data, over telecommunications facilities, including the Internet. Mavenlink does not warrant secure operation of the Services or that security technologies will be able to prevent disruption to any Service.
4.5. Client acknowledges that the Services are not intended to be used for purposes of archiving or backing-up Client Data and Client will not use the Services for those purposes.
5. Client Responsibilities and Obligations
5.1. By making Client Data available for use in connection with the Services, Client warrants that it has all rights, licenses and consents necessary to provide the Client Data to Mavenlink for use in connection with, and for the purposes contemplated by, the Services (including any consents required by applicable regulation, rules or other laws (collectively the "Data Protection Legislation")).
5.2. Client represents and warrants that (a) it has obtained all rights to use systems, software or any other tangible or intangible property owned by persons or entities other than Client necessary for Client to access and use the Services; (b) it will maintain confidentiality of User log-in credentials (e.g., User identification(s), code(s), password(s), procedure(s) and User keys); (c) Client Data is free of all viruses, Trojan horses, and other elements which could interrupt or harm the systems or software used by Mavenlink or its contractors to provide the Services; and (d) Client, Authorized Users, and all Client Data will comply with all applicable laws, rules, and regulations and also with all applicable security guidelines and procedures made known to Client by Mavenlink through the Services or otherwise. Client will and will require Authorized Users to change all passwords used to access the Services at regular intervals. If Client believes a third party may have obtained knowledge of an Authorized User’s password, Client will notify Mavenlink immediately and promptly change the password.
6. Payment Terms
6.1. Client will pay for all fees for the Services in accordance with the Agreement. Client will pay all invoices in accordance with the payment terms described in the applicable Order Form or SOW. Client acknowledges that Professional Services will not begin until payment has been received. A finance charge of 1.5% per month or the highest amount allowed by law, whichever is greater, will be assessed on all payments not paid when due. Payments will be invoiced and made in United States Dollars. Client will not have any right to withhold or reduce fees under the Agreement or set off any amount against fees owed. Except as set forth in Section 3.8, all paid fees are non-refundable.
6.2. For the fees to be paid by electronic funds transfer, Client hereby authorizes Mavenlink to initiate electronic funds transfer from Client’s bank account indicated in an Order in an amount equal to the fees set forth in each invoice issued by Mavenlink. All payments made by electronic funds transfer will be payable with immediately available funds.
6.3. All out-of-pocket costs and expenses (including travel and hotel costs, if any) incurred by Mavenlink in connection with Mavenlink’s provision of the Services are not included in the fees for any Services. Mavenlink may invoice Client and Client will pay Mavenlink those out-of-pocket costs and expenses incurred by Mavenlink in performing the Services.
6.4. Fees and other charges described in the Agreement, or in any of Mavenlink’s list of prices, do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar taxes (including any sales or value added taxes) ("Taxes") now or hereafter levied, all of which are Client’s responsibility. Mavenlink, however, will be responsible for all taxes based upon its net income. With respect to state/local sales tax, Client’s direct pay permits or valid tax-exempt certificates must be provided to Mavenlink prior to the execution of the Agreement. If Mavenlink is required to pay Taxes, Client will reimburse Mavenlink for those amounts. Client hereby agrees to indemnify Mavenlink for any Taxes and related costs, interest and penalties paid or payable by Mavenlink.
7.1. "Confidential Information" means all non-public information whether in oral, written, graphic, electronic or other form, disclosed by a Party that is designated as confidential or provided under circumstances reasonably indicating that the information or material is proprietary or confidential. In particular, "Confidential Information" includes any non-public portions of the Services and information about the Services, technical information, processes or methods, data, research or test results, and the existence and terms of the Agreement.
7.2. Each Party will treat Confidential Information of the other Party and its affiliates with at least the same degree of care as it would its own confidential information and use no less than reasonable care to protect it from unauthorized use and disclosure. Each Party will (a) limit the use of the other Party’s Confidential Information solely for purposes directly related to the Services; (b) restrict the use of and access to the Confidential Information to its and its affiliates’ employees with a need to know and its legal and finance advisors each who are bound to obligations of confidentiality consistent with this Agreement. The receiving Party may disclose Confidential Information of the other Party if required to be disclosed pursuant to any judicial or governmental request, requirement or order, provided the receiving Party takes reasonable steps to give the other Party sufficient prior notice in order to contest that request, requirement or order.
7.3. The obligations in Section 7.2 do not apply if Confidential Information (a) is now, or hereafter becomes, through no act or failure to act on the part of the Party receiving the Confidential Information, generally known or available; (b) is or was known by the receiving Party at or before the time that information or material was received from the other Party; (c) is furnished to the receiving Party by a third party that is not under an obligation of confidentiality with respect to that information; or (d) is independently developed by the receiving Party without any breach of the Agreement. Client acknowledges and agrees that if there is any unauthorized use, reproduction, distribution or disclosure of any Confidential Information, an adequate remedy at law would not be available and, therefore, Mavenlink may seek injunctive or other equitable relief to restrain the use, reproduction, distribution or disclosure, whether threatened or actual.
7.4. Unless otherwise expressly provided in the Agreement, upon any termination of the Agreement, or at any time upon request, a Party will promptly return or destroy the other Party’s Confidential Information.
8. Term and Termination
8.1. Unless terminated earlier pursuant to the Agreement, the Agreement will commence on the first Order Form Effective Date and will continue until the end of the first Order Form Term (“Initial Term”), at which time the parties can mutually agree to renew one or more times (each a “Renewal Term”). Collectively, the Initial Term and Renewal Term(s) (if any) constitute the “Term”.
8.2. Either Party may terminate the Agreement: (a) upon not less than 30 days prior written notice to the other Party of any material breach of the Agreement by the other Party, provided that the breaching Party has not cured the breach within the 30-day notice period; or (b) immediately upon written notice to the other Party of any breach by the other Party of Section 7.
8.3. Either Party may terminate the Agreement immediately in the event of (a) insolvency affecting Client under which Client (i) is unable to pay its debts when due, (ii) makes any assignment or composition for the benefit of creditors, (iii) has appointed or suffers the appointment of a receiver or trustee for its business, property or assets, (iv) files or has filed against it any petition under the bankruptcy or insolvency laws of any jurisdiction, (v) is adjudicated bankrupt or insolvent, or (vi) suffers any other event analogous to the events described in subsections (i)-(v) in any jurisdiction, or (b) a Change of Control (defined in Section 14).
8.4. Client remains liable for all fees that have been invoiced and all Services provided or performed as of the termination date of the Agreement. If the Agreement was terminated by Client pursuant to Sections 8.1 or by Mavenlink pursuant to Sections 8.2 or 8.3, Client will pay Mavenlink all of the fees that Client would have paid for the remainder of the Initial Term or then current Renewal Term (whichever is applicable) and Mavenlink may invoice Client for those fees immediately upon termination.
8.5. Upon the effective date of termination, Client will have no right to access the Services and Mavenlink may terminate Client’s access to the Services. Mavenlink will not take any action to intentionally erase any of Client Data stored on the Services, and Client may retrieve Client Data from the Services; provided, that: (a) Client pays Mavenlink for the cost of access and media used to deliver the Client Data to Client and any other amounts due to Mavenlink; and (b) Mavenlink did not terminate the Agreement pursuant to Section 8.2 or 8.3. Any additional post-termination assistance from Mavenlink is subject to the mutual agreement of the Parties including Client’s agreement to pay all of Mavenlink’s applicable fees. Except as provided in this Section, Mavenlink will have no obligation to continue to store or permit Client to retrieve any Client Data following any termination of the Agreement.
8.6. Sections 3, 4.4, 4.5, 5, 6, 7, 8.5, 8.6, 9.4, 10, 11, 12, and 13-22 will survive the expiration or termination of the Agreement.
9. Warranties and Disclaimers
9.1. Each Party represents and warrants to the other Party as follows: (a) it has the full power and authority to enter into this Agreement; (b) its execution and performance of this Agreement have been duly authorized by all necessary corporate action on behalf of that Party; and (c) the person signing this Agreement on behalf of that Party has the full authority to do so.
9.2. Mavenlink warrants that any Professional Services and support provided by Mavenlink pursuant to an Order (if any) will be performed by reasonably qualified personnel in a professional manner. Client must report any breach of this warranty in writing within ninety (90) days in order to receive warranty remedies. Upon receipt of a written report from Client, Mavenlink will re-perform the applicable Professional Services or support.
9.3. Mavenlink warrants that the Hosted Services will perform substantially in accordance with the Documentation. The warranty will not apply if: (a) any unauthorized access to or use of the Service or use of the Services in a manner that is prohibited by this Agreement or any Documentation and requirements provided by Mavenlink; or (b) the failure is caused by Client Data, faulty Internet connection, systems or hardware supplied by or any customizations to the Services. Client’s sole and exclusive remedy of this warranty, whether due to Mavenlink’s negligence or breach of any other duty, will be, at Mavenlink’s option to: (a) bring the performance of the Hosted Services into compliance in all material respects with the Documentation; or (b) refund an appropriate portion of any fees paid to Mavenlink by Client with respect to the affected portion of the applicable Services (any refund will not exceed the amount of fees paid during the 3-month period prior to the date the Services were affected).
9.4. EXCEPT FOR EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED AS IS, AS AVAILABLE, AND WITH ALL FAULTS, AND MAVENLINK AND ITS AFFILIATES HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OR CONDITION OF NON-INFRINGEMENT WITH REGARD TO THE SERVICE, LACK OF VIRUSES OR BUGS, ACCURACY OR COMPLETENESS OF RESULTS. IN PARTICULAR, MAVENLINK DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE OR QUALITY OF THE SERVICES (INCLUDING THE SOFTWARE) AND DOCUMENTATION REMAINS WITH CLIENT.
10. Indemnification by Mavenlink
10.1. Mavenlink will defend Client against claims brought against Client by any third party alleging that Client’s use of the Services, in accordance with the terms and conditions of the Agreement, constitutes a direct infringement or misappropriation of any United States issued patent, registered copyright or trade secret rights, and Mavenlink will pay damages finally awarded against Client (or the amount of any settlement Mavenlink enters into) with respect to those claims. This obligation of Mavenlink will not apply if the alleged infringement or misappropriation results from (a) use of the Services in combination with any other hardware, software or service, (b) use of the Services in any manner not authorized by the Agreement, (c) Client Data, (d) any modifications made to the Services, or (e) Mavenlink’s compliance with specifications or requests provided by Client.
10.2. This obligation of Mavenlink under Section 10.1 also will not apply if Client fails to timely notify Mavenlink in writing of any of any claim. Mavenlink will be permitted to control fully the defense and any settlement of any claim. If Client declines Mavenlink’s proffered defense, or otherwise fails to cede full control of the defense to Mavenlink’s designated counsel, then Client waives Mavenlink’s obligations under this Section 10. Client will cooperate fully in the defense of claims and may appear, at its own expense, through counsel reasonably acceptable to Mavenlink. Mavenlink expressly reserves the right to cease defense of any claim(s) if the Services are no longer alleged to infringe or misappropriate, or are held not to infringe or misappropriate, the third party’s rights.
10.3. Mavenlink may settle any claim on a basis requiring Mavenlink to substitute for the Services alternative substantially equivalent non-infringing services. Client will not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Services that is prejudicial to Mavenlink’s rights. If any Service becomes, or in Mavenlink’s opinion is likely to become, the subject of an infringement claim, Mavenlink may, at its option, (a) procure for Client the right to continue using the Services; (b) modify the Service so that it becomes non-infringing; or (c) terminate this Agreement and refund any prepaid but unused Service fees.
10.4. THE PROVISIONS OF THIS SECTION 10 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF MAVENLINK AND ITS LICENSORS TO CLIENT, AND CLIENT'S SOLE REMEDY, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
11. Indemnification by Client
Client will indemnify and hold Mavenlink and its affiliates and their respective employees, officers, directors, and successors harmless from third party claims arising from or related to (a) Client’s use of the Services, (b) Client’s breach of the Agreement, (c) Client Data, or (d) Client’s violation of any applicable law or regulation or in violation of legal rights of others, including, Data Protection Legislation. The foregoing will apply regardless of whether the damage is caused by the conduct of Client or Authorized Users or by the conduct of a third party using any Authorized User log-in credentials. The foregoing is, however, conditional upon Mavenlink (i) notifying Client thereof in writing and in detail without undue delay, (ii) authorizing Client to conduct any judicial and extrajudicial proceedings with the third party on its own, and (iii) providing Client at the expense of Client with any reasonable assistance so that Client can defend against the claim. Mavenlink will be entitled, at its option and own expense, to actively participate in the defense of any claim with counsel of Mavenlink’s own choosing.
12. Exclusions of Certain Damages; Exclusions of Liability
12.1. IN NO EVENT WILL EITHER PARTY BE LIABLE (REGARDLESS OF THE CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) MISREPRESENTATION, RESTITUTION, OR OTHERWISE (AT LAW OR IN EQUITY)) FOR ANY (A) LOSS OF PROFITS OR LOSS OF BUSINESS, (B) DEPLETION OF GOODWILL OR SIMILAR LOSSES, (C) LOSS OF ANTICIPATED SAVINGS, (D) LOSS OF USE, (E) LOSS OR CORRUPTION OF DATA OF INFORMATION (WHETHER ANY OF THE LOSSES SET OUT IN (A) TO (D) ARE DIRECT OR INDIRECT), OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES (INCLUDING DOCUMENTATION), THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH THE AGREEMENT, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND/OR THE REMEDIES OTHERWISE PROVIDED UNDER THE AGREEMENT, AT LAW, OR EQUITY FAIL OF THEIR ESSENTIAL PURPOSE.
12.2. NOTWITHSTANDING ANY DIRECT DAMAGES THAT CLIENT MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF EITHER PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE (WHETHER AT LAW OR IN EQUITY) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT WILL BE LIMITED TO THE ACTUAL DAMAGES UP TO THE FEES PAID TO MAVENLINK DURING THE 12-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
12.3. THE LIMITATIONS SET FORTH IN THIS SECTION 12 WILL NOT APPLY TO ANY BREACH OF SECTION 3 (RESTRICTIONS) OR 7 (CONFIDENTIALITY).
Client agrees that if it provides Mavenlink any suggestions, comments, or other feedback about the Services ("Feedback") the Feedback is given voluntarily. Notwithstanding Section 7, even if Client designates Feedback as confidential the Feedback is not Confidential Information and Mavenlink is free to use, disclose, reproduce, license, or otherwise distribute or exploit the Feedback without any obligations or restrictions of any kind, including intellectual property rights.
Neither Party may assign the Agreement, nor any rights or duties hereunder, by contract, operation of law, or otherwise without the other Party’s express prior written consent; provided however, that either party may assign its rights and obligations under this Agreement in connection with a Change of Control (as defined in this Section), without first obtaining the other party’s express written consent. Subject to the foregoing, the Agreement will bind and benefit the Parties, their permitted successors and permitted assigns. A "Change of Control" includes: (a) a change in beneficial ownership of a Party that is greater than 50% (by one or more transaction); (b) a merger with a third party, whether or not the Party survives; (c) the acquisition of more than 50% of any class of a Party’s voting stock (or any class of non-voting security convertible into voting stock) by another party (by one or more transaction); (d) the sale or other transfer of more than 50% of a Party’s assets (by one or more transaction); and (e) a Party’s acquisition of any assets (e.g., accounts receivables) or voting stock (or any class of non-voting security convertible into voting stock) or other ownership interest of a third party.
15. U.S. Government Rights
The Hosted Services are provided to the U.S. Government as "commercial items," "commercial computer software," "commercial computer software documentation," and "technical data" with the same rights and restrictions generally applicable to the Services. If Client uses the Hosted Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client will immediately discontinue use of the Hosted Service Offerings. The terms "commercial item" "commercial computer software," "commercial computer software documentation," and "technical data" are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
16. Governing Law; Arbitration
The Agreement will be governed by and construed in accordance with the U.S. Federal Arbitration Act, applicable U.S. federal law, and the laws of California, without reference to any applicable conflict of laws rules. The UN Convention on Contracts for the International Sale of Goods will not apply to the Agreement. Any dispute arising out of this Agreement will be RESOLVED THROUGH BINDING ARBITRATION, rather than in court. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Commercial Arbitration Rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Arbitration conducted in person will be in Orange County, California or at another mutually agreed location. Client and Mavenlink each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, the Parties each waive their respective rights to a trial by jury of any claim or cause of action based upon or arising out of or related to the Agreement and agree such action must be brought in the state or federal courts in Orange County, California. This waiver applies to any subsequent amendments, renewals, supplements (e.g., Supplemental Order Form) or modifications to the Agreement.
17. Force Majeure
Mavenlink will not be liable for any delay or default in its performance of any obligation under the Agreement caused directly or indirectly by an act or omission of Client, fire, flood, act of God, acts of government, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of, labor, materials, supplies, transportation or energy, failures of subcontractors or suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, or any cause or causes beyond Mavenlink’s reasonable control (collectively, "Force Majeure Events"). At Mavenlink's option if any of the foregoing causes will be deemed to suspend Mavenlink's obligations as long as that cause prevents or delays performance, and Mavenlink agrees to perform, and Client agrees to accept performance of, Mavenlink's obligations whenever that cause has been remedied.
Except as otherwise expressly set forth in these Terms, all notices given to the Parties under the Agreement will be in writing and will be personally delivered, mailed by certified mail (return receipt requested and postage prepaid), or sent via overnight delivery by a nationally recognized courier service, addressed to the respective Parties at the addresses specified on the most recent Order Form that is part of the Agreement or at the address that a Party designates in a notice to the other Party.
If any part of the Agreement is held to be illegal, invalid, or unenforceable, that part will be enforced to the fullest extent permissible to effect the Parties' intent, and the remainder will continue in full force. All choices by Mavenlink under the Agreement (no matter how described) are to be made in its sole discretion, unless stated otherwise. Any list of examples following "including" or "e.g.," is illustrative and not exhaustive, unless qualified by terms like "only" or "solely." Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular. All references to Sections, terms, and Exhibits are to the Sections, terms and Exhibits of the Terms unless expressly indicated otherwise. All captions are intended solely for the Parties' convenience, and none will affect the meaning of any provision. All references to "written," "in writing," or other words of similar import refer to a non-electronic, paper document only, except where electronic mail communication is expressly authorized.
20. Third Party Rights
Except as set forth in Sections 0 or 11, there are no third party beneficiaries of the Agreement and no third party may enforce any of the terms in the Agreement. The rights of the Parties to terminate, rescind or agree to any variation, waiver or settlement under the Agreement are not subject to the consent of any person that is not party to the Agreement.
21. Joint Marketing
Client agrees that Mavenlink can use Client’s logo in a customer list on Mavenlink’s website or in Mavenlink’s marketing materials. Client further agrees to assist Mavenlink in the parties’ mutual publicity efforts during the Term.
22. Entire Agreement
The Agreement constitutes the entire agreement between the Parties with respect to the Services and merges all prior and contemporaneous communications and proposals, whether electronic oral or written, between Parties with respect to the Services. Each Party acknowledges that, in entering into the Agreement, it has not relied on, and will have no right or remedy in respect of, any representation or warranty (whether made negligently or innocently) that is not set out in the Agreement. Each Party agrees that its only liability in respect of those representations and warranties that are set out in the Agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this clause will limit or exclude any liability for fraud. The Agreement may only be modified in a writing signed by authorized representatives of both Parties. The Agreement will prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Client to Mavenlink. In the event of conflict or inconsistency between provisions of the components of the Agreement, (a) these Terms will prevail over the terms of an Order unless the terms of an Order expressly state that they override these Terms; (b) these Terms will prevail over the Exhibits; and (c) a more recent Supplemental Order Form will prevail over the Order Form or a Supplemental Order Form agreed to earlier. Signatures sent by electronic means (facsimile or scanned and sent via e-mail) will be deemed original signatures. Mavenlink may in its sole discretion sub-contract parts of the Services to third-parties. No waiver of any provision of the Agreement will be effective unless it is in writing and signed by an authorized representative of both Parties, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.
Exhibit 1.0 - Mavenlink Hosted Services Agreement | Order Form
See Applicable Order Form
Exhibit 2.0 - Mavenlink Hosted Services Agreement | Services Addendum
This Services Addendum ("Services Addendum") is incorporated as part of the Hosted Services Agreement ("Agreement") and shall apply only to the extent that Mavenlink is providing Professional Services to Client in connection with the purchase and implementation of the Services identified in an Order Form and described further in a Statement of Work. If no such Services will be provided, the terms of this Exhibit shall not apply.
Capitalized terms used in this Addendum are defined in the Hosted Services Agreement (the "Agreement"), or in the section of this Addendum where they are first used. Capitalized terms that are not defined in this Addendum are defined in the Agreement.
a. Scope of Agreement. This Services Addendum is intended to be a master agreement under which Client can place orders for general consulting and assistance, installation, configuration, integration, training, and/or other technical services pertaining to the Software to be performed by Mavenlink with the reasonable cooperation of Client personnel and availability of required Client resources ("Services"). "Software" as used herein means Mavenlink’s commercially-available software program(s) licensed by Mavenlink to Client. Client and Mavenlink may execute project orders for Services under a Statement of Work signed by authorized representatives of the parties ("SOW"), a form of which is attached hereto and incorporated herein by this reference. To the extent of any inconsistency between this Services Addendum and the SOW, the SOW shall govern with respect to the Services under such SOW. Mavenlink may retain subcontractors to aid Mavenlink in the provision of Services.
b. Change Request. Upon receipt of a written request from Client detailing desired changes to a SOW, Mavenlink, with Client’s assistance, shall prepare a written estimate of the cost of the proposed changes. Upon Client’s approval, all changes shall be reflected in a "Change Request" executed by authorized representatives of both parties. Until such time that a Change Request is executed by both parties, the underlying SOW will remain in effect without change.
2. Term and Termination
This Services Addendum shall commence on the Effective Date and shall remain in effect until terminated in accordance with this Section 2. Client may terminate this Services Addendum on thirty (30) days’ notice for convenience; provided that Client pays all outstanding fees due for Services rendered through the effective date of termination. Either party may immediately terminate this Services Addendum or any SOW if: (i) the other party fails to perform its material obligations under this Services Addendum and such failure is not corrected within thirty (30) days after receipt of written notice of the breach from the non-breaching party, or (ii) either party is appointed a trustee for the benefit of creditors, becomes insolvent, bankrupt or initiates a voluntary dissolution. The parties’ rights and obligations under Sections 2, 3, 4, 5, 6, 7, 8 and 9 shall survive termination of this Services Addendum.
Client will reimburse Mavenlink for its reasonable pre-approved travel and out-of-pocket expenses actually incurred in connection with the Services.
In connection with the provision of Services, Mavenlink will own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights and all other intellectual property rights throughout the world) relating to any and all inventions, works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part under this Services Addendum (collectively the "Mavenlink Property"). Client shall have a non-exclusive, worldwide, license to use, display, perform, and reproduce the Mavenlink Property internally in connection with Client’s authorized use of the Software for the duration of the time that Client has a valid license to the Software.
a. Independent Contractor. Mavenlink is an independent contractor and nothing in this Services Addendum or related to Mavenlink’s performance of any SOW shall be construed to create an employer-employee relationship between Client and Mavenlink or any Mavenlink consultant. Each party shall be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes and insurance.
b. Severability. If any provision of this Services Addendum is held invalid or unenforceable, this Services Addendum shall be modified to the extent required.