Terms of Service
The following Terms of Service (“TOS”) govern the Client’s use of the Services. Client’s use of the Services is subject to these terms and conditions.
“M2A Software” means: (a) the software and associated documentation provided to Client by M2A, including, but not limited to, one or more of the following: the object or binary code, dynamic link libraries, statically linked libraries, executables, header files, sample programs, specific parts of the source code as disclosed by M2A, utility programs, makefiles, project files, scripts and documentation, (b) any and all updates and fix releases thereto, and (c) any other documentation or source code or object or binary code provided by M2A under this Agreement.
“Confidential Information” means all trade secrets, know-how, inventions, developments, software and other non-public or proprietary financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is: (a) already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on the Confidential Information of the disclosing party.
“Content” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, and other materials that may be viewed on, accessed through, or contributed to the Services.
“Client Content” means Content contributed to the Services by Client.
“Client Data” means all Client registration information and other data that Client provides to M2A in connection with providing the Services.
“Documentation” means the manuals, instructions, documentation and materials that M2A makes generally available to its Clients available and the specific documentation that M2A provides to Client hereunder.
“Services” means all of the products and services provided by M2A to Client under this Agreement and any Statement of Work.
“Statement of Work” means a description of specific services to be supplied and/or work undertaken for the Client set out in a document expressly agreed between the parties as a Statement of Work being undertaken subject to these TOS.
“Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Client.
“Updates” means any patch, revision, update or release to the Services delivered by M2A.
2.1 Services. Subject to all terms and conditions of this Agreement, M2A will use commercially reasonable efforts to provide the Services to Client and Client may access and use such Services in accordance with this Agreement. M2A may provide the Services to Client directly, or indirectly using contractors or other third-party suppliers or service providers.
2.1.1. M2A Software. If the Services include use of the M2A Software, then subject to the terms and conditions of this Agreement, M2A hereby grants Client a limited, non-sublicensable and non-exclusive license to access and make use of the M2A Software for the purposes and on the basis set out in the relevant Statement of Work solely in accordance with, and subject to, these TOS and any other agreement Client may enter into with M2A. Such license does not include, except as and to the extent otherwise expressly permitted by these Terms: (a) the collection, use, copying or distribution of any portion of the M2A Software; (b) any resale, commercial use, commercial exploitation, distribution, public performance or public display of the M2A Software; (c) modifying or otherwise making any derivative uses of the M2A Software, or any portion thereof; (d) use of data mining, robots or similar data gathering or extraction methods; (e) downloading (other than page caching) of any portion of the M2A Software, or any information contained therein; or (f) any use of the M2A Software other than for their intended purposes.
2.3 Security Measures; Client may access the Services as M2A instructs through a combination of one or more usernames and passwords. Client shall take full responsibility and liability for the security of each of its usernames and passwords, and shall be solely responsible for all use of the Services through such user names or passwords. Client agrees to immediately notify M2A of any unauthorised use of the Services or any other breach of security known to Client.
2.4 Prohibited Uses. Except as expressly permitted herein, Client agrees that it will not, nor allow any third-party on its behalf, to use or otherwise interact with the Services in a manner that:
- infringes or violates the intellectual property rights or any other rights of any other person or entity (including M2A);
- violates any law, rule or regulation;
- is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, pornographic, contains or depicts nudity, or otherwise objectionable, as determined by M2A in its sole discretion;
- jeopardizes the security of Client’s M2A account or anyone else’s (such as allowing someone else to log in to the Services as Client)
- attempts, in any manner, to obtain the password, account, or other security information from any other user;
- violates the security of any computer network, or cracks any passwords or security encryption codes;
- runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through the use of manual or automated means);
- copies or stores any significant portion of the Content;
- decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services;
- use any of M2A’s Confidential Information to create any software, Documentation or service that is similar to the Services or any Documentation provided in connection therewith;
- modify, translate, or otherwise create derivative works of any part of the Services or Documentation; or
- copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Services in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of M2A.
Client shall comply with all applicable local, state, national and international laws and regulations.
2.6 Changes to Services. M2A reserves the right to modify or discontinue any Services (in whole or in part) at any time.
2.7 Changes to Terms. M2A reserve the right to change the terms and conditions of this Agreement at any time, and if it does so, may bring material changes to Client’s attention by placing a notice on the M2A website, by sending Client an email, and/or by some other means. If Client doesn’t agree with the new terms and conditions it is free to reject them and terminate this Agreement.
2.8 Limitations. M2A will not be responsible or liable for any failure in the Services resulting from or attributable to: (a) Client’s Systems, Client Data or the Client Content, (b) network, telecommunications or other service or equipment failures outside of M2A’s facilities, (c) Client’s or third party’s products (including open source software utilised in the Services), services, negligence, acts or omissions, (d) any force majeure or causes beyond M2A’s reasonable control, (e) scheduled maintenance or (f) unauthorised access, breach of firewalls or other hacking by third parties.
2.9 Systems. Client shall obtain and operate all the Systems needed to connect to, access or otherwise use the Services, and provide all corresponding backup, recovery and maintenance services. Client shall ensure that all Systems are compatible with the Services. Client shall maintain the integrity and security of its Systems (physical, electronic and otherwise).
3. Support and Maintenance
3.1 Support. M2A will use commercially reasonable efforts to provide Client with support and maintenance services for the Services as agreed upon in any Statement of Work.
3.2 Updates. Unless otherwise agreed upon in an Order Form, M2A shall have no obligation to provide Updates, except that M2A will provide Client with any Update that it makes generally available without charge to its similar Clients.
4. Proprietary Rights
4.1 Services. Except for Client Content, M2A (and its licensors) own all right, title and interest in and to the Services and all modifications, enhancements and Updates to the Services (including all intellectual property and proprietary rights embodied therein). M2A reserves all rights not expressly granted hereunder. Client shall not take any action inconsistent with such rights. Client shall not alter, obscure or remove any trademark, patent legend or other proprietary or legal notice. Other than the express licenses set forth herein, this Agreement confers no license and no title of ownership in the Services or the underlying software pertaining to the Services and may not be construed as a license or sale of any rights in the software pertaining to the Services.
4.2 Client Content. Client owns all right, title and interest in and to the Client Content. Client hereby grants M2A a royalty-free, fully paid-up, irrevocable, worldwide license to use, process and otherwise exploit the Client Content as necessary to provide the Services to Client and its Clients. Client is responsible for all Client Content, and Client represents and warrants it has all rights necessary to grant the rights in the Client Content set forth in this Agreement.
4.3 Client Data. As between the parties, Client shall own all Client Data. M2A shall not disclose to third parties or use any Client Data except as reasonably necessary to provide the Services or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, during and after the term of this Agreement, M2A may use aggregated and anonymous Client Data, as combined with other M2A Clients’ data, to improve and/or market the Services or develop, market and sell new products and services; provided that Client is never identified as the source of such Client Data. Client hereby grants M2A a nonexclusive and royalty-free right and license to use the Client Data solely for the purposes described above.
4.4 Indemnity. Client agrees to defend, indemnify and hold harmless M2A and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (a) Client’s use of the Services, (b) violation of this Agreement, (c) the use of the Client Data or Client Content in connection with the provision of Services, or (d) Client’s violation of any applicable law, rule or regulation.
5.1 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees, contractors, and agents. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry, provided that the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.
5.2 Compelled Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, that prior to any such disclosure, the receiving party shall use reasonable efforts to: (a) promptly notify the disclosing party in writing of such requirement to disclose, and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
5.3 Effect of Termination. Promptly after any termination or expiration of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Notwithstanding the foregoing, M2A may retain and use Client Data, as combined with other M2A Clients’ data, solely to improve and/or market the Services, even after termination or expiration of the provision of Services to Client.
6.1 Fees. Client agrees to pay M2A the fees in the amounts and at the times specified in the relevant Statement of Work.
6.3 Payment Terms. Unless otherwise agreed upon in a Statement of Work, the Services are billed in advance on a monthly basis. M2A will not provide refunds or credits in the case of cancellations, downgrades, or when there are unused portions of the Services on an open account.
6.4 Taxes. All payments are exclusive of taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes). Client will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with Client’s activity in connection with the Services, excluding taxes based upon M2A’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
7. Limited Warranty and Disclaimers
7.1 Limited Warranty. M2A warrants that it will provide the Services in a professional manner consistent with accepted industry standards. Notwithstanding the foregoing, the Services may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by M2A to repair, maintain or upgrade the Services or for causes beyond M2A’s reasonable control. Client’s sole remedy and M2A’s sole liability for breach of this representation and warranty will be that M2A at M2A’s expense, repair or replace the Services so that the Services conform to such warranty.
7.2 Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. M2A DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, M2A HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
CLIENT UNDERSTANDS AND AGREES THAT ANY CLIENT DATA, CLIENT CONTENT, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON M2A’S SERVICES, SYSTEMS OR SERVERS MAY BE DELETED AT ANY TIME FOR ANY REASON IN M2A’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIM, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON M2A’S SERVICES, SYSTEMS OR SERVERS. CLIENT SHOULD BE ABSOLUTELY SURE TO KEEP SECURE COPIES OF YOUR DATA, INCLUDING CLIENT CONTENT, IN YOUR SYSTEMS OR IN OTHER SECURE STORAGE. CLIENT SHOULD NOT RELY ON M2A TO PROVIDE COPIES OF OR ACCESS TO ITS DATA OR CLIENT CONTENT.
8. Limitation of Liability
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL M2A BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL EVEN IF M2A HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9. Term and Termination
9.1 Term. This Agreement shall commence on the date that this Agreement is accepted or the applicable Statement of Work is executed by Client, whichever occurs first. This Agreement shall continue in effect for the term specified in the Statement of Work, unless this Agreement is terminated earlier as permitted in Section 9.2. At the end of such initial term, the Agreement will be extended automatically for additional terms equivalent to your initial term, unless the Statement of Work says otherwise or this Agreement is terminated earlier as permitted in this Section 9.1 or in Section 9.2. , Either party may elect not to have this Agreement extend automatically by giving written notice of such election to the other party at least one month prior to the end of the then current term. If the Client utilizes the Services under a Statement of Work, the Client is solely responsible for properly notifying M2A of its election not to have this Agreement automatically renew.
9.2 Termination. This Agreement may be earlier terminated by either party, in whole or in part: (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days after receiving written notice of such breach from the non-breaching party or immediately if, due to the nature of such material breach, it cannot be cured within 10 days, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
9.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that: (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and remedies for breach of this Agreement shall survive, and (b) the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Paid Version Payments) (only with respect to amounts incurred prior to the effective date of termination), 7.2 (Disclaimers), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 (Effects of Termination) shall survive. For the avoidance of doubt, M2A is under no obligation to provide a Client a copy of such Client’s archived Client Data upon any expiration or termination of this Agreement.
If Client is a resident of any country outside the European Union or the United States it understands and agrees that M2A stores and processes its personal information on computers located in the European Union or the United States, and that by providing any information to M2A, Client consents to the transfer of such information to the European Union or the United States.
11. Electronic Communications
The Client agrees to communicate with M2A electronically and consents to receive communications from M2A electronically. M2A may communicate with Client by: (a) email to Client’s email address indicated in its communications with M2A. Client agrees that all agreements, notices, disclosures and other communications that M2A provides to it electronically satisfy any legal requirement that such communications be in writing.
12. General Provisions
12.2 Governing Law. Client agrees that the Services will be deemed solely based in the United Kingdom; This Agreement shall be governed by and construed in accordance with the laws of England, without regard to its conflicts of law provisions.
12.4 Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5, the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of providing any security.
12.5 Notices. Except as otherwise provided any notice or communication hereunder shall be in writing and addressed to M2A at its address given above and to the Client at its address specified in the Statement of Work, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
12.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
12.7 Independent Contractors. Nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
12.8 Publicity. Client acknowledges and agrees that M2A has the right to issue a press release announcing the fact of this Agreement and describing the nature of their relationship hereunder. Provided M2A complies with Client’s brand guidelines as advised from time to time: (a) M2A shall have the right to list Client as a Client in written, oral and electronic materials which include the names of M2A’s Clients; and (ii) provide Client as a Client reference for M2A. Except as expressly permitted in this Agreement, M2A shall not use any trademark, service mark, trade name, or other name or logo of Company in any advertising or publicity and shall not issue any public statement concerning this Agreement or the Services rendered hereunder without the prior written consent of Company.
Version 13 May 2019