TERMS OF SERVICE
REVIEW OUR TERMS OF SERVICE BEFORE ORDERING, USING OR ACCESSING MAUTIC SERVICES, SOFTWARE, OR SUPPORT FROM MAUTIC.NET, MAUTIC.COM, OR ANY OTHER MAUTIC DOMAIN. THESE TERMS (HEREINAFTER, THE “AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU, AS AN INDIVIDUAL, BUSINESS ENTITY, OR CHANNEL PARTNER ORDERING THE SERVICES (“YOU” OR “CUSTOMER”) AND MAUTIC, INC. (“MAUTIC” OR "COMPANY").
FOR THE RIGHT TO USE MAUTIC’S SOFTWARE AS A SERVICE, AND ANY APPLICABLE SERVICES OR PROGRAMS, (COLLECTIVELY, THE “SERVICES”). THE TERM “PROGRAM” REFERS TO THE SOFTWARE PRODUCTS OWNED, SUPPORTED AND/OR DISTRIBUTED BY MAUTIC, TO WHICH MAUTIC GRANTS YOU ACCESS AS A PARTY OF THE SERVICES, INCLUDING PROGRAM DOCUMENTATION, AND ANY PROGRAM UPDATES PROVIDED AS PART OF THE SERVICES.
BY ACCESSING, OR OTHERWISE USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ANY OF ITS USERS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE SERVICES.
IF YOU ARE ACCESSING THE SERVICES ELECTRONICALLY BY CREATING OR ACCESSING AN ACCOUNT, YOU AGREE THAT:
(i) YOU HAVE THE REQUISITE AUTHORITY AND RIGHT TO FULLY BIND THE CUSTOMER USING THE SERVICES AND;
(ii) TO BE BOUND BY THIS AGREEMENT AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED HEREIN BY REFERENCE.
This agreement is between, Mautic, Inc. (“Mautic”), a Delaware corporation, and you (“you”, “your”, “Customer”, “User”), as an authorized user of any service (“Service”) as described in the applicable Service subscription options from Mautic via a Mautic authorized statement of work, order form or purchase order (collectively, the “Purchase Order”).
A paying customer (“Paying Customer") of Mautic will require a countersigned Purchase Order, which will include such other incidental resources, technology, functions, upgrades, enhancements, or documentation, as required for proper performance and use of the Services. Such incidental resources could include training and support, professional or any other services procured separately from Mautic. Dependencies, if any, related to Mautic’s performance or delivery requirements and Customer receipt or use of the Services shall be described by Mautic online or otherwise in writing in advance to Customer as part of such Purchase Order. The Services do not include any third-party technology that is licensed between Customer and a third-party licensor under separate terms. Mautic may, in its sole discretion periodically during the term of this Agreement modify, change, enhance, correct or upgrade the Services (including addition of features and functionality thereto, and removal of features and functionality therefrom).
2. FEES AND PAYMENT TERMS.
(2a) Fees. Paying customers are subject to fees for service. Unless otherwise specified in a Purchase Order, all fees payable to Mautic are due net thirty (30) days from the date of receipt of each invoice. Unpaid fees which are not subject to a good faith dispute shall be subject to a percentage of a finance charge per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection incurred by Mautic.
(2b) Taxes. Customer shall pay all taxes, tariffs and transportation costs relating to, or incurred under, this Agreement (including any separately stated sales, use, excise or value added taxes), exclusive of taxes based on or measured by Mautic’s net income, unless Customer is exempt from the payment of such taxes and provides Mautic with acceptable evidence of such exemption.
(2c) Unless otherwise disclosed, all rights granted to Customer herein are contingent upon Customer’s payment of all applicable fees for the Services, products and support.
(3a) Term. Unless earlier terminated in accordance with the rights set forth in this Agreement, this Agreement shall commence as of the Effective Date, and remain in effect until all Purchase Orders, Channel Partner or Reseller Agreement (if applicable) hereunder have expired or terminated. The initial term of each subscription shall be as specified in the applicable Purchase Order, Channel Partner or Reseller Agreement (the “Initial Term”).
Except as otherwise specified in a Purchase Order, Channel Partner Agreement or Reseller Agreement, subscriptions will automatically renew for additional periods (each, a “Renewal Term”) equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other Party written notice of non-renewal at least 30 days before the end of the applicable subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Mautic provides written notice of a pricing increase at least 30 days before the end of that prior term or addresses price increases in the original Purchase Order, in which case the pricing increase will be effective upon such renewal and thereafter.
Paying Customers and non-paying users (“Free Users”) are obligated to abide by Mautic’s Acceptable Use Policy when using the Services. Violation of the Acceptable Use Policy – or the few items directly below – can result in Mautic suspending or terminating all present and future accounts (“accounts”) related to that individual, group or organization.
- Free Users may not create more than one free Mautic account under multiple names or email addresses for their individual, organizational or clients' needs. If an individual or organization wishes to create, access and/or use multiple Mautic accounts, they must speak with Mautic about upgrading their account.
- Paying Customers and Free Users are not permitted to participate in, or perform, load testing or performance testing for any Mautic Products or Services. Such testing can be requested of Mautic by Paying Customers.
(3b) Termination for Default. Either party has the right to terminate this Agreement (or any Purchase Order), in whole or in part, if the other party breaches or is in default of any material obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within fifteen (15) business days after receipt of written notice from the non- defaulting party or within such additional cure period as the non-defaulting party may authorize. If Mautic terminates due to a default by Customer, Mautic may terminate this Agreement and/or applicable Purchase Order(s) without liability to Customer, and Customer will pay any unpaid fees covering the remainder of the term of all Purchase Orders. In no event will termination relieve Customer of its obligation to pay any fees payable to Mautic for the period prior to the effective date of termination.
(3c) Termination for Bankruptcy. Customer shall provide Mautic advance written notice of any material adverse change to Customer’s financial condition, credit rating, or viability. If Customer becomes insolvent, takes any step leading to its cessation as a going concern, fails to pay its debts as they become due, or ceases business operations, then Mautic may immediately terminate this Agreement and any Purchase Orders then in effect. All rights and licenses granted by Customer are, and will otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (11 U.S.C. §101 et. seq.) or other similar laws in other countries (collectively, the “Bankruptcy Code”), or any replacement provision thereof, licenses to rights to “intellectual property” as defined in such Bankruptcy Code. Mautic, as licensor of such rights under this Agreement, will retain and may fully exercise all of its rights and elections under the Bankruptcy Code subject to any obligations of Mautic under such Bankruptcy Code. In the event of the commencement of bankruptcy proceedings by or against Customer (or its affiliates), Mautic will be entitled to retain its rights of use and licenses under this Agreement subject to Customer’s (and its affiliates’) rights under the Bankruptcy Code.
(3d) Effects of Termination; Survival. Upon termination of this Agreement, all rights and licenses granted hereunder shall cease, except as otherwise provided in this Agreement. Those provisions of this Agreement which, by their nature, are meant to survive termination shall so survive, and include without limitation provisions related to ownership of intellectual property, confidentiality, indemnification, limitation of liability, warranties and representations, governing law and venue, and payment. Customer shall not be relieved of its obligation to pay any monies due or to become due as of or after the date of expiration or termination of this Agreement.
(3e) Suspension or Deletion of Free User Accounts. Mautic may suspend or delete a Free User account if the account violates any part of the Acceptable Use Policy or these Terms of Service; is deemed by Mautic to be abandoned after 180 days of login inactivity, or for Mautic's convenience. If Mautic chooses to delete or suspend that account, the Free User will not be able to:
(i) access this account or any data therein;
(ii) send any additional emails or messages;
(iii) access any other feature-functionality that is part of Mautic's Services
4. OWNERSHIP OF Mautic INTELLECTUAL PROPERTY (IP).
Except as set forth in Section 5 below, the parties agree that Mautic shall exclusively own and retain all Intellectual Property Rights in and to “Mautic IP”, defined as the i) the Services; ii) all works of authorship, programs, code, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, and concepts, any of which existed prior to the Effective Date of this Agreement, whether created by or for Mautic (“Pre-Existing Materials”); and iii) Mautic’s business, templates, documents, materials, technology, trademarks, software, source code, website(s), modifications, updates and enhancements made to such Pre-Existing Materials.
The term “Intellectual Property Rights” means copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world. The Services may be protected by certain intellectual property rights, other proprietary rights, international treaties and laws of the United States and other jurisdictions. Mautic retains all right, title, ownership, interests and intellectual property rights in and to the Services and deems the Services to be confidential information. To the extent the Services contains any materials licensed from third parties, third party suppliers may own such licensed materials.
Mautic retains all rights not expressly granted to Customer in this Agreement or in a Purchase Order. Customer agrees to protect and maintain Mautic's Intellectual Property Rights of the Services with regard to any third parties except as expressly permitted in this Agreement. Customer acknowledges that its breach of confidentiality as it relates to Mautic's Intellectual Property Rights would cause Mautic injury and entitle Mautic to obtain equitable relief, in addition to all other remedies available to it. Customer further acknowledges that Customer is acquiring only a limited license to use the Services and not any title to or ownership of the Services or any part thereof and that the Services is proprietary to and copyrighted by Mautic.
Mautic Services are copyrighted and licensed, not sold. The Company has adopted the following general policy toward copyright infringement, in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf).
5. RIGHTS GRANTED AND RESTRICTIONS.
(5a) Open Source. Components of the Services are subject to open source or free software licenses (Open Source Software). Some of the Open Source Software is owned by third parties. Depending on the terms of the applicable open source licensing agreement, the Open Source Software may not subject to the terms and conditions of Section 3 or 4. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Mautic or grants Mautic rights that supersede the terms and conditions of any applicable end user license for the Open Source Software.
(5b) Use. Mautic grants Customer a non-exclusive, non-transferable (except as set forth herein), limited right to access and use the Services ordered in a Purchase Order for your internal business operations subject to the terms of this Agreement and each applicable Purchase Order. Customer may allow its employees, contractors and/or clients, as applicable and as authorized by Customer in accordance with this Agreement and each applicable Purchase Order (collectively, “Service Users”) to use the Services for this purpose.
Customer is responsible for its Service Users’ compliance with this Agreement and all applicable Purchase Orders. Customer agrees to take all reasonable steps to prevent unauthorized use, access, copying or disclosure of the Service and Mautic IP; and ensure that all such all data, documents and comments he/she may post or submit in connection with the Services complies with all applicable laws, regulations and authority; that the content is not defamatory or indecent; and that the content will not infringe the intellectual property or data privacy rights of any third party.
Customer agrees to accept all patches, bug fixes, updates, maintenance and services packs (collectively, “Patches”) necessary for the proper function and security of the Services. Mautic is not responsible for performance or security issues encountered with the Services that result from the failure to accept the application of Patches. You ensure that any such Service Users will comply with this Agreement. Customer agrees to provide accurate identification, contact and other information which may be requested by Mautic in connection with Customer’s use or registration for the use of the Services. You acknowledge that Mautic has no delivery obligation and will not ship copies of any Programs to you. You agree that you do not acquire under the agreement any license to use Mautic Programs in excess of the scope and/or duration of the Services. Upon the end of the agreement or the Services hereunder, your right to access or use the Services and Programs shall terminate immediately.
(5c) Restrictions on Use. Except as otherwise expressly provided in this Agreement, no other license or right shall be deemed granted or implied with respect to the Services or Mautic IP.
Except as otherwise expressly allowed in this Agreement, Customer shall not:
(i) make any Services or Mautic IP available to, or use any of the Services or Mautic IP for the benefit of, anyone other than Customer and/or clients of Customer, unless such access is expressly permitted in a Purchase Order;
(ii) sell any of the Services or Mautic IP in whole or in part or in any form or manner or by any means whatsoever (unless Customer is expressly permitted to sell the Services to an end user customer as set forth in the Mautic Reseller Agreement);
(iii) copy, reproduce, repackage, retransmit, transfer, modify, adapt, store for subsequent use for any purpose, resell, license, sublicense, distribute, rent or lease any of the Services or Mautic IP in whole or in part or in any form or manner or by any means whatsoever;
(iv) use the Service or Mautic IP in an illegal or inappropriate manner (as determined by Mautic in its sole discretion);
(v) attempt to gain unauthorized access to any Services or Mautic IP in whole or in part including sharing the rights of any User permitted to use the Services with more than one individual;
(vi) permit access to or use of any Services or Mautic IP in in a way that circumvents a contractual usage limit;
(vii) reverse engineer, decompile, disassemble or otherwise attempt to derive the human readable, source code version of any of Mautic’s Intellectual Property or any action that constitutes an infringement of intellectual property or other proprietary rights;
(viii) remove any proprietary notices of Mautic or third parties found on or in the Services and Mautic IP;
(ix) access any Services or use any Mautic IP to develop or assist any third party with the development of any product or service that is generally competitive with the Services;
(x) merging of the Services into another product or program;
(xi) use or export the Services in any manner or for any purpose that violates this Agreement, or any other applicable agreements or violates any law or regulation; any third party or Mautic right including but not limited to intellectual property rights, privacy rights, or export laws;
(xii) interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services);
(xiii) use of the Services for any purpose that may menace or harass any person or cause damage or injury to any person or property, or post comments on blogs, in chat rooms, or anywhere online which Mautic deems in its sole discretion to be inappropriate (in which case you hereby authorize Mautic to remove the comment on your behalf or a Service User’s behalf);
(xiv) involve the publication of any material that is false, defamatory, harassing or obscene;
(xv) violate privacy rights; or
(xvi) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters.
Nothing herein will be construed as granting Customer, by implication, estoppel or otherwise, any license or other right to any Intellectual Property Rights of Mautic or its licensors except for the rights and license expressly granted herein. Mautic and its licensors retain all rights not so granted. In addition to any other rights afforded to Mautic under the Agreement, Mautic reserves the right to remove or disable access to any material that violates the foregoing restrictions. Mautic shall have no liability to you in the event that Mautic takes such action. You agree to defend and indemnify Mautic against any claim arising out of a violation of your obligations under this Restrictions section.
(5d) Customer Materials. Customer exclusively owns and retains all right, title, and interest in and to i) its business, technology, trademarks, and websites and all other Intellectual Property Rights in materials that are developed and owned by Customer prior to the Effective Date of this Agreement; and ii) all software programs, including source code for such programs, text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content or material that reside in, or run on or through the Services (collectively, “Customer Materials”). Customer exclusively owns and retains all Intellectual Property Rights, title, and interest in and to each of the Customer Materials. Customer grants to Mautic a non-exclusive, fully paid license to use, process, and transmit the Customer Materials for purposes of performing the Services.
(5e) U.S. Government Restricted Rights. The Services and the related documentation provided are a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer Services” and “commercial computer Services documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202-1 through 227.7202¬4 (June 1995), all U.S. Government End Users acquire the Services and the related documentation with only those rights set forth in this Agreement.
6. USER ACCESS AND PASSWORDS.
Customer is responsible for (i) identifying Service Users who are approved to have access to Mautic; (ii) providing Mautic with sufficient information to identify and authenticate its Service Users; (iii) controlling against unauthorized access by Service Users and for maintaining the confidentiality of usernames, passwords and account information; and (iv) all activities that occur under Customer’s or User’ access to the Services.
Customer must promptly notify Mautic in the event it becomes aware of misuse of any User password, unauthorized access or any other event or action that may reasonably impair the Services. Mautic IS NOT RESPONSIBLE FOR ANY ERRORS OR INACCURACIES THAT OCCUR IN THE USER AUTHENTICATION PROCESS ARISING OUT OF OR RELATING THE INFORMATION PROVIDED BY CUSTOMER FOR PURPOSES OF IDENTIFYING AND AUTHENTICATING SERVICE USERS.
(7a) As used herein, the term “Confidential Information” shall mean all non-public information that may disclosed either before or after the execution of this Agreement, whether written or oral, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information shall include Mautic IP, Customer Materials and other information deemed proprietary or confidential by the party disclosing the Confidential Information (the “Disclosing Party”), and all record-bearing media containing or disclosing such information.
(7b) A party receiving Confidential Information (“Receiving Party”) shall not directly or indirectly, at any time, without the prior written consent of the Disclosing Party, use or disclose the Confidential Information or any part thereof in a manner detrimental to the other party or for any use other than necessary for the performance of that party’s obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its employees and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information. Receiving Party agrees to and shall take all necessary steps to protect the confidentiality of the Confidential Information.
(7c) The term Confidential Information does not include information which: (i) has been or becomes published and publicly available or is now, or in the future, in the public domain without breach of this Agreement or breach of a similar agreement by a third-party; (ii) prior to disclosure hereunder, is properly within the legitimate possession of the Receiving Party which can be verified by independent evidence; (iii) subsequent to disclosure hereunder, is lawfully received from a third-party having rights therein without restriction of third-party’s or the Receiving Party’s rights to disseminate the information and without notice of any restriction against its further disclosure; (iv) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information which can be verified by independent evidence; or (v) is disclosed pursuant to a requirement of a governmental entity or the disclosure of which is required by law.
(7d) If Receiving Party is requested by a court, governmental entity or other third-party to disclose any Confidential Information, it will promptly notify Disclosing Party to permit Disclosing Party to seek a protective order or take other appropriate action. Receiving Party will also cooperate in Disclosing Party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information and shall only disclose the part of the Confidential Information as is required by law to be disclosed and Receiving Party will use its best efforts to obtain confidential treatment thereof.
(7e) Confidential Information shall not, without the prior written consent of the Disclosing Party, be disclosed to any person or entity other than employees or agents of Receiving Party who need to know the Confidential Information and in those instances only to the extent justifiable by that need. The Receiving Party shall ensure that all such entities and personnel comply with the terms of this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its affiliates, employees and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information.
(7f) Receiving Party agrees to and shall take all necessary steps to protect the confidentiality of the Confidential Information, including limiting access to the Confidential Information, maintaining the Confidential Information in a secure location, assuring and confirming the return of copies of the Confidential Information from any recipients of the Confidential Information upon completion of such recipients’ activities relating to the evaluation or use of the Confidential Information. The Receiving Party shall notify the Disclosing Party immediately, and cooperate with the Disclosing Party, upon Receiving Party’s discovery of any loss or compromise of the Confidential Information.
(7g) Receiving Party acknowledges that the Confidential Information is the exclusive property of and belongs solely to the Disclosing Party and shall not claim otherwise for any purpose.
(7h) Receiving Party agrees to return to the Disclosing Party, destroy and/or permanently delete, at Disclosing Party’s discretion, and certify in writing its destruction, permanent deletion and/or return, all written, tangible or otherwise accessible material in any form (including electronic media such as computer diskettes, CD-ROM, electronic copies or any material resident in the hard or external drive of any computer) containing or reflecting any Confidential Information (including all copies, summaries, excerpts, extracts or other reproductions) promptly following the Disclosing Party’s request.
(7i) In addition to any other rights and remedies available to Disclosing Party hereunder or at law, Receiving Party acknowledges and agrees that due to the nature of the Confidential Information its confidentiality obligations to Disclosing Party hereunder are of a unique character and agrees that any breach of such obligations may result in irreparable and continuing damage to Disclosing Party for which there may be no adequate remedy in damages. Notwithstanding anything to the contrary in this Agreement, Disclosing Party will be authorized and entitled to seek injunctive relief, without the necessity of posting a bond or other security, even if otherwise normally required, and/or a decree for specific performance, and such further relief as may be proper from a court with competent jurisdiction.
8. REPRESENTATIONS, WARRANTIES & DISCLAIMERS.
(8a) Warranties. Each party represents and warrants that: (i) at all times that it has the right and full power and authority to enter into this Agreement and each Purchase Order, and it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation; and (ii) it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable. Mautic represents and warrants that it owns the Services and that it will provide the Services in a manner consistent with general industry standards during the applicable Term. Some aspects of the Services provided under this Agreement include certain freeware, open source (“Open Source Services”) or other third party components which, if included, are provided pursuant to the terms of the applicable Open Source License or Third Party License governing its use.
(8b) Disclaimers. EXCEPT AS OTHERWISE SPECIFIED HEREIN, THE SERVICES, INCLUDING OPEN SOURCE AND THIRD PARTY COMPONENTS, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND MAUTIC MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO CUSTOMER, USER OR ANY OTHER PERSON OR ENTITY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SERVICES OR THE MAUTIC IP INCLUDING WITHOUT LIMITATION THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER MATERIAL OR ANY OTHER HARDWARE, SOFTWARE, SYSTEMS SERVICES OR DATA NOT PROVIDED BY MAUTIC. MAUTIC SHALL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE THE SERVICES AVAILABLE 24 HOURS A DAY, SEVEN DAYS A WEEK. MAUTIC DOES NOT GUARANTEE THAT THE SERVICES WILL BE ERROR-FREE OR THAT MAUTIC WILL CORRECT ALL SERVICES ERRORS OR THAT MAUTIC WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (i) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (ii) CAUSED BY ANY FAILURES OF CUSTOMER’S EQUIPMENT, SYSTEMS OR SERVERS, (iii) FOR SCHEDULED MAINTENANCE, OR (iv) FOR ANY EVENTS OF FORCE MAJEURE, AS DESCRIBED IN SECTION 11(h).
(8c) Remedies. For any breach of Mautic’s warranty in Section 8(a),Customer’s exclusive remedy and Mautic’s entire liability shall be the correction of the deficient services that cause the breach of warranty. If the failure is not so corrected, then Customer may: (a) extend the time for Mautic to correct such failure (if correction is commercially practical); or (b) terminate the Agreement.
9. LIMITATION OF LIABILITY.
MAUTIC SHALL NOT BE LIABLE TO PAYING CUSTOMERS, CLIENTS OF CUSTOMER, PARTNERS, OR USERS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, TORT OR OTHER ACTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
IN NO EVENT SHALL MAUTIC'S AGGREGATE LIABILITY – ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY, AND REGARDLESS OF THE LEGAL RIGHT CLAIMED TO HAVE BEEN VIOLATED – EXCEED THE GREATER OF:
(A) THE AGGREGATE SOFTWARE SUBSCRIPTION OR LICENSE FEES PAID BY CUSTOMER TO MAUTIC UNDER THE AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM ACCRUED, OR
(B) U.S. $100
BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIMITATIONS SET FORTH IN THIS AGREEMENT MAY NOT APPLY TO EVERY CUSTOMER. HOWEVER, EACH PAYING CUSTOMER AGREES THAT IT WILL, UNDER NO CIRCUMSTANCES BRING AN ACTION OR SUIT, FILE ANY CLAIM, OR INITIATE ANY PROCEEDING, AGAINST MAUTIC FOR AN AMOUNT GREATER THAN THE SUM REFERENCED IN THE TWO ABOVE POINTS.
IN ADDITION, MAUTIC, ON ITS OWN BEHALF AND/OR ON BEHALF OF ITS THIRD-PARTY SUPPLIERS, RESELLERS AND DISTRIBUTORS DISCLAIMS ALL LIABILITY OF ANY KIND.
(10a) Indemnification. Mautic shall indemnify, defend and hold harmless Customer and its officers, directors, employees, successors and assigns from and against, any actual or threatened losses, liabilities, expenses, damages, claims, demands, proceedings and causes of action (including without limitation reasonable attorneys’ fees and expenses) suffered, incurred or sustained by Customer if the Services infringes the IP of a third-party. Should any Mautic IP become or, in Mautic’s opinion, be likely to become the subject of any infringement claim, Mautic shall have the right, at its sole discretion and at its expense, to either procure for Customer the right to continue using or receiving the Mautic IP, replace or modify the Mautic IP so it becomes non-infringing, or remove the questionable Mautic IP. This Section states Mautic’s entire liability, and Customer’s sole and exclusive remedy for Intellectual Property Rights claims relating to or arising out of any Mautic IP.
Mautic shall have no obligation to Customer for indemnification with regard to any claim of infringement to the extent that the Mautic IP infringement claim or allegation is based on: (1) a modification made by an entity other than Mautic or its designee; (2) a violation by Customer of this Agreement; or (3) the inclusion of any Customer Materials or third party materials in any Mautic IP.
Customer will indemnify, defend and hold harmless Mautic and its officers, directors, employees, successors and assigns from and against, any actual or threatened losses, liabilities, expenses, damages, claims, demands, proceedings and causes of action (including without limitation reasonable attorneys’ fees and expenses) suffered, incurred or sustained by Mautic if Customer’s Materials or data used with the Services infringes the IP of a third-party or if Customer’s use of the Services violates applicable law or regulations or is used other than as authorized under this Agreement.
(10b) Indemnification Procedures. If any third-party claim is commenced against a person or entity entitled to indemnification under this section (the “Indemnified Party”), notice thereof shall be given to the party that is obligated to provide indemnification (the “Indemnifying Party”) as promptly as practicable.
The Indemnified Party will cooperate, at the cost of the Indemnifying Party, in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom.
(11a) Governing Law and Venue. This Agreement will be governed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in Suffolk County, Massachusetts, and the parties hereby irrevocably consent to such jurisdiction and venue. The UN Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to this Agreement. In the event of a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
(11b) Notices. Unless otherwise stated, all notices, consents or approvals hereunder will be in writing and will be deemed to have been given and received when (a) delivered personally or by courier; (b) received by certified or registered mail, return receipt requested, postage prepaid; or (c) sent by email or confirmed facsimile transmission; in Mautic’s case, at firstname.lastname@example.org; and in Customer’s case, at the email address provided by Customer upon registration for the Services or at any address provided by Customer upon registration.
(11c) Entire Agreement; Severability; Modification. This Agreement, including any Purchase Orders is the entire agreement of the parties, and supersedes all prior agreements and communications between the parties with respect to the subject matter of this Agreement, and represents the complete integration of the parties’ agreement. In interpreting and construing this Agreement, the fact that one or the other of Mautic or Customer may have drafted this Agreement or any provision hereof shall not be given any weight or relevance, both parties having had an opportunity to review and negotiate the terms hereof. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired. This Agreement may be modified only by a written agreement executed by an authorized representative of the party against whom the modification is asserted.
(11d) No Waiver. The failure of a party in any one or more instances to exercise any right or privilege arising out of this Agreement shall not preclude it from requiring that the other party fully perform its obligations or preclude it from exercising such a right or privilege at any time.
(11e) Independent Contractors. Mautic and the Customer shall each act as independent contractors. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties.
(11f) Assignment. This Agreement shall not be assigned or transferred in whole or in part by either party without the prior written consent of the other, provided that either party may assign this Agreement without prior written consent in connection with a public offering of its securities or in a sale of all or substantially all of its assets to which this Agreement relates or by way of merger, consolidation, or similar transaction, provided that the assignee assumes the rights and obligations of the assignor under this Agreement and under Purchase Orders which are in effect at the time of such assignment. Any purported assignment or transfer in violation of this Section shall be void. Nothing in this Agreement shall be construed as permitting a trustee or purchaser in bankruptcy to assume this Agreement without the written consent of the other party. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
(11g) Force Majeure. Except for the obligation to pay sums due hereunder, neither party shall be responsible for delays or failures in performance of this Agreement resulting from acts beyond its reasonable control. Termination under this Section will not relieve Customer of its obligation to pay for Services rendered prior to the date the event of force majeure arose. Mautic will make commercially reasonable efforts to re-establish Services as soon as possible in the event of a Force Majeure event.
(11h) Marketing. Neither party will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other party, for which, consent shall not be unreasonably withheld. However, Mautic shall have the right to use Customer’s name and/or logo in general marketing materials related to the Services.
(11i) Competition. Customer acknowledges and agrees that Mautic may, without limitation, accept agreements from, grant licenses to other persons, firms, corporations, or other entities, including entities that compete with Customer, for Services and products, on any terms Mautic deems appropriate.
(11j) Export Control. Each party to this Agreement agrees to comply with all relevant export laws and regulations of the United States and other countries to assure that no Confidential Information or any portion thereof is exported, directly or indirectly, in violation of such laws. Services, technology, and technical data received by Customer from Mautic shall be deemed and treated by Mautic as being classified under Export Control Classification Number EAR99 on the Commerce Control List of the U.S. Export Administration Regulations for purposes of export from the United States, unless Mautic clearly marks such technical data to the contrary and supplies alternative export control information. Customer agrees to indemnify, defend and hold harmless Mautic Indemnified Parties against any and all liability under U.S. export control laws, regulations and requirements in connection with export or re-export of the technical data received from Mautic if the technical data from Mautic is not clearly marked with alternative export control information.
(11k) Counterparts This Agreement may be executed in several counterparts, each of which will be deemed to be an original, all of which, when taken together, shall constitute one and the same instrument.
(11l) Rule of Interpretation. (i) The term “including” (in all of its forms) means “including, without limitations” unless expressly stated otherwise; (ii) Any headings set forth in this Agreement are solely for convenience or reference and do not constitute a part of this Agreement, nor do they affect the meaning, construction or effect of this Agreement; (iii) All references to a number of days mean calendar days, unless expressly stated otherwise; (iv) The schedules, exhibits, or Purchase Orders subject to this Agreement shall be deemed to be a part of this Agreement and are incorporated by reference herein; (v) No documents exchanged or course of dealings by the parties shall be deemed to modify or amend any of the terms of the Agreement unless in writing and signed by an authorized representative of both parties; (vi) In the event of an inconsistency, ambiguity, contradiction or conflict between the terms of this Agreement, the Reseller or Channel Partner Agreement, its schedules, exhibits or Purchase Order and any amendments to any of the foregoing, such documents shall be interpreted in the following order of precedence: (1) the terms of any amendment to this Agreement shall take precedence, (2) followed by the terms of this Agreement, unless a Purchase Order or the Reseller Agreement expressly states that it overrides a specific provision of this Agreement, with reference to the provision of this Agreement that is to be overridden; (iii) followed by the terms of any schedules and then exhibits to this Agreement.
(11m) Relationship between the parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the authority to bind the other or incur obligations on behalf of the other without such other party’s prior written consent.
For questions or clarifications related to these Terms of Service, you may contact us via:
Mail: Mautic, Inc.
10 Cabot Rd Suite 101B
Medford, MA 02155
ATTN: General Counsel's Office
Last updated: September, 2018